Commonwealth: National Broadband Network Companies Act 2011 (Cth)

National Broadband Network Companies Act 2011 No. 22, 2011 Compilation No. 8 Compilation date: 20 October 2023 Includes amendments up to: Act No. 76, 2023 Registered: 10 November 2023 About this compilation This compilation This is a compilation of the National Broadband Network Companies Act 2011 that shows the text of the law as amended and in force on 20 October 2023 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Objects 4 Simplified outline 5 Definitions 6 Crown to be bound 7 Extension to external Territories Part 2—Operations of NBN corporations Division 1—Simplified outline 8 Simplified outline Division 2—Rules about operations of NBN corporations Subdivision A—Supply of eligible services to be on wholesale basis 9 Supply of eligible services to be on wholesale basis 10 Exemption—transport authorities 11 Exemption—electricity supply bodies 12 Exemption—gas supply bodies 13 Exemption—water supply bodies 14 Exemption—sewerage services bodies 15 Exemption—storm water drainage services bodies 16 Exemption—State or Territory road authorities Subdivision B—Supply of other goods and services 17 Content services not to be supplied 18 Non‑communications services not to be supplied 19 Non‑communications goods not to be supplied Subdivision BA—Access to a telecommunications transmission tower owned or operated by an NBN corporation etc. 19A Access to a telecommunications transmission tower 19B Access to the site of a telecommunications transmission tower 19C Reasonableness—Ministerial determinations 19D Publication of access terms and conditions—towers 19E Publication of access terms and conditions—sites 19F Terms and conditions of access to be on a non‑discriminatory basis 19G Equipment 19H Eligible person 19J Site 19K Goods Subdivision C—Investment activities 20 Restriction of investment activities Subdivision D—Transitional 21 Transitional—pre‑commencement contractual obligations 22 Transitional—pre‑acquisition contractual obligations Division 3—Functional separation of NBN corporations 23 Contents of draft or final functional separation undertaking 24 Functional separation principles 25 Functional separation requirements determination 26 Draft functional separation undertaking to be given to the Communications Minister and the Finance Minister 27 Approval of draft functional separation undertaking by the Communications Minister and the Finance Minister 28 Time limit for making an approval decision 29 Effect of approval 30 Variation of final functional separation undertaking 31 Publication of final functional separation undertaking 32 Compliance with final functional separation undertaking Division 4—Divestiture of assets by NBN corporations 33 Directions about disposal of assets 34 Directions about transfer of assets to another NBN corporation 35 Advice from ACCC about disposal or transfer directions 36 Exemption from stamp duty—transfer in compliance with transfer direction Division 5—Carrier licence conditions etc. 37 Carrier licence condition 38 Service provider rule 39 Power to declare carrier licence conditions not limited 40 Power to determine service provider rules not limited Division 6—Special carrier licence conditions 41 Conditions about supply of carriage services by NBN corporations 42 Consultation with ACCC Part 3—Ownership and control of NBN Co Division 1—Simplified outline 43 Simplified outline Division 2—Commonwealth ownership and control of NBN Co Subdivision A—Commonwealth ownership provisions 44 Commonwealth ownership provisions 45 Commonwealth to retain ownership of NBN Co 46 Compliance by NBN Co Subdivision B—Termination of Commonwealth ownership provisions 47 Object of this Subdivision 48 Declaration by Communications Minister—whether national broadband network should be treated as built and fully operational 49 Productivity Commission inquiry 50 Declaration by Finance Minister—whether conditions suitable for an NBN Co sale scheme 51 Termination of Commonwealth ownership provisions Subdivision C—Sale by the Commonwealth of its shares in NBN Co 52 Simplified outline 53 When NBN Co sale scheme may be entered into and carried out 54 NBN Co sale scheme 55 Sale‑scheme hybrid securities 56 Exemption from stamp duty—transfer by the Commonwealth of its shares in NBN Co etc. 57 Authorisation of borrowing—issue of sale‑scheme hybrid securities 58 Appropriation—costs incurred in connection with an NBN Co sale scheme 59 Assistance given by NBN Co or the Board in connection with an NBN Co sale scheme 60 Giving of assistance—ancillary provisions 61 Reimbursement of expenses incurred in giving assistance 62 Commonwealth to be bound by Chapters 6CA, 6D and 7 of the Corporations Act 2001 63 Reduction of NBN Co's share capital 64 Alterations of NBN Co's constitution—notice to debenture holders 65 Alteration of NBN Co's constitution—Ministerial instrument 66 Use by the Commonwealth of information obtained from NBN Co or the Board 67 Agreements relating to the protection of information obtained from NBN Co or the Board 68 NBN Co's obligations to disclose information Division 3—Private ownership and control of NBN Co 69 Unacceptable private ownership or control situation 70 Prohibition of unacceptable private ownership or control situation 71 Remedial orders 72 Record‑keeping and giving of information 73 Validity of acts done in contravention of this Division 74 Acquisition of property Division 4—General provisions 75 Interest in a share 76 Extra‑territorial application Part 4—NBN Co's reporting obligations 77 Simplified outline 78 Application of this Part 79 Financial statements 80 Communications Minister and the Finance Minister to be notified of significant events 81 Keeping the Communications Minister and the Finance Minister informed 82 Corporate plan for NBN Co 83 Consequences of contraventions of this Part 84 This Part has effect despite the Corporations Act 2001 etc. 85 When this Part ceases to have effect Part 5—Anti‑avoidance 86 Anti‑avoidance Part 6—Injunctions 87 Simplified outline 88 Injunctions 89 Interim injunctions 90 Discharge etc. of injunctions 91 Certain limits on granting injunctions not to apply 92 Other powers of the Federal Court unaffected Part 7—Miscellaneous 93 Severability 94 Promotion of the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services 95 NBN Co is not a public authority 96 Public Works Committee Act 97 Winding‑up of NBN corporation not prevented by this Act 98 Rights of NBN corporation's shareholders, debenture holders and creditors to be subject to this Act 98A Exemption from stamp duty—matters related to the creation, development or operation of the national broadband network 98B Mapping data 99 Delegation 100 Compensation for acquisition of property 101 Regulations Schedule 1—NBN corporations 1 NBN corporations 2 Control of a company 3 Associate Schedule 2—Parliamentary Joint Committee on the Ownership of NBN Co 1 Parliamentary Joint Committee on the Ownership of NBN Co 2 Powers and proceedings of the Parliamentary Joint Committee 3 Duties of the Parliamentary Joint Committee 4 Winding up of the Parliamentary Joint Committee Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act relating to certain companies associated with the national broadband network, and for other purposes Part 1—Preliminary 1 Short title This Act may be cited as the National Broadband Network Companies Act 2011. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 12 April 2011 2. Sections 3 to 98 The later of: 13 April 2011 (a) the start of the day after this Act receives the Royal Assent; and (b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010. 2A. Section 98A 22 March 2011. 22 March 2011 2B. Sections 99 to 101 The later of: 13 April 2011 (a) the start of the day after this Act receives the Royal Assent; and (b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010. 3. Schedules 1 and 2 The later of: 13 April 2011 (a) the start of the day after this Act receives the Royal Assent; and (b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010. Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Objects (1) The main objects of this Act, when read together with Part XIC of the Competition and Consumer Act 2010, are as follows: (a) to provide a regulatory framework for NBN corporations that promotes the long‑term interests of end‑users of carriage services or of services provided by means of carriage services; (b) to ensure that NBN Co remains in Commonwealth ownership until the following events have occurred: (i) the Communications Minister has declared that, in his or her opinion, the national broadband network should be treated as built and fully operational; (ii) the Productivity Minister has caused to be tabled in both Houses of Parliament a report of an inquiry by the Productivity Commission; (iii) the Parliamentary Joint Committee on the Ownership of NBN Co has examined the Productivity Commission's report; (iv) the Finance Minister has declared that, in his or her opinion, conditions are suitable for the entering into and carrying out of an NBN Co sale scheme, and the declaration has taken effect; (c) to provide a framework for restrictions on private ownership or control of NBN Co. Note 1: Clause 1 of Schedule 1 provides that each of the following is an NBN corporation: (a) NBN Co; (b) NBN Tasmania; (c) a company over which NBN Co is in a position to exercise control. Note 2: For long‑term interests of end‑users of carriage services or of services provided by means of carriage services, see section 94. (2) The other objects of this Act, when read together with Part XIC of the Competition and Consumer Act 2010, are as follows: (a) to ensure that the supply of an eligible service by an NBN corporation is on a wholesale basis; (b) to ensure that an NBN corporation does not supply a content service; (c) to ensure that an NBN corporation does not supply a non‑communications service; (d) to ensure that an NBN corporation does not supply goods that are not for use in connection with the supply of an eligible service by the NBN corporation; (e) to restrict the investment activities of NBN corporations; (f) to provide a framework for the functional separation of NBN corporations; (g) to provide a framework for the divestiture of assets of NBN corporations; (h) to ensure that an NBN corporation provides open access to eligible services on a non‑discriminatory basis. 4 Simplified outline The following is a simplified outline of this Act: • An NBN corporation must not supply an eligible service to another person unless the other person is: (a) a carrier; or (b) a service provider. • An NBN corporation must not supply: (a) a content service; or (b) a non‑communications service; or (c) goods that are not for use in connection with the supply by an NBN corporation of an eligible service. • An NBN corporation may be required to prepare, and comply with, a functional separation undertaking. • The Communications Minister may give directions about the divestiture of assets of an NBN corporation. • A condition of a carrier licence held by an NBN corporation may require the NBN corporation to supply a specified carriage service. • A condition of a carrier licence held by an NBN corporation may prohibit the NBN corporation from supplying a specified carriage service. • Under provisions called the Commonwealth ownership provisions, the Commonwealth must retain ownership of NBN Co. • The Commonwealth ownership provisions cease to have effect after the following events have occurred: (a) the Communications Minister has declared that, in his or her opinion, the national broadband network should be treated as built and fully operational; (b) the Productivity Minister has caused to be tabled in both Houses of Parliament a report of an inquiry by the Productivity Commission; (c) the Parliamentary Joint Committee on the Ownership of NBN Co has examined the Productivity Commission's report; (d) the Finance Minister has declared that, in his or her opinion, conditions are suitable for the entering into and carrying out of an NBN Co sale scheme, and the declaration has taken effect. • NBN Co must take all reasonable steps to ensure that an unacceptable private ownership or control situation does not exist in relation to NBN Co. Note 1: Clause 1 of Schedule 1 provides that each of the following is an NBN corporation: (a) NBN Co; (b) NBN Tasmania; (c) a company over which NBN Co is in a position to exercise control. Note 2: The Parliamentary Joint Committee on the Ownership of NBN Co is constituted under Schedule 2. 5 Definitions In this Act: ACCC means the Australian Competition and Consumer Commission. Australia, when used in a geographical sense, includes the external Territories. authority includes the following: (a) a Department of the government of the Commonwealth; (b) a Department of the government of a State; (c) a Department of the government of a Territory. bank has the same meaning as in the Public Governance, Performance and Accountability Act 2013. Board means the board of directors of NBN Co. business unit, in relation to an NBN corporation, means a part of the NBN corporation. carriage service has the same meaning as in the Telecommunications Act 1997. carrier has the same meaning as in the Telecommunications Act 1997. carrier licence has the same meaning as in the Telecommunications Act 1997. carry has the same meaning as in the Telecommunications Act 1997. charge has the same meaning as in the Corporations Act 2001. Commonwealth ownership provisions means sections 45 and 46. communications has the same meaning as in the Telecommunications Act 1997. Communications Minister means the Minister who administers this Act. constitution, in relation to NBN Co, has the same meaning as in the Corporations Act 2001. constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies. content service has the same meaning as in the Telecommunications Act 1997. debenture has the same meaning as in the Corporations Act 2001. declared pre‑termination period has the meaning given by section 48. declared sale deferral period has the meaning given by section 50. declared service has the same meaning as in Part XIC of the Competition and Consumer Act 2010. Department of Finance means the Department administered by the Finance Minister. draft functional separation undertaking means a draft functional separation undertaking under Division 3 of Part 2. electricity supply body means an authority, or a body corporate, that carries on a business, or performs a function, of: (a) generating, transmitting, distributing or supplying electricity; or (b) managing the generation, transmission, distribution or supply of electricity. eligible service has the same meaning as in section 152AL of the Competition and Consumer Act 2010. engage in conduct means: (a) do an act; or (b) omit to perform an act. Federal Court means the Federal Court of Australia. final functional separation undertaking means a final functional separation undertaking under Division 3 of Part 2. Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013. financial product has the same meaning as in Division 3 of Part 7.1 of the Corporations Act 2001. functional includes organisational. functional separation principles has the meaning given by subsection 24(1). functional separation requirements determination means a determination under subsection 25(1). gas supply body means an authority, or a body corporate, that carries on a business, or performs a function, of: (a) transmitting, distributing or supplying natural gas; or (b) managing the transmission, distribution or supply of natural gas. hybrid‑security issuer company has the meaning given by section 54. intellectual property rights includes rights associated with: (a) a patent; or (b) copyright; or (c) a design; or (d) a trade secret; or (e) know‑how. listed carriage service has the same meaning as in the Telecommunications Act 1997. listed disclosing entity has the same meaning as in the Corporations Act 2001. listing market, in relation to a listed disclosing entity, has the same meaning as in the Corporations Act 2001. listing rules of a market has the same meaning as in the Corporations Act 2001. national broadband network means a national telecommunications network for the high‑speed carriage of communications, where an NBN corporation has been, is, or is to be, involved in the creation or development of the network. To avoid doubt, it is immaterial whether the creation or development of the network is, to any extent, attributable to: (a) the acquisition of assets that were used, or for use, in connection with another telecommunications network; or (b) the obtaining of access to assets that are also used, or for use, in connection with another telecommunications network. NBN Co means NBN Co Limited (ACN 136 533 741), as the company exists from time to time (even if its name is later changed). NBN corporation has the meaning given by clause 1 of Schedule 1. NBN Co sale scheme has the meaning given by section 54. NBN Tasmania means NBN Tasmania Limited (ACN 138 338 271), as the company exists from time to time (even if its name is later changed). non‑communications service means a service other than: (a) an eligible service; or (b) a content service; or (c) a service that is ancillary or incidental to the supply by an NBN corporation of an eligible service; or (d) an advisory or consulting service that relates to: (i) the supply of an eligible service; or (ii) goods for use in connection with the supply of an eligible service; or (iii) facilities (within the meaning of the Telecommunications Act 1997); or (e) the provision, grant or conferral (whether by way of a licence or otherwise) of intellectual property rights that relate to: (i) the supply of an eligible service; or (ii) goods for use in connection with the supply of an eligible service; or (iii) facilities (within the meaning of the Telecommunications Act 1997). Parliamentary Joint Committee on the Ownership of NBN Co means the Parliamentary Joint Committee on the Ownership of NBN Co constituted under Schedule 2. Productivity Minister means the Minister administering the Productivity Commission Act 1998. rail corporation means a body corporate that manages or operates either or both of the following: (a) rail transport services; (b) rail transport infrastructure. retail carriage service provider means a carriage service provider who supplies a listed carriage service to another person who is neither: (a) a carrier; nor (b) a service provider. sale‑scheme hybrid security has the meaning given by section 55. sale‑scheme trust deed has the meaning given by section 54. sale‑scheme trustee has the meaning given by section 54. securities (except in section 55) includes: (a) shares; and (b) debentures. service provider has the same meaning as in the Telecommunications Act 1997. sewerage services body means an authority, or a body corporate, that carries on a business, or performs a function, of supplying sewerage services. State or Territory road authority means an authority that has responsibility for the management, regulation or control of motor traffic in a State or Territory. storm water drainage services means services that consist of draining storm water. storm water drainage services body means an authority, or a body corporate, that carries on a business, or performs a function, of supplying storm water drainage services. telecommunications market has the same meaning as in Part XIB of the Competition and Consumer Act 2010. telecommunications network has the same meaning as in the Telecommunications Act 1997. telecommunications transmission tower has the same meaning as in Part 5 of Schedule 1 to the Telecommunications Act 1997. unacceptable private ownership or control situation has the meaning given by section 69. voting share has the same meaning as in the Corporations Act 2001. water supply body means an authority, or a body corporate, that carries on a business, or performs a function, of supplying water. 6 Crown to be bound (1) This Act binds the Crown in each of its capacities. (2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence. (3) The protection in subsection (2) does not apply to an authority of the Crown. 7 Extension to external Territories This Act extends to every external Territory. Part 2—Operations of NBN corporations Division 1—Simplified outline 8 Simplified outline The following is a simplified outline of this Part: • An NBN corporation must not supply an eligible service to another person unless the other person is: (a) a carrier; or (b) a service provider. • An NBN corporation must not supply: (a) a content service; or (b) a non‑communications service; or (c) goods that are not for use in connection with the supply by an NBN corporation of an eligible service. • An NBN corporation's investment activities are restricted. • An NBN corporation may be required to prepare a draft functional separation undertaking. • A final functional separation undertaking is a draft functional separation undertaking that has been approved by the Communications Minister. • An NBN corporation must comply with a final functional separation undertaking given by the NBN corporation. • The Communications Minister may give directions about the divestiture of assets of an NBN corporation. • A condition of a carrier licence held by an NBN corporation may require the NBN corporation to supply a specified carriage service. • A condition of a carrier licence held by an NBN corporation may prohibit the NBN corporation from supplying a specified carriage service. Note 1: Clause 1 of Schedule 1 provides that each of the following is an NBN corporation: (a) NBN Co; (b) NBN Tasmania; (c) a company over which NBN Co is in a position to exercise control. Note 2: The Parliamentary Joint Committee on the Ownership of NBN Co is constituted under Schedule 2. Division 2—Rules about operations of NBN corporations Subdivision A—Supply of eligible services to be on wholesale basis 9 Supply of eligible services to be on wholesale basis An NBN corporation must not supply an eligible service to another person unless the other person is: (a) a carrier; or (b) a service provider. 10 Exemption—transport authorities (1) Section 9 does not apply if: (a) both: (i) the eligible service is a carriage service; and (ii) the sole use of the carriage service is use by Airservices Australia to carry communications necessary or desirable for the workings of aviation services; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection. (1A) Paragraph (1)(a) does not apply to a carriage service supplied to Airservices Australia unless the carriage service is supplied on the basis that Airservices Australia must not re‑supply the carriage service. (2) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by a State or Territory transport authority to carry communications necessary or desirable for the workings of the following services: (i) train services of a kind provided by the authority; (ii) bus or other road services of a kind provided by the authority; (iii) tram services of a kind provided by the authority; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection. (2A) Paragraph (2)(a) does not apply to a carriage service supplied to a State or Territory transport authority unless the carriage service is supplied on the basis that the State or Territory transport authority must not re‑supply the carriage service. (3) Section 9 does not apply if: (a) both: (i) the eligible service is a carriage service; and (ii) the sole use of the carriage service is use by a rail corporation to carry communications necessary or desirable for the workings of train services; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this subsection. (4) Paragraph (3)(a) does not apply to a carriage service supplied to a rail corporation unless the carriage service is supplied on the basis that the rail corporation must not re‑supply the carriage service. 11 Exemption—electricity supply bodies (1) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by an electricity supply body to carry communications necessary or desirable for: (i) managing the generation, transmission, distribution or supply of electricity; or (ii) charging for the supply of electricity; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section. (2) Paragraph (1)(a) does not apply to a carriage service supplied to an electricity supply body unless the carriage service is supplied on the basis that the electricity supply body must not re‑supply the carriage service. 12 Exemption—gas supply bodies (1) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by a gas supply body to carry communications necessary or desirable for: (i) managing the transmission or distribution of natural gas in a pipeline; or (ii) charging for the supply of natural gas transmitted or distributed in a pipeline; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section. (2) Paragraph (1)(a) does not apply to a carriage service supplied to a gas supply body unless the carriage service is supplied on the basis that the gas supply body must not re‑supply the carriage service. 13 Exemption—water supply bodies (1) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by a water supply body to carry communications necessary or desirable for: (i) managing the distribution of water in a pipeline; or (ii) charging for the supply of water distributed in a pipeline; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section. (2) Paragraph (1)(a) does not apply to a carriage service supplied to a water supply body unless the carriage service is supplied on the basis that the water supply body must not re‑supply the carriage service. 14 Exemption—sewerage services bodies (1) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by a sewerage services body to carry communications necessary or desirable for: (i) managing the supply of sewerage services; or (ii) charging for the supply of sewerage services; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section. (2) Paragraph (1)(a) does not apply to a carriage service supplied to a sewerage services body unless the carriage service is supplied on the basis that the sewerage services body must not re‑supply the carriage service. 15 Exemption—storm water drainage services bodies (1) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by a storm water drainage services body to carry communications necessary or desirable for: (i) managing the supply of storm water drainage services; or (ii) charging for the supply of storm water drainage services; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section. (2) Paragraph (1)(a) does not apply to a carriage service supplied to a storm water drainage services body unless the carriage service is supplied on the basis that the storm water drainage services body must not re‑supply the carriage service. 16 Exemption—State or Territory road authorities (1) Section 9 does not apply if: (a) the eligible service is a carriage service, and the sole use of the carriage service is use by a State or Territory road authority to carry communications necessary or desirable for the management or control of road traffic; or (b) the eligible service is a service that facilitates the supply of a carriage service covered by paragraph (a) of this section. (2) Paragraph (1)(a) does not apply to a carriage service supplied to a State or Territory road authority unless the carriage service is supplied on the basis that the State or Territory road authority must not re‑supply the carriage service. Subdivision B—Supply of other goods and services 17 Content services not to be supplied An NBN corporation must not supply a content service to another person. 18 Non‑communications services not to be supplied An NBN corporation must not supply a non‑communications service to another person. 19 Non‑communications goods not to be supplied An NBN corporation must not supply goods to another person unless: (a) the goods are for use in connection with the supply, or prospective supply, of an eligible service by the NBN corporation; or (b) the NBN corporation did not obtain the goods for the purpose of supplying the goods; or (c) the NBN corporation: (i) obtained the goods for the purpose of supplying the goods in connection with the supply, or prospective supply, of an eligible service by the NBN corporation; and (ii) considers the goods to be excess to the NBN corporation's requirements. Subdivision BA—Access to a telecommunications transmission tower owned or operated by an NBN corporation etc. 19A Access to a telecommunications transmission tower (1) If a telecommunications transmission tower (the first tower) is owned or operated by an NBN corporation, the NBN corporation must, if requested to do so by an eligible person, give the eligible person access to the first tower if: (a) the access is for the sole purpose of enabling the eligible person to: (i) install particular equipment on the first tower; or (ii) maintain, operate or remove particular equipment installed by the eligible person on the first tower; and (b) in a case where subparagraph (a)(i) applies—the NBN corporation is satisfied that the installation of the equipment is technically feasible; and (c) in a case where: (i) subparagraph (a)(i) applies; and (ii) there is another telecommunications transmission tower in the vicinity of the first tower that is not owned or operated by the NBN corporation; the NBN corporation is reasonably satisfied that it would not be reasonable for the eligible person to install the equipment on the other tower. Note 1: For eligible person, see section 19H. Note 2: For equipment, see section 19G. Note 3: See section 19C (reasonableness). Exemptions from sections 9, 18 and 19 (2) If the NBN corporation gives the eligible person access to the first tower in compliance with subsection (1), sections 9, 18 and 19 do not apply to: (a) the giving of access; or (b) the supply to the eligible person of goods that are incidental to the giving of access. Limits on subsection (1) obligation (3) Subsection (1) does not impose an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects: (a) preventing an NBN corporation from reserving sufficient space on the first tower to be able to meet the NBN corporation's reasonably anticipated requirements in relation to the installation of equipment, measured at the time when the request was made; (b) preventing a person (other than an NBN corporation) who has already installed equipment on the first tower from obtaining access to sufficient space on the first tower to be able to meet the person's reasonably anticipated requirements in relation to the installation of equipment, measured at the time when the request was made; (c) depriving any person of a protected contractual right. (4) For the purposes of paragraph (3)(c), protected contractual right means a right under a contract that was in force at the commencement of this section. (5) Subsection (1) does not impose an obligation to give an eligible person access to the first tower if: (a) the eligible person is included in a class of persons specified under paragraph 19H(2)(a); and (b) the imposition of the obligation would be inconsistent with a limitation or restriction that, under paragraph 19H(2)(b), is applicable to that class. Exemption from compliance with subsection (1)—Ministerial determination (6) The Minister may, by legislative instrument, determine that subsection (1) does not impose an obligation if the conditions specified in the determination are satisfied. Technically feasible (7) For the purposes of this section, in determining whether it is technically feasible to install particular equipment on a telecommunications transmission tower, an NBN corporation must have regard to: (a) whether the installation of the equipment is likely to result in significant difficulties of a technical or engineering nature; and (b) whether the installation of the equipment 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 the installation of the equipment 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 are relevant. (8) For the purposes of subsection (7), facility has the same meaning as in the Telecommunications Act 1997. 19B Access to the site of a telecommunications transmission tower (1) If: (a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site, and: (i) the site is owned, occupied or controlled by the NBN corporation; or (ii) the NBN corporation has a right (whether conditional or unconditional) to use the site; and (b) the NBN corporation is or was required by subsection 19A(1) to give an eligible person access to the tower for the purpose of enabling the eligible person to: (i) install particular equipment on the tower; or (ii) maintain, operate or remove particular equipment installed by the eligible person on the tower; the NBN corporation must, if requested to do so by the eligible person: (c) give the eligible person access to the site for the sole purpose of enabling the eligible person to: (i) install the equipment on the tower; or (ii) maintain, operate or remove the equipment installed by the eligible person on the tower; and (d) give the eligible person access to the site for the sole purpose of enabling the eligible person to: (i) install particular equipment on the site, where that equipment is for use in connection with the equipment mentioned in paragraph (b); or (ii) maintain, operate or remove the equipment first mentioned in subparagraph (i). Note 1: For eligible person, see section 19H. Note 2: For site, see section 19J. Note 3: For equipment, see section 19G. Exemptions from sections 9, 18 and 19 (2) If the NBN corporation gives the eligible person access to the site in compliance with subsection (1), sections 9, 18 and 19 do not apply to: (a) the giving of access; or (b) the supply to the eligible person of goods that are incidental to the giving of access. Exemption from compliance with subsection (1)—Ministerial determination (3) The Minister may, by legislative instrument, determine that subsection (1) does not impose an obligation if the conditions specified in the determination are satisfied. 19C Reasonableness—Ministerial determinations (1) The Minister may, by legislative instrument: (a) determine that, if a condition specified in the determination is satisfied then, for the purposes of paragraph 19A(1)(c), it is taken to be reasonable for an eligible person to install equipment on a telecommunications transmission tower; or (b) determine that, if a condition specified in the determination is satisfied then, for the purposes of paragraph 19A(1)(c), it is taken not to be reasonable for an eligible person to install equipment on a telecommunications transmission tower. Note: For eligible person, see section 19H. (2) A determination under subsection (1) must be an instrument of a legislative character. 