Commonwealth: Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 (Cth)

Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 No. 47, 2020 An Act to amend legislation relating to telecommunications, and for other purposes Contents 1 Short title 2 Commencement 3 Schedules 4 Transitional—election to be bound by deemed standard functional separation undertaking 5 Modelling of Regional Broadband Scheme Schedule 1—Layer 2 bitstream services Part 1—Amendments Competition and Consumer Act 2010 Telecommunications Act 1997 Part 2—Transitional provisions Schedule 2—Local access lines Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 Competition and Consumer Act 2010 Legislation (Exemptions and Other Matters) Regulation 2015 Telecommunications Act 1997 Schedule 3—Statutory infrastructure providers etc. Part 1—Amendments Division 1—Service provider determinations Telecommunications Act 1997 Division 2—Other amendments Competition and Consumer Act 2010 Telecommunications Act 1997 Part 2—Repeals Carrier Licence Conditions (NT Technology Services Pty Ltd) Declaration 2014 Carrier Licence Conditions (OptiComm Co Pty Ltd) Declaration 2013 Carrier Licence Conditions (Pivit Pty Ltd) Declaration 2013 Carrier Licence Conditions (Urban Renewal Authority Victoria t/a Places Victoria Pty Ltd) Declaration 2014 Schedule 4—Funding of fixed wireless broadband and satellite broadband Competition and Consumer Act 2010 Telecommunications Act 1997 Telecommunications (Consumer Protection and Service Standards) Act 1999 Schedule 5—NBN Co transparency National Broadband Network Companies Act 2011 Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 No. 47, 2020 An Act to amend legislation relating to telecommunications, and for other purposes [Assented to 25 May 2020] The Parliament of Australia enacts: 1 Short title This Act is the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020. 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 Provisions Commencement Date/Details 1. Sections 1 to 5 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 25 May 2020 2. Schedule 1 The day after this Act receives the Royal Assent. 26 May 2020 3. Schedule 2 The day after the end of the period of 3 months beginning on the day this Act receives the Royal Assent. 25 August 2020 4. Schedule 3, Part 1, Division 1 The day after this Act receives the Royal Assent. 26 May 2020 5. Schedule 3, Part 1, Division 2 The earlier of: 1 July 2020 (a) a single day to be fixed by Proclamation; and (paragraph (b) applies) (b) 1 July 2020. 6. Schedule 3, Part 2 Immediately after the commencement of the provisions covered by table item 5. 1 July 2020 7. Schedules 4 and 5 The day after this Act receives the Royal Assent. 26 May 2020 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 Schedules (1) Legislation 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. (2) The provisions of the Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 amended or inserted by this Act, and any other provisions of that instrument, may be varied by an instrument made under subsection 63(5) of the Telecommunications Act 1997, or revoked by an instrument made under subsection 63(6) of that Act (see subsection 13(5) of the Legislation Act 2003). (3) The provisions of the Legislation (Exemptions and Other Matters) Regulation 2015 amended or inserted by this Act, and any other provisions of that instrument, may be amended or repealed by regulations made under section 62 of the Legislation Act 2003 (see subsection 13(5) of the Legislation Act 2003). 4 Transitional—election to be bound by deemed standard functional separation undertaking If: (a) in accordance with section 4 of the Acts Interpretation Act 1901, a determination is made under subsection 151B(1) of the Telecommunications Act 1997 before the commencement of Schedule 2 to this Act; and (b) a corporation is included in a class of corporations specified in the determination; the corporation may, before the commencement of that Schedule, give an election to be bound by the determination. 5 Modelling of Regional Broadband Scheme Report (1) The Australian Competition and Consumer Commission (ACCC) must prepare a report in relation to the Regional Broadband Scheme that includes: (a) the estimates referred to in subsection (3); and (b) such other matters (if any) as the ACCC considers relevant. (2) The purpose of the report is to provide updated costings in relation to the amount of the base component specified in paragraph 12(1)(a) of the Regional Broadband Scheme Charge Act, using the same model and methodology that was previously used to determine that amount but taking into account changes to inputs and assumptions that have occurred since that amount was first determined. (3) The report must include an estimate of each of the following: (a) the total losses that have been incurred by NBN Co in relation to fixed wireless broadband and satellite broadband matters during the period beginning on 1 July 2009 and ending on 30 June 2020; (b) the total of the reasonable losses likely to be incurred by NBN Co in relation to fixed wireless broadband and satellite broadband matters during the period beginning on 1 July 2009 and ending on 30 June 2040 (the total expected net losses); (c) the amount that the base component for a month (within the meaning of the Regional Broadband Scheme Charge Act) would be required to be in order for the Commonwealth to receive a total amount by way of charge imposed by that Act that would offset the total expected net losses, if it were assumed that paragraph 9(1)(b) of that Act had not been enacted; (d) the total of the reasonable losses likely to be incurred by NBN Co in relation to fixed wireless broadband and satellite broadband matters during the period beginning on 1 July 2020 and ending on 30 June 2040 (the total expected net forward facing losses); (e) the amount that the base component for a month (within the meaning of the Regional Broadband Scheme Charge Act) would be required to be in order for the Commonwealth to receive a total amount by way of charge imposed by that Act that would offset the total expected net forward facing losses, if it were assumed that paragraph 9(1)(b) of that Act had not been enacted; (f) the total expected number of chargeable premises by reference to which charge is to be calculated under the Regional Broadband Scheme Charge Act during the financial year beginning on 1 July 2025; (g) such other matters (if any) as the ACCC considers relevant. Note: For paragraph (f), see section 11 of the Regional Broadband Scheme Charge Act in relation to how numbers of chargeable premises are used in calculating charge under that Act. (4) The report must specify the aggregated data inputs and the modelling assumptions upon which the estimates referred to in subsection (3) were determined. (5) In preparing the report, the ACCC: (a) must use the methodology and model that was used by the Department of Communications and the Arts' Bureau of Communications Research for the report entitled NBN non‑commercial services funding options—Final report March 2016; but (b) must, in doing so, update the inputs and assumptions of the methodology and model to reflect changes that have occurred since the publication of that report. (6) Without limiting paragraph (5)(b), the following are changes that must be taken into account in updating the inputs and assumptions: (a) changes in the inputs for estimating the total number of chargeable premises by reference to which charge is imposed by the Regional Broadband Scheme Charge Act; (b) changes in the inputs for build costs in relation to fixed wireