Commonwealth: Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000 (Cth)

Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000 No. 142, 2000 Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000 No. 142, 2000 An Act to amend the Telecommunications (Consumer Protection and Service Standards) Act 1999, and for related purposes Contents 1 Short title................................... 2 Commencement............................... 3 Schedule(s).................................. Schedule 1—New Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 Schedule 2—Application and transitional provisions Schedule 3—Consequential and other amendments Telecommunications Act 1997 Telecommunications (Consumer Protection and Service Standards) Act 1999 Schedule 4—Levy distribution for the 1998‑1999 financial year Schedule 5—Levy distribution for the 1999‑2000 financial year Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000 No. 142, 2000 An Act to amend the Telecommunications (Consumer Protection and Service Standards) Act 1999, and for related purposes [Assented to 29 November 2000] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000. 2 Commencement (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent. (2) Schedules 1 to 3 (other than items 10, 11 and 13 of Schedule 3) commence, or are taken to have commenced, on 1 July 2000. (3) Items 10, 11 and 13 of Schedule 3 commence on the first 1 January, 1 April, 1 July or 1 October following the day on which this Act receives the Royal Assent. 3 Schedule(s) Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—New Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 1 Part 2 Repeal the Part, substitute: Part 2—Universal Service Regime Division 1—Introduction 8 Simplified outline This is a simplified outline of this Part: This Part establishes a universal service regime. In general terms, the universal service regime involves: (a) the universal service obligation and universal service subsidy; and (b) the digital data service obligation and digital data cost; and (c) arrangements for collecting and distributing universal service levy. The main object of the universal service regime is to ensure that all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to: (a) standard telephone services; and (b) payphones; and (c) prescribed carriage services; and (d) digital data services. The key elements of the universal service regime are as follows: (a) the specification of the universal service obligation and digital data service obligation; (b) the determination of universal service areas and digital data service areas; (c) the specification of arrangements for the fulfilment of the universal service obligation; (d) the determination of primary universal service providers and digital data service providers; (e) the determination of contestable service obligations for particular universal service areas; (f) requirements for the approval of, and compliance with, policy statements and marketing plans of universal service providers; (g) requirements for the approval of, and compliance with, digital data service plans of digital data service providers; (h) the determination of the universal service subsidy payable for supplying services in fulfilment of the universal service obligation; (i) the determination of the digital data cost for supplying services in fulfilment of the digital data service obligation; (j) the regulation of universal service charges and digital data service charges; (k) the assessment, collection, recovery and distribution of the levy imposed by the Telecommunications (Universal Service Levy) Act 1997; (l) the disclosure of information on which certain decisions under this Part are based; (m) the maintenance by the ACA of Registers, and the delegation of the Minister's powers under this Part to the ACA. 8A Objects The objects of this Part are to give effect to the following policy principles: (a) all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to: (i) standard telephone services; and (ii) payphones; and (iii) prescribed carriage services; and (iv) digital data services; (b) the universal service obligation described in section 9 and the digital data service obligation described in section 10 should be fulfilled: (i) effectively, efficiently and economically; and (ii) in ways that are consistent with Australia's open and competitive telecommunications regime; and (iii) in ways that are, as far as practicable, responsive to the needs of consumers; (c) the fulfilment of the universal service obligation described in section 9, and the digital data service obligation described in section 10, should generally be open to competition among carriers and carriage service providers; (d) specific and predictable funding arrangements to advance the fulfilment of the universal service obligation, particularly in high cost areas, should be available; (e) providers of telecommunications services should contribute, in a way that is equitable and reasonable, to the funding of the universal service obligation and digital data service obligation; (f) information on the basis on which decisions are made for the purposes of the universal service regime should generally be open to public scrutiny; (g) the universal service regime should be flexible and able to deal with rapid changes in both the telecommunications industry and the needs of consumers. 8B Special meaning of Australia (1) A reference in this Part to Australia includes a reference to: (a) the Territory of Christmas Island; and (b) the Territory of Cocos (Keeling) Islands; and (c) an external Territory specified in the regulations. (2) The definition of Australia in section 7 of the Telecommunications Act 1997 does not apply to this Part. 8C Meaning of service area For the purposes of this Part, a service area is: (a) a geographical area within Australia; or (b) any area of land; or (c) any premises or part of premises; regardless of size. 8D Meaning of claim period (1) For the purposes of this Part, a claim period is: (a) the 2000‑2001 financial year and each later financial year; or (b) if the Minister determines in writing another period—the other period. (2) The Minister may determine different periods under paragraph (1)(b) in respect of: (a) one or more universal service subsidies; or (b) the digital data cost of one or more digital data service providers. (3) A period determined by the Minister under paragraph (1)(b) must not be a part of more than one financial year. (4) If the Minister determines a period under paragraph (1)(b), the determination may modify the way this Part applies to carriers and carriage service providers. The modifications may include additions, omissions and substitutions. (5) A determination under paragraph (1)(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. 8E Meaning of alternative telecommunications services, or ATS For the purposes of this Part, alternative telecommunications services, or ATS, are services the supply of which by a particular universal service provider the ACA authorises for the purposes of this section. 8F Meaning of approved auditor (1) A reference in this Part to an approved auditor is a reference to a person included in a class of persons specified in a written determination made by the ACA for the purposes of this section. (2) A copy of the determination must be published in the Gazette. 8G Meaning of disability In this Part: disability has the same meaning as in the Disability Discrimination Act 1992. Division 2—Universal service obligation Subdivision A—What is the universal service obligation? 9 Universal service obligation (1) For the purposes of this Act, the universal service obligation is the obligation: (a) to ensure that standard telephone services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and (b) to ensure that payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and (c) to ensure that prescribed carriage services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business. (2) To the extent necessary to achieve the obligation mentioned in subsection (1), the universal service obligation includes: (a) the supply of standard telephone services to people in Australia on request; and (b) the supply, installation and maintenance of payphones in Australia; and (c) the supply of prescribed carriage services to people in Australia on request. (3) The Minister may make a written determination that the universal service obligation includes the supply, installation and maintenance of payphones at specified locations in Australia. The determination has effect accordingly and a copy of the determination must be published in the Gazette. (4) An obligation does not arise under paragraph (2)(a) in relation to particular equipment, goods or services the supply of which is treated under section 9E as the supply of a standard telephone service if the customer concerned requests not to be supplied with the equipment, goods or services. (5) An obligation does not arise under paragraph (2)(c) in relation to particular equipment, goods or services the supply of which is treated under section 9F as the supply of a prescribed carriage service if the customer concerned requests not to be supplied with the equipment, goods or services. (6) To avoid doubt, an obligation arising under paragraph (2)(a) in relation to customer equipment requires the customer concerned to be given the option of hiring the equipment. 9A Determinations of what is necessary to ensure reasonable accessibility (1) The Minister may determine in writing for the purpose of paragraph 9(1)(a) what is, or is not, necessary to ensure that standard telephone services are reasonably accessible as mentioned in that paragraph. (2) The Minister may determine in writing, for the purpose of paragraph 9(1)(b), what is, or is not, necessary to ensure that payphones are reasonably accessible as mentioned in that paragraph, including: (a) criteria for determining the locations of payphones; and (b) the process for public consultation on the location of payphones; and (c) the process for resolution of any complaints about the location of payphones. (3) The Minister may determine in writing, for the purpose of paragraph 9(1)(c), what is, or is not, necessary to ensure that prescribed carriage services are reasonably accessible as mentioned in that paragraph. (4) Subsection 9(3) and subsection (2) of this section do not limit the generality of one another. (5) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. 9B What is a service obligation? (1) Unless the Minister makes a determination under subsection (2), each of the following is a service obligation: (a) the obligation referred to in paragraph 9(1)(a) (dealing with the standard telephone services); (b) the obligation referred to in paragraph 9(1)(b) (dealing with payphones); (c) the obligation referred to in paragraph 9(1)(c) (dealing with prescribed carriage services). (2) The Minister may determine in writing the service obligations by dividing the universal service obligation in another way. (3) The determination must also specify, in respect of each service obligation, what must be supplied or done in order to fulfil the service obligation. (4) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. 9C Payphones For the purposes of this Part, a payphone is a fixed telephone that: (a) is a means by which a standard telephone service is supplied; and (b) when in normal working order, cannot be used to make a telephone call (other than a free call or a call made with operator assistance) unless, as payment for the call, or to enable payment for the call to be collected: (i) money, or a token, card or other object, has been put into a device that forms part of, is attached to, or is located near, the telephone; or (ii) an identification number, or a code or other information (in numerical or any other form) has been input into a device that forms part of, is attached to, or is located near, the telephone; or (iii) a prescribed act has been done. 9D Prescribed carriage services For the purposes of this Part, a prescribed carriage service is a carriage service specified in the regulations. 9E Supply of standard telephone services (1) A reference in this Part to the supply of a standard telephone service includes a reference to the supply of: (a) if the regulations prescribe customer equipment for the purposes of this paragraph—whichever of the following is applicable: (i) that customer equipment; (ii) if other customer equipment is supplied, instead of the first‑mentioned customer equipment, in order to comply with the Disability Discrimination Act 1992—that other customer equipment; and (b) if paragraph (a) does not apply—whichever of the following is applicable: (i) a telephone handset that does not have switching functions; (ii) if other customer equipment is supplied, instead of such a handset, in order to comply with the Disability Discrimination Act 1992—that other customer equipment; and (c) other goods of a kind specified in the regulations; and (d) services of a kind specified in the regulations; where the equipment, goods or services, as the case may be, are for use in connection with the standard telephone service. (2) A reference in this Part to the supply of a standard telephone service includes a reference to the supply, to a person with a disability, of: (a) customer equipment of a kind specified in the regulations; and (b) other goods of a kind specified in the regulations; and (c) services of a kind specified in the regulations; where the equipment, goods or services, as the case may be, are for use in connection with the standard telephone service. 9F Supply of prescribed carriage services A reference in this Part to the supply of a prescribed carriage service includes a reference to the supply of: (a) customer equipment of a kind specified in the regulations; and (b) other goods of a kind specified in the regulations; and (c) services of a kind specified in the regulations; where the equipment, goods or services, as the case may be, are for use in connection with the prescribed carriage service. Subdivision B—Universal service areas 9G Universal service areas (1) The Minister may make a written determination that a service area, determined in any way the Minister considers appropriate, is a universal service area in respect of one or more specified service obligations. Note: In some circumstances, the Minister will be taken to have made a determination under this section: see subsections (3) and (4), and section 12E. (2) In determining universal service areas, the Minister must ensure that no universal service area in respect of a service obligation overlaps to any extent with any other universal service area in respect of that service obligation. (3) If, at a particular time, any areas of Australia are not within a universal service area, covered by a determination under subsection (1), in respect of a service obligation: (a) those areas together constitute at that time a single universal service area in respect of that service obligation; and (b) the Minister is taken to have made a determination under subsection (1) to that effect. (4) If, at a particular time, one or more of the universal service areas, in respect of which the Minister is taken to have made a determination because of subsection (3), cover the same areas of Australia, then despite that subsection: (a) those areas together constitute at that time a single universal service area in respect of all of the service obligations referred to in that subsection; and (b) the Minister is taken to have made a determination under subsection (1) to that effect. (5) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Note: A determination that the Minister is taken to have made under this section because of section 12E is not a disallowable instrument (see subsection 12E(6)). 9H Effect of determination (1) A determination under section 9G takes effect on the day specified in the determination. That day must not be before the day on which notice of the determination is published in the Gazette. (2) If the determination is expressed to cease to have effect at a specified time, the determination ceases to have effect at that time. (3) A variation or revocation of a determination under section 9G takes effect on the day specified for the purpose in the instrument of variation or revocation. That day must not be before notice of the instrument is published in the Gazette. 9J Transitional arrangements may be determined (1) If the Minister revokes a determination under section 9G, the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation. (2) A copy of a determination under subsection (1) must be published in the Gazette. Division 3—Digital data service obligation Subdivision A—What is the digital data service obligation? 10 Digital data service obligation For the purposes of this Act, the digital data service obligation is the obligation: (a) to ensure that one or other of the following: (i) general digital data services; (ii) special digital data services; are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and (b) to ensure that general digital data services are reasonably accessible to at least 96% of the Australian population on an equitable basis; and (c) to ensure that special digital data services are reasonably accessible to the remainder of the Australian population on an equitable basis. 10A General digital data service obligation (1) For the purposes of this Act, the general digital data service obligation is the obligation to ensure that general digital data services are reasonably accessible to all people in general digital data service areas on an equitable basis. (2) To the extent necessary to achieve the general digital data service obligation, it is part of that obligation to supply general digital data services to people in general digital data service areas on request. 10B Special digital data service obligation (1) For the purposes of this Act, the special digital data service obligation is the obligation to ensure that special digital data services are reasonably accessible to all people in special digital data service areas on an equitable basis. (2) To the extent necessary to achieve the special digital data service obligation, it is part of that obligation to supply special digital data services to people in special digital data service areas on request. 10C Supply of customer equipment or other goods or services (1) An obligation does not arise under subsection 10A(2) in relation to particular equipment, goods or services the supply of which is treated under subsection 10F(1) as the supply of a general digital data service if the customer concerned requests not to be supplied with the equipment, goods or services. (2) An obligation does not arise under subsection 10B(2) in relation to particular equipment, goods or services the supply of which is treated under subsection 10G(1) as the supply of a special digital data service if the customer concerned requests not to be supplied with the equipment, goods or services. 10D Rebate system (1) The regulations may provide that: (a) an obligation that arises under subsection 10A(2) in relation to particular customer equipment the supply of which is treated under subsection 10F(1) as the supply of a general digital data service; or (b) an obligation that arises under subsection 10B(2) in relation to particular customer equipment the supply of which is treated under subsection 10G(1) as the supply of a special digital data service; is taken to have been fulfilled by a person (so far as the obligation relates to a particular customer) if: (c) the customer acquires or hires the equipment from a third person; and (d) the customer is entitled to a rebate from the first‑mentioned person in respect of that acquisition or hire; and (e) the amount of the rebate is equal to the amount ascertained in accordance with the regulations; and (f) the liability to pay the rebate has been discharged; and (g) the entitlement to the rebate complies with such requirements, restrictions and conditions (if any) as are specified in the regulations. (2) Regulations made for the purposes of paragraph (1)(g) may require that the customer be given the option of assigning the customer's right to the rebate to the third person. (3) Subsection (2) does not, by implication, limit subsection (1). 10E Digital data services (1) For the purposes of this Act, a digital data service is: (a) a general digital data service (see subsection (2)); or (b) a special digital data service (see subsection (3)). General digital data service (2) For the purposes of this Act, a general digital data service is a carriage service that provides a digital data capability broadly comparable to that provided by a data channel with a data transmission speed of 64 kilobits per second supplied to end‑users as part of the designated basic rate ISDN service. Special digital data service (3) For the purposes of this Act, a special digital data service is a carriage service that provides for a capability for the delivery of digital data to an end‑user broadly comparable to the corresponding capability provided by a data channel with a data transmission speed of 64 kilobits per second supplied to end‑users as part of the designated basic rate ISDN service. Designated basic rate ISDN service (4) For the purposes of this section, if: (a) immediately before 1 July 1997, Telstra supplied a basic rate Integrated Services Digital Network (ISDN) service; and (b) the service complied with any of the standards for ISDN services made by the European Telecommunications Standards Institute (ETSI); the service is a designated basic rate ISDN service. Comparability of digital data capability (5) For the purposes of subsection (2), the determination of the comparability of the digital data capability of a carriage service is to be based solely on a comparison of the data transmission speed available to an end‑user of the service. 10F Supply of general digital data services (1) A reference in this Part to the supply of a general digital data service includes a reference to the supply of: (a) customer equipment of a kind specified in the regulations; and (b) other goods of a kind specified in the regulations; and (c) services of a kind specified in the regulations; where: (d) the equipment, goods or services, as the case may be, are for use in connection with the general digital data service; and (e) the supply complies with such requirements, restrictions or conditions (if any) as are specified in the regulations. (2) Regulations made for the purposes of paragraph (1)(e) may require that the supply of a specified kind of customer equipment is to be by way of hire. If those regulations impose such a requirement, this Part has effect, in relation to the customer equipment concerned, as if a reference to supply were a reference to supply by way of hire. (3) Regulations made for the purposes of paragraph (1)(e) may require that specified customer equipment is to be supplied on the basis that the customer concerned enters into a legally enforceable agreement containing such terms and conditions relating to the ownership, possession, location, disposal or use of the equipment, as are specified in, or ascertained in accordance with, the regulations. (4) Subsections (2) and (3) do not, by implication, limit paragraph (1)(e). 10G Supply of special digital data services (1) A reference in this Part to the supply of a special digital data service includes a reference to the supply of: (a) customer equipment of a kind specified in the regulations; and (b) other goods of a kind specified in the regulations; and (c) services of a kind specified in the regulations; where: (d) the equipment, goods or services, as the case may be, are for use in connection with the special digital data service; and (e) the supply complies with such requirements, restrictions or conditions (if any) as are specified in the regulations. (2) Regulations made for the purposes of paragraph (1)(e) may require that the supply of a specified kind of customer equipment is to be by way of hire. If those regulations impose such a requirement, this Part has effect, in relation to the customer equipment concerned, as if a reference to supply were a reference to supply by way of hire. (3) Regulations made for the purposes of paragraph (1)(e) may require that specified customer equipment is to be supplied on the basis that the customer concerned enters into a legally enforceable agreement containing such terms and conditions relating to the ownership, possession, location, disposal or use of the equipment, as are specified in, or ascertained in accordance with, the regulations. (4) Subsections (2) and (3) do not, by implication, limit paragraph (1)(e). Subdivision B—Digital data service areas 10H General digital data service areas (1) The Minister may make a written determination that a service area ascertained in accordance with the determination is a general digital data service area for the purposes of this Act. The determination has effect accordingly. (2) A copy of the determination must be published in the Gazette. (3) The Minister must exercise the powers conferred by this section in a manner that is consistent with the fulfilment of the digital data service obligation. 10J Special digital data service areas (1) The Minister may make a written determination that a service area ascertained in accordance with the determination is a special digital data service area for the purposes of this Act. The determination has effect accordingly. (2) A copy of the determination must be published in the Gazette. (3) The Minister must exercise the powers conferred by this section in a manner that is consistent with the fulfilment of the digital data service obligation. Division 4—The arrangements for fulfilling the universal service obligation 11 The arrangements that apply to universal service areas (1) This section sets out the arrangements for the fulfilment of the universal service obligation by universal service providers. (2) The default arrangements set out in Division 5 apply to each universal service area in respect of a service obligation. (3) If the Minister determines under section 11C, for a universal service area in respect of a service obligation, that the obligation is a contestable service obligation, then: (a) the default arrangements set out in Division 5 apply to the area; and (b) the standard contestability arrangements set out in Division 6 apply to the area in respect of the contestable service obligation. (4) If the Minister determines under Division 7 that alternative arrangements apply to a universal service area in respect of a service obligation (whether or not it is a contestable service obligation), then: (a) those alternative arrangements apply to the area; and (b) the default arrangements set out in Division 5 apply to the area except to the extent that the determination modifies the way those arrangements apply, or excludes them from applying, to the area. 11A Universal service providers (1) For the purposes of this Part, a universal service provider means: (a) a primary universal service provider (see section 12A); or (b) a competing universal service provider (see section 13A) (2) For the purposes of this Part, a person who is a primary universal service provider under a determination that is in force under section 12A, at any time during a claim period, is: (a) a universal service provider for the claim period; and (b) a primary universal service provider for the claim period. (3) For the purposes of this Part, a person who is approved as a competing universal service provider under section 13B, at any time during a claim period, is: (a) a universal service provider for the claim period; and (b) a competing universal service provider for the claim period. 11B Former universal service provider may be required to provide information to current universal service provider (1) This section applies if: (a) either: (i) the Minister determines under section 12A that a carrier or carriage service provider (the current provider) is the primary universal service provider for a universal service area (the relevant area) in respect of a service obligation; or (ii) the ACA approves a carrier or carriage service provider (the current provider) under section 13B as a competing universal service provider for a universal service area (the relevant area) in respect of a contestable service obligation; and (b) another person, who is or was a universal service provider for the area in respect of the obligation, is determined to be a former provider under subsection (2B). Note: The Minister may be taken to have made a determination under section 12A if an agreement is made under section 56 or 57 of the Telstra Corporation Act 1991: see section 12E. (2) This section also applies if: (a) any of the following applies: (i) the Minister revokes or varies a determination under section 12A so that a person (the former provider) ceases to be a universal service provider for a universal service area (the relevant area) in respect of a service obligation; or (ii) the ACA revokes or varies an approval under section 13B so that a person (the former provider) ceases to be a universal service provider for a universal service area (the relevant area) in respect of a service obligation; or (iii) a person (the former provider) otherwise ceases to be a universal service provider for a universal service area (the relevant area) in respect of a service obligation; and (b) another person (the current provider), who was also a universal service provider for the relevant area in respect of the service obligation, continues to be a universal service provider for the area in respect of that obligation: (i) if subparagraph (a)(i) or (ii) applies—after the revocation or variation; or (ii) if subparagraph (a)(iii) applies—after the cessation. (2A) Subsections (1) and (2) can apply before the determination, revocation or variation under section 12A or the approval, revocation or variation under section 13B takes effect. (2B) The Minister may determine in writing that a person is a former provider for the purposes of this section. (3) The current provider may, by written notice given to the former provider, require the former provider to give to the current provider specified information of the kind referred to in subsection (4). A notice of this kind cannot be given more than 6 months after: (a) if subsection (1) applies—the later of the following days: (i) the day on which the current provider became a universal service provider for the relevant area; or (ii) the day on which the determination under section 12A was made, or the approval under section 13B was