19D Publication of access terms and conditions—towers (1) If a telecommunications transmission tower is owned or operated by an NBN corporation, the NBN corporation must publish on its website: (a) the terms and conditions relating to price or a method of ascertaining price; and (b) other terms and conditions; on which the NBN corporation offers to: (c) give an eligible person access to the tower, in compliance with subsection 19A(1), for the purpose of enabling the eligible person to: (i) install particular equipment; or (ii) maintain, operate or remove particular equipment; and (d) supply to an eligible person goods that are incidental to the giving of that access. Note: For eligible person, see section 19H. (2) If: (a) a telecommunications transmission tower is owned or operated by an NBN corporation; and (b) an eligible person requests the NBN corporation to: (i) give the eligible person access to the tower; or (ii) supply to the eligible person goods that are incidental to giving the eligible person access to the tower; and (c) as a result of the request, the NBN corporation has an obligation under subsection 19A(1) to give access to the tower or supply the goods, as the case requires; and (d) in accordance with subsection (1), the NBN corporation has published on its website: (i) the terms and conditions relating to price or a method of ascertaining price; and (ii) other terms and conditions; on which the NBN corporation offers to give access to the tower or supply the goods, as the case requires; and (e) the eligible person requests the NBN corporation to enter into an agreement that: (i) relates to the access to the tower or the supply of the goods, as the case requires; and (ii) sets out terms and conditions that are the same as the terms and conditions published as mentioned in paragraph (d); the NBN corporation must comply with the request mentioned in paragraph (e). (3) If: (a) a telecommunications transmission tower is owned or operated by an NBN corporation; and (b) an eligible person requests the NBN corporation to: (i) give the eligible person access to the tower; or (ii) supply to the eligible person goods that are incidental to giving the eligible person access to the tower; and (c) as a result of the request, the NBN corporation has an obligation under subsection 19A(1) to give access to the tower or supply the goods, as the case requires; and (d) the access to the tower, or the supply of the goods, is not covered by an agreement between the NBN corporation and the eligible person; the terms and conditions on which the access is given, or the goods are supplied, as the case may be, are the terms and conditions that were published on the NBN corporation's website, in accordance with subsection (1), at the time when the request was made. 19E Publication of access terms and conditions—sites (1) If: (a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and (b) either: (i) the site is owned, occupied or controlled by the NBN corporation; or (ii) the NBN corporation has a right (whether conditional or unconditional) to use the site; the NBN corporation must cause to be published on its website: (c) the terms and conditions relating to price or a method of ascertaining price; and (d) other terms and conditions; on which it offers to: (e) give an eligible person access to the site, in compliance with subsection 19B(1), for the purpose of enabling the eligible person to: (i) install particular equipment; or (ii) maintain, operate or remove particular equipment; and (f) supply to an eligible person goods that are incidental to the giving of that access. Note 1: For site, see section 19J. Note 2: For eligible person, see section 19H. (2) If: (a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and (b) either: (i) the site is owned, occupied or controlled by the NBN corporation; or (ii) the NBN corporation has a right (whether conditional or unconditional) to use the site; and (c) an eligible person requests the NBN corporation to: (i) give the eligible person access to the site; or (ii) supply to the eligible person goods that are incidental to giving the eligible person access to the site; and (d) as a result of the request, the NBN corporation has an obligation under subsection 19B(1) to give access to the site or supply the goods, as the case requires; and (e) in accordance with subsection (1), the NBN corporation has published on its website: (i) the terms and conditions relating to price or a method of ascertaining price; and (ii) other terms and conditions; on which the NBN corporation offers to give access to the site or supply the goods, as the case requires; and (f) the eligible person requests the NBN corporation to enter into an agreement that: (i) relates to the access to the site or the supply of the goods, as the case requires; and (ii) sets out terms and conditions that are the same as the terms and conditions published as mentioned in paragraph (e); the NBN corporation must comply with the request mentioned in paragraph (f). (3) If: (a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and (b) either: (i) the site is owned, occupied or controlled by the NBN corporation; or (ii) the NBN corporation has a right (whether conditional or unconditional) to use the site; and (c) an eligible person requests the NBN corporation to: (i) give the eligible person access to the site; or (ii) supply to the eligible person goods that are incidental to giving the eligible person access to the site; and (d) as a result of the request, the NBN corporation has an obligation under subsection 19B(1) to give access to the site or supply the goods, as the case requires; and (e) the access to the site, or the supply of the goods, is not covered by an agreement between the NBN corporation and the eligible person; the terms and conditions on which the access is given, or the goods are supplied, as the case may be, are the terms and conditions that were published on the NBN corporation's website, in accordance with subsection (1), at the time when the request was made. 19F Terms and conditions of access to be on a non‑discriminatory basis Telecommunications transmission towers (1) If a telecommunications transmission tower is owned or operated by an NBN corporation, the NBN corporation must not, in determining: (a) the terms and conditions relating to price or a method of ascertaining price; and (b) other terms and conditions; on which the NBN corporation: (c) gives an eligible person access to the tower, in compliance with subsection 19A(1), for the purpose of enabling the eligible person to: (i) install particular equipment; or (ii) maintain, operate or remove particular equipment; and (d) supplies to an eligible person goods that are incidental to the giving of that access; discriminate between eligible persons who seek or obtain access in such circumstances. Note: For eligible person, see section 19H. Sites (2) If: (a) a telecommunications transmission tower owned or operated by an NBN corporation is situated on a particular site; and (b) either: (i) the site is owned, occupied or controlled by the NBN corporation; or (ii) the NBN corporation has a right (whether conditional or unconditional) to use the site; the NBN corporation must not, in determining: (c) the terms and conditions relating to price or a method of ascertaining price; and (d) other terms and conditions; on which the NBN corporation: (e) gives an eligible person access to the site, in compliance with subsection 19B(1), for the purpose of enabling the eligible person to: (i) install particular equipment; or (ii) maintain, operate or remove particular equipment; and (f) supplies to an eligible person goods that are incidental to the giving of that access; discriminate between eligible persons who seek or obtain access in such circumstances. 19G Equipment (1) For the purposes of this Subdivision, equipment means: (a) a facility (within the meaning of the Telecommunications Act 1997); or (b) an antenna; or (c) a measuring device; or (d) an apparatus; or (e) a thing that belongs to a class of things specified under subsection (2). (2) The Minister may, by legislative instrument, specify one or more classes of things for the purposes of paragraph (1)(e). 