given, (as the case may be) in respect of the current provider; or (b) if subsection (2) applies—the day on which the former provider ceases to be a universal service provider for the relevant area. (4) The information that may be required to be given must be information that will assist the current provider in doing something that the current provider is or will be required or permitted to do by or under a provision of this Part. The notice must identify the doing of that thing as the purpose for which the information is required. Note 1: If, for example, information about service location and customer contact details will assist the current provider in fulfilling its obligation under subsection 12C(1), the former provider may be required to provide that kind of information. Note 2: See also subsection (6), which allows the Minister to determine that a specified kind of information is information referred to in this subsection. (5) If a requirement made by a notice under subsection (3) is reasonable, the former provider must comply with the requirement as soon as practicable after receiving the notice. However, if the requirement is unreasonable, the former provider does not have to comply with it. (6) The Minister may make a written determination to the effect that, either generally or in a particular case, information of a kind specified in the determination is taken to be information that will assist a person in doing a specified thing that the person is or will be required or permitted to do by or under a provision of this Part. The determination has effect accordingly. (6A) If a former provider has been given notice of a requirement under subsection (3), the ACA may, in writing, direct the former provider to comply with the requirement or with specified aspects of the requirement. The former provider must comply with the direction. (6B) In deciding whether to give a direction under subsection (6A), the ACA must consider whether the requirement under subsection (3) is reasonable. (7) A determination under subsection (6) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. 11C Determination of contestable service obligation (1) The Minister may determine in writing, for a universal service area in respect of a service obligation, that the obligation is a contestable service obligation. Note 1: This means that the standard contestability arrangements apply to the area in respect of the contestable service obligation (see subsection 11(3)). Note 2: The Minister can make determinations under this section initially only in relation to pilot areas (see section 11F). (2) The Minister must give to the ACA a copy of each determination made under this section. (3) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. 11D Effect of determination (1) A determination under section 11C takes effect on the day specified in the determination. That day must not be before the day on which notice of the determination is published in the Gazette. (2) If a determination under section 11C is expressed to cease to have effect at a specified time, the determination ceases to have effect at that time. (3) A variation or revocation of a determination under section 11C takes effect on the day specified for the purpose in the instrument of variation or revocation. That day must not be before the day on which notice of the instrument is published in the Gazette. 11E Transitional arrangements may be determined (1) If the Minister revokes a determination under section 11C, the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation. (2) A copy of a determination under subsection (1) must be published in the Gazette. 11F Section 11C temporarily limited to pilot areas (1) Until the Minister has done both of the following, the Minister can make determinations under section 11C only in relation to pilot areas (as defined in subsection (2)): (a) received a comprehensive report, following a public inquiry by the ACA, on whether a net benefit has accrued from the operation, for a period not less than 12 months, of the standard contestability arrangements in each of the pilot areas; (b) caused the report to be tabled in each House of the Parliament within 10 sitting days of that House after the Minister receives the report. (2) A pilot area is an area determined in writing by the Minister for the purposes of this section. The Minister may determine a maximum of 2 pilot areas and cannot later change the boundaries of a pilot area. (3) Before the Minister can make any determination under section 11C in relation to a pilot area, the Minister must have determined under section 9G one or more universal service areas that cover the whole of the pilot area. (4) A copy of a determination under subsection (2) must be published in the Gazette. Division 5—The default arrangements: primary universal service providers Subdivision A—What are the default arrangements? 12 The default arrangements The default arrangements consist of the arrangements set out in this Division. Note: These apply to each universal service area except to the extent that a determination of alternative arrangements modifies the way they apply, or excludes them from applying, to the area (see subsection 11(4)). Subdivision B—Primary universal service providers 12A Determination of primary universal service providers (1) The Minister may determine in writing that a specified carrier or carriage service provider is the primary universal service provider for a universal service area in respect of a service obligation. (2) The Minister may determine: (a) different primary universal service providers in respect of different service obligations for the same universal service area; and (b) the same person as the primary universal service provider for one or more universal service areas in respect of one or more service obligations. (3) In exercising his or her powers under this section, the Minister must ensure that at all times there is one primary universal service provider, in respect of each service obligation, for each universal service area. (4) In deciding whether to make a determination that a person is a primary universal service provider, the Minister is limited to considering factors that are relevant to achieving the objects of this Act. (5) The Minister must give to the person and to the ACA a copy of the determination. (6) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Note: A determination that the Minister is taken to have made under this section because of section 12D or 12E is not a disallowable instrument (see subsections 12D(2) and 12E(6)). 12B Effect of determination (1) A determination under section 12A takes effect on the day specified in the determination. That day must not be before the day on which notice of the determination is published in the Gazette. (2) If such a determination is expressed to cease to have effect at a specified time, the determination ceases to have effect at that time. (3) A variation or revocation of a determination under section 12A takes effect on the day specified for the purpose in the instrument of variation or revocation. That day must not be before notice of the instrument is published in the Gazette. (4) If the Minister revokes a determination under section 12A, the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation. (5) A copy of a determination under subsection (4) must be published in the Gazette. 