19H Eligible person (1) For the purposes of this Subdivision, eligible person means: (a) a police force or service; or (b) a fire service; or (c) an ambulance service; or (d) a State or Territory emergency services organisation; or (e) a person who is included in a class of persons specified under paragraph (2)(a). (2) The Minister may, by legislative instrument, do any or all of the following: (a) specify one or more classes of persons for the purposes of paragraph (1)(e); (b) for a class specified under paragraph (a)—declare that one or more specified limitations or restrictions are applicable to that class for the purposes of subsection 19A(5). (3) The Minister must not make a legislative instrument under subsection (2) unless the Minister is satisfied that it is in the public interest to do so. (4) Before making a legislative instrument under subsection (2), the Minister must consult the Minister who administers the Australian Federal Police Act 1979. 19J Site For the purposes of this Subdivision, site means: (a) land; or (b) a building on land; or (c) a structure on land. 19K Goods For the purposes of this Subdivision, goods includes electricity. Subdivision C—Investment activities 20 Restriction of investment activities (1) An NBN corporation must not invest money of the NBN corporation unless: (a) the investment is related to the supply, or prospective supply, of eligible services by the NBN corporation; or (b) both: (i) the investment is related to the supply, or prospective supply, of goods; and (ii) the goods are for use in connection with the supply, or prospective supply, of an eligible service by the NBN corporation; or (c) both: (i) the investment is in shares in a company; and (ii) the company carries on, proposes to carry on, or has the object of carrying on, a business that consists of or includes the supply of a carriage service; or (d) the investment is: (i) an investment in securities of the Commonwealth or of a State or Territory; or (ii) an investment in securities guaranteed by the Commonwealth, a State or a Territory; or (iii) a deposit with a bank, including a deposit evidenced by a certificate of deposit; or (iv) any other form of investment prescribed by rules made for the purposes of subparagraph 58(8)(a)(iii) of the Public Governance, Performance and Accountability Act 2013 (section 58 of that Act deals with investment by the Commonwealth). (2) Paragraphs (1)(c) and (d) apply both within and outside Australia. Subdivision D—Transitional 21 Transitional—pre‑commencement contractual obligations Scope (1) This section applies if, immediately before this section commences, an NBN corporation has an obligation (the pre‑existing obligation) under a contract to: (a) supply services; or (b) supply goods; or (c) invest money. For this purpose, it is immaterial whether the obligation is a contingent obligation Exemption (2) Sections 18 to 20 do not apply to: (a) a supply of goods; or (b) a supply of services; or (c) an investment; to the extent that the supply or investment is in fulfilment of the pre‑existing obligation. 22 Transitional—pre‑acquisition contractual obligations Scope (1) This section applies if: (a) at a particular time (the start time), a company other than NBN Co becomes an NBN corporation; and (b) immediately before the start time, the company has an obligation (the pre‑existing obligation) under a contract to: (i) supply services; or (ii) supply goods; or (iii) invest money. For this purpose, it is immaterial whether the obligation is a contingent obligation Exemption (2) Sections 18 to 20 do not apply to: (a) a supply of goods; or (b) a supply of services; or (c) an investment; to the extent that the supply or investment is in fulfilment of the pre‑existing obligation. Division 3—Functional separation of NBN corporations 23 Contents of draft or final functional separation undertaking (1) A draft or final functional separation undertaking given by an NBN corporation must: (a) comply with the functional separation principles that are applicable to the NBN corporation; and (b) comply with such requirements as are specified in a functional separation requirements determination that is applicable to the NBN corporation. Note 1: For the functional separation principles, see section 24. Note 2: For the functional separation requirements determination, see section 25. (2) If a final functional separation undertaking 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. 24 Functional separation principles (1) The Communications Minister and the Finance Minister may, by writing, determine that specified principles are functional separation principles for the purposes of the application of this Act to a specified NBN corporation. Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901. (2) Principles determined under subsection (1) must include: (a) the principle that the NBN corporation should maintain 2 or more specified business units; and (b) the principle that the NBN corporation should maintain arm's length functional separation between the specified business units; and (c) the principle that the NBN corporation should have systems, procedures and practices that relate to: (i) compliance with a final functional separation undertaking given by the NBN corporation; and (ii) monitoring of, and reporting on, compliance with the final functional separation undertaking; and (iii) the development of performance measures relating to compliance with the final functional separation undertaking; and (iv) independent audit, and other checks, of compliance with the final functional separation undertaking. (3) Subsection (2) does not limit subsection (1). (5) A determination under subsection (1) is not a legislative instrument. 25 Functional separation requirements determination (1) The Communications Minister and the Finance Minister may make a written determination (a functional separation requirements determination) specifying requirements to be complied with by a draft or final functional separation undertaking given by a specified NBN corporation. (2) A functional separation requirements determination may deal with the manner in which the functional separation principles are to be implemented. (3) Subsection (2) does not limit subsection (1). (4) The Communications Minister and the Finance Minister must ensure that a functional separation requirements determination relating to an NBN corporation comes into force within 90 days after the first or only determination is made under subsection 24(1) in relation to the NBN corporation. (5) A determination under subsection (1) is not a legislative instrument. 