12C Obligations of primary universal service providers (1) A primary universal service provider for a universal service area in respect of a service obligation must take all reasonable steps to: (a) fulfil that service obligation, so far as it relates to that area; and (b) comply with: (i) the provider's approved policy statement; and (ii) the approved standard marketing plan of the provider that covers that area in respect of that service obligation; and (iii) the approved ATS marketing plan (if any) of the provider that covers that area in respect of that service obligation. Note 1: For the meaning of approved policy statement and approved standard marketing plan, see section 12F. Note 2: For the meaning of approved ATS marketing plan, see section 12P. (1A) A primary universal service provider for a universal service area in respect of a service obligation, who fulfils that service obligation by supplying alternative telecommunications services in accordance with an approved ATS marketing plan, is taken to have fulfilled any other obligation that arises under this Act because of that service obligation to the extent that the other obligation applies to the supply of alternative telecommunications services. (2) The ACA may determine in writing requirements that a primary universal service provider must comply with if the provider intends to cease supplying alternative telecommunications services in accordance with an approved ATS marketing plan. A copy of the determination must be given to the provider. (3) The provider must comply with those requirements (as well as any requirements in the plan). 12D Transitional: when Telstra is taken to be a primary universal service provider (1) Until: (a) a determination of a primary universal service provider under section 12A; or (b) a deemed determination of a primary universal service provider under section 12E; takes effect for the first time for a universal service area in respect of a service obligation, the Minister is taken to have made a determination under section 12A that Telstra is the primary universal service provider for that area in respect of that service obligation. (2) Despite subsection 12A(6), the determination that the Minister is taken to have made is not a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Instead, a notice must be published in the Gazette to the effect that Telstra is the primary universal service provider for the area in respect of that service obligation. 12E Effect of certain agreements under the Telstra Corporation Act 1991 (1) This section applies to agreements under section 56 or 57 of the Telstra Corporation Act 1991 made between the Commonwealth and a person (including a State or Territory) that are expressed to also have effect for the purposes of: (a) this subsection; or (b) subsection 20(2B) of this Act as in force immediately before the commencement of Schedule 1 to the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000. (2) The Minister is taken to have properly made: (a) a determination under section 9G that each of the areas, specified in the agreement as a universal service area in respect of a service obligation, is a universal service area in respect of that service obligation for the purposes of this Act; and (b) a determination under section 12A that the person is a primary universal service provider for each of the areas, in respect of the service obligation or obligations, specified in the agreement. Those determinations are referred to in this section as deemed determinations. (3) The deemed determinations take effect as follows: (a) if the commencement date (see subsection (4)) is the same for each of the areas—they take effect on that commencement date; or (b) if there are different commencement dates for different areas—they take effect for those different areas on those different dates. (4) The commencement date or dates for an area is or are as follows: (a) if the agreement specifies a single date as the commencement date for the area—subject to paragraph (c), the commencement date for the area is the specified date; (b) if the agreement specifies different dates as the commencement dates for different areas—subject to paragraph (c), the commencement dates for those areas are the specified dates; (c) if a determination under subsection (5) specifies a date as the commencement date for the area or areas—the commencement date for the area or areas is the specified date (regardless of any dates specified in the agreement). A commencement date cannot be a date before the agreement is made, or before the commencement of this subsection or the subsection referred to in paragraph (1)(a). (5) The Minister may make a written determination specifying a date as the commencement date for the area or areas specified in the agreement as universal service areas. A copy of the determination must be published in the Gazette. (6) Despite subsections 9G(5) and 12A(6), the deemed determinations are not disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901. Instead, a notice must be published in the Gazette that: (a) states that the person is a primary universal service provider for the area or areas concerned, in respect of the service obligation or obligations concerned; and (b) includes the relevant commencement date or dates. (7) However, a variation or revocation of a deemed determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. (8) This section applies to an agreement whether made before, on or after the commencement of Schedule 1 to the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000. 12EA Exclusive access to universal service subsidy (1) If a person is a primary universal service provider for a universal service area in respect of a service obligation because of subsection 12E(2): (a) the Minister must not determine any other person to be a primary universal service provider; and (b) the ACA must not approve any other person as a competing universal service provider; for that area in respect of that service obligation. (2) Subsection (1) applies while the agreement referred to in subsection 12E(2) remains in force in relation to that area but no longer than 3 years after the commencement date for the area. (3) This section applies despite anything else in this Part. Subdivision C—Policy statements and standard marketing plans of primary universal service providers 12F Meaning of expressions (1) A draft policy statement for a primary universal service provider is a general statement of the policy the provider will apply in supplying equipment, goods or services as a primary universal service provider. (2) A draft policy statement that has been approved by the ACA under section 12K, and that is in force, is an approved policy statement for the primary universal service provider concerned. (3) A draft standard marketing plan for a primary universal service provider for a universal service area in respect of a service obligation is a plan that sets out: (a) the equipment, goods or services that the provider will supply in fulfilment of that service obligation, so far as it relates to that area; and (b) the arrangements for supplying and marketing the equipment, goods or services; but does not deal with alternative telecommunications services. (4) A draft standard marketing plan that has been approved by the ACA under section 12K, and that is in force, is an approved standard marketing plan for the primary universal service provider concerned. (5) A draft or approved standard marketing plan may cover one or more universal service areas in respect of one or more service obligations. 12G Minister may determine requirements for drafts (1) The Minister may determine in writing requirements for draft policy statements and draft standard marketing plans of primary universal service providers. (2) These are some examples of requirements in relation to draft standard marketing plans: (a) timeframes for the supply of specified equipment, goods or services; (b) performance standards relating to the fulfilment of the universal service obligation; (c) processes for advising persons about the availability, offer and supply of equipment, goods or services in the fulfilment of the universal service obligation, and the terms and conditions on which the equipment, goods or services are offered or supplied; (d) the form of a draft standard marketing plan. (3) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. 12H Obligation to submit a draft policy statement and draft standard marketing plan Within 90 days after a person becomes a primary universal service provider for a universal service area in respect of a service obligation, the provider must give the ACA: (a) a draft policy statement, or draft variation of an approved policy statement; and (b) a draft standard marketing plan, or draft variation of an approved standard marketing plan; covering that area in respect of that service obligation. 12J Public consultation required on draft policy statement and draft standard marketing plan (1) Before giving the ACA a draft policy statement or draft standard marketing plan, a primary universal service provider must: (a) publish a preliminary version of the draft and invite members of the public to make submissions to the provider about the preliminary version within a specified period (which must be at least 30 days); and (b) give consideration to any submissions received from members of the public within that period. (2) When giving the draft to the ACA, the provider must include advice on the submissions considered and any changes made to the draft as a result. (3) However, this section does not apply to a fresh draft policy statement, or fresh draft standard marketing plan, given to the ACA by a primary universal service provider in accordance with a direction under paragraph 12M(2)(b) unless the ACA notifies the provider in writing that it does apply to the document. 12K Approval of draft policy statement (1) The ACA must approve, or refuse to approve, a draft policy statement that a primary universal service provider gives to the ACA. (2) The ACA must not approve the draft unless it is satisfied that the draft adequately deals with the supply of appropriate equipment, goods or services to: (a) people with a disability; and (b) people with special needs. (3) If the service obligation concerned is a contestable service obligation, the ACA must also be satisfied that the draft sets out appropriate arrangements that the provider will put in place if a competing universal service provider for the universal service area concerned in respect of that obligation ceases to supply equipment, goods or services in that area in respect of that obligation. Note: The arrangements may, for example, deal with the transfer of customers from a competing universal service provider to the primary universal service provider. (4) In deciding whether to approve the draft, the ACA must also have regard to: (a) whether the draft complies with the requirements (if any) under section 12G; and (b) any other matters determined in writing by the Minister for the purposes of this paragraph; and (c) such other matters as the ACA considers relevant. (5) A copy of a determination made for the purposes of paragraph (4)(b) must be published in the Gazette. 12L Approval of draft standard marketing plan (1) The ACA must approve, or refuse to approve, a draft standard marketing plan that a primary universal service provider gives to the ACA. (2) The ACA must not approve the draft unless it is satisfied that: (a) the draft specifies appropriate equipment, goods or services that the provider will supply in fulfilment of the service obligation concerned, so far as it relates to the universal service area concerned; and (b) the draft adequately deals with how the provider will fulfil that service obligation, so far as it relates to that area; and (c) the draft sets out appropriate terms and conditions on which the equipment, goods or services are to be supplied; and (d) the draft sets out appropriate arrangements for the marketing of the supply of the equipment, goods or services to persons in the universal service area concerned. (3) In deciding whether to approve the draft, the ACA must also have regard to: (a) whether the draft complies with the requirements (if any) under section 12G; and (b) any other matters determined in writing by the Minister for the purposes of this paragraph; and (c) any other matters the ACA considers relevant. (4) A copy of a determination made for the purposes of paragraph (3)(b) must be published in the Gazette. 12M Notice of decision (1) The ACA must give written notice of the ACA's decision whether to approve a draft policy statement, or draft standard marketing plan, to the primary universal service provider concerned. (2) If the ACA refuses to approve the draft, the ACA: (a) must give the provider written notice of the reasons for that refusal; and (b) may, by giving written notice to the provider, direct the provider to give the ACA, within a specified period and in specified terms, a fresh draft policy statement or fresh draft standard marketing plan as the case may be. (3) The provider must comply with a direction under paragraph (2)(b). (4) A copy of the notice under subsection (1) must be published in the Gazette if the decision is to approve the draft. Subdivision D—ATS marketing plans of primary universal service providers 12P Meaning of expressions (1) A draft ATS marketing plan for a primary universal service provider for a universal service area in respect of a service obligation is a plan that sets out: (a) the alternative telecommunications services that the provider will supply in fulfilment of that service obligation so far as it relates to that area; and (b) the arrangements for supplying and marketing those services. (2) A draft ATS marketing plan that has been approved by the ACA under section 12T, and that is in force, is an approved ATS marketing plan for the primary universal service provider concerned. (3) Each draft or approved ATS marketing plan must cover only one universal service area and only one service obligation. However, the ACA may determine in writing that this subsection does not apply to: (a) draft or approved ATS marketing plans generally; or (b) a draft or approved ATS marketing plan of a particular primary universal service provider. (4) A copy of a determination made under subsection (3) must be published in the Gazette. 12Q Minister may determine requirements for drafts (1) The Minister may determine in writing requirements for draft ATS marketing plans of primary universal service providers. (2) These are some examples of requirements: (a) timeframes for the supply of specified equipment, goods or services; (b) performance standards relating to the fulfilment of the universal service obligation; (c) processes for advising persons about the availability, offer and supply of equipment, goods or services in the fulfilment of the universal service obligation, and the terms and conditions on which the equipment, goods or services are offered or supplied; (d) the form of a draft ATS marketing plan. (3) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. 12R Primary universal service provider may submit a draft ATS marketing plan (1) A primary universal service provider for a universal service obligation in respect of a service obligation, who wishes to supply alternative telecommunications services in fulfilment of that service obligation so far as it relates to that area, may give to the ACA a draft ATS marketing plan covering the supply of those services. (2) To avoid doubt, the primary universal service provider is still required to fulfil that service obligation so far as it relates to that area in accordance with section 9. 