26 Draft functional separation undertaking to be given to the Communications Minister and the Finance Minister (1) An NBN corporation must give the Communications Minister and the Finance Minister a draft functional separation undertaking: (a) within 90 days after the first or only functional separation requirements determination in relation to the NBN corporation comes into force; or (b) if a longer period is specified in an instrument under subsection (2)—within that longer period. (2) The Communications Minister and the Finance Minister may, by writing, specify a period for the purposes of paragraph (1)(b). (3) The Communications Minister and the Finance Minister may, by writing, vary a subsection (2) instrument. (4) A period specified in a subsection (2) instrument may be a period ascertained wholly or partly by reference to the occurrence of a specified event. (5) The Communications Minister and the Finance Minister do not have a duty to consider whether to exercise the power to make or vary a subsection (2) instrument, whether they are requested to do so by the NBN corporation or by any other person, or in any other circumstances. (6) The Communications Minister and the Finance Minister must cause a copy of an instrument under subsection (2) or (3) to be published on the Department's website. (7) An instrument under subsection (2) or (3) is not a legislative instrument. 27 Approval of draft functional separation undertaking by the Communications Minister and the Finance Minister (1) This section applies if an NBN corporation gives the Communications Minister and the Finance Minister a draft functional separation undertaking (the original undertaking). (2) The Communications Minister and the Finance Minister must, by writing: (a) approve the original undertaking; or (b) both: (i) vary the original undertaking; and (ii) approve the original undertaking as varied; or (c) both: (i) determine that the NBN corporation is taken to have given the Communications Minister and the Finance Minister another draft functional separation undertaking (the replacement undertaking) in the terms specified in the determination, instead of the original undertaking; and (ii) approve the replacement undertaking. Consultation (3) Before making a decision under subsection (2), the Communications Minister and the Finance Minister must: (a) cause to be published on the Department's website a notice: (i) setting out the original undertaking; and (ii) inviting persons to make submissions to the Communications Minister and the Finance Minister about the original undertaking within 14 days after the notice is published; and (b) give the ACCC a copy of the notice; and (c) cause to be published on the Department's website a copy of each submission received within the 14‑day period mentioned in paragraph (a); and (d) consider any submissions received within the 14‑day period mentioned in paragraph (a); and (e) ask the ACCC to give advice to the Communications Minister and the Finance Minister, within 44 days after the notice is published, about the original undertaking; and (f) have regard to any advice given by the ACCC. Consultation—variation of original undertaking (4) Before making a decision under paragraph (2)(b) to approve the original undertaking as varied, the Communications Minister and the Finance Minister must: (a) give the NBN corporation a notice: (i) setting out the original undertaking as proposed to be varied; and (ii) inviting the NBN corporation to make submissions to the Communications Minister and the Finance Minister, within 14 days after the notice is given, about the original undertaking as proposed to be varied; and (b) consider any submissions received from the NBN corporation within the 14‑day period mentioned in paragraph (a). Consultation—replacement undertaking (5) Before making a decision under paragraph (2)(c) to approve the replacement undertaking, the Communications Minister and the Finance Minister must: (a) give the NBN corporation a notice: (i) setting out the proposed replacement undertaking; and (ii) inviting the NBN corporation to make submissions to the Communications Minister and the Finance Minister about the proposed replacement undertaking within 14 days after the notice is given; and (b) consider any submissions received from the NBN corporation within the 14‑day period mentioned in paragraph (a). Advice by the ACCC (6) Subsection (3) does not, by implication, prevent the Communications Minister and the Finance Minister from asking the ACCC to give the Communications Minister and the Finance Minister additional advice about a matter arising under this section. Notification of decision (7) As soon as practicable after making a decision under subsection (2), the Communications Minister and the Finance Minister must notify the NBN corporation in writing of the decision. Instrument is not a legislative instrument (8) An instrument made under subsection (2) is not a legislative instrument. 28 Time limit for making an approval decision (1) This section applies if an NBN corporation gives the Communications Minister and the Finance Minister a draft functional separation undertaking (the original undertaking). (2) The Communications Minister and the Finance Minister must use their best endeavours to make a decision under subsection 27(2) in relation to the original undertaking within 6 months after the original undertaking was given to the Communications Minister and the Finance Minister. 29 Effect of approval (1) If the Communications Minister and the Finance Minister approve a draft functional separation undertaking under subsection 27(2), the undertaking becomes a final functional separation undertaking. (2) A final functional separation undertaking given by an NBN corporation comes into force on the day after notice of the relevant decision is given to the NBN corporation in accordance with subsection 27(7). (3) A final functional separation undertaking may not be withdrawn. Undertaking is not a legislative instrument (4) A final functional separation undertaking is not a legislative instrument. 30 Variation of final functional separation undertaking (1) This section applies if a final functional separation undertaking given by an NBN corporation is in force. Variation (2) The Communications Minister and the Finance Minister may, in writing, vary the final functional separation undertaking: (a) at the request of the NBN corporation or another person; or (b) on the initiative of the Communications Minister and the Finance Minister. (3) The Communications Minister and the Finance Minister do not have a duty to consider whether to exercise the power to vary a final functional separation undertaking, whether they are requested to do so by the NBN corporation or by any other person, or in any other circumstances. Consultation (4) Before varying a final functional separation undertaking, the Communications Minister and the Finance Minister must: (a) cause to be published on the Department's website a notice: (i) setting out the proposed variation; and (ii) inviting persons to make submissions to the Communications Minister and the Finance Minister about the proposed variation within 14 days after the notice is published; and (b) give the ACCC a copy of the notice; and (c) cause to be published on the Department's website a copy of each submission received within the 14‑day period mentioned in paragraph (a); and (d) consider any submissions received within the 14‑day period mentioned in paragraph (a); and (e) ask the ACCC to give advice to the Communications Minister and the Finance Minister, within 44 days after the notice is published, about the proposed variation; and (f) have regard to any advice given by the ACCC. Minor variation (5) Subsec