12S Public consultation required on draft ATS marketing plan (1) Before deciding whether to approve a draft ATS marketing plan, the ACA must require the provider concerned: (a) to publish a preliminary version of the draft and invite members of the public to make submissions to the applicant about the preliminary version within a specified period (which must be at least 30 days); and (b) to give consideration to any submissions received from members of the public within that period; and (c) to advise the ACA on those submissions and any changes made to the draft as a result. (2) Subsection (1) applies only if a draft ATS marketing plan is materially different from an ATS marketing plan previously approved by the ACA. 12T Approval of draft ATS marketing plan (1) The ACA must approve, or refuse to approve, a draft ATS marketing plan that a primary universal service provider gives to the ACA. (2) The ACA must not approve the draft unless it is satisfied that: (a) the draft specifies appropriate equipment, goods or services that the provider will supply in supplying the alternative telecommunications services; and (b) the draft adequately deals with how the provider will supply alternative telecommunications services in fulfilment of the service obligation concerned, so far as it relates to the area concerned; and (c) the alternative telecommunications services are of general appeal and are appropriate for fulfilling that service obligation, so far as it relates to that area; and (d) the draft sets out appropriate terms and conditions on which the equipment, goods or services are to be supplied; and (e) the draft sets out appropriate arrangements for the marketing of the supply of the equipment, goods or services to persons in that area; and (ea) the draft includes a requirement that, before entering into an agreement to supply a person with alternative telecommunications services, the provider must give to the person information about the substantive differences between: (i) what is to be supplied under the draft in fulfilment of the service obligation concerned, so far as it relates to the area concerned; and (ii) what would be supplied under the provider's draft standard marketing plan or approved standard marketing plan in fulfilment of the same service obligation, so far as it relates to the same area; and (f) the draft sets out appropriate procedures that the provider will comply with if the provider ceases to supply alternative telecommunications services in fulfilment of that service obligation, so far as it relates to that area; and (g) the requirements of section 12S have been met. (3) The procedures referred to in paragraph (2)(f) must include the giving of at least 45 days' notice to the ACA, or such other notice as the ACA determines in writing is adequate for the purposes of that paragraph. (4) In deciding whether to approve the draft, the ACA must also have regard to: (a) whether the draft complies with the requirements (if any) under section 12Q; and (b) any other matters determined in writing by the Minister for the purposes of this paragraph; and (c) any other matters the ACA considers relevant. (5) A copy of a determination made for the purposes of paragraph (2)(f) or (4)(b) must be published in the Gazette. 12U Notice of decision (1) The ACA must give the provider written notice of the ACA's decision on whether to approve the draft ATS marketing plan. (2) If the ACA refuses to approve the draft, the ACA must give the provider written notice of the reasons for that refusal. (3) A copy of a notice under subsection (1) must be published in the Gazette, if the decision is to approve the draft. Subdivision E—Replacement, variation and revocation of policy statements, standard marketing plans and ATS marketing plans 12V Replacement of approved policy statement, approved standard marketing plan or approved ATS marketing plan (1) An approved policy statement for a primary universal service provider ceases to be in force if a later draft policy statement, that is expressed to replace it, becomes an approved policy statement. (2) An approved standard marketing plan for a primary universal service provider ceases to be in force if a later draft standard marketing plan, that is expressed to replace it, becomes an approved standard marketing plan. (3) An approved ATS marketing plan for a primary universal service provider ceases to be in force if a later draft ATS marketing plan, that is expressed to replace it, becomes an approved ATS marketing plan. 12W Variation of approved policy statement, approved standard marketing plan or approved ATS marketing plan (1) This section applies if: (a) an approved policy statement for a primary universal service provider (the current statement) is in force; or (b) an approved standard marketing plan for a primary universal service provider (the current plan) is in force; or (c) an approved ATS marketing plan for a primary universal service provider (the current plan) is in force; and the provider gives the ACA a draft variation of the current statement or current plan. (2) The ACA must: (a) approve the variation; or (b) refuse to approve the variation. (3) Before deciding whether to approve the variation, the ACA may, if the ACA considers it appropriate, require the provider: (a) to publish a preliminary version of the draft variation and invite members of the public to make submissions to the provider about the preliminary version within a specified period; and (b) to give consideration to any submissions from members of the public received within that period; and (c) to advise the ACA on those submissions and any changes made to the draft variation as a result. (4) The ACA must not approve the variation unless it is satisfied that: (a) in the case of a draft variation of an approved policy statement—if the provider were to give the ACA a draft policy statement in the same terms as the current statement as varied, the ACA would approve that draft; or (b) in the case of a draft variation of an approved standard marketing plan—if the provider were to give the ACA a draft standard marketing plan in the same terms as the current plan as varied, the ACA would approve that draft; or (c) in the case of a draft variation of an approved ATS marketing plan—if the provider were to give the ACA a draft ATS marketing plan in the same terms as the current plan as varied, the ACA would approve that draft. 12X Notice of decision (1) After deciding whether to approve a variation under section 12W, the ACA must give a written notice setting out the decision to the provider concerned. (2) If the ACA refuses to approve the variation, the ACA must give a written notice setting out the reasons for the refusal to the provider. (3) If the ACA approves the variation: (a) the current statement or plan is varied accordingly; and (b) a copy of the notice given to the provider must be published in the Gazette, unless the variation is only of a minor technical nature. 12Y Minister may direct variation or replacement of policy statement or standard marketing plan (1) If an approved policy statement for a primary universal service provider is in force, the Minister may give the provider a written notice requiring the provider: (a) within a specified period and in specified terms, to give the ACA a draft variation of the statement; or (b) within a specified period and in specified terms, to give the ACA a fresh draft policy statement that is expressed to replace the statement. (2) If an approved standard marketing plan for a primary universal service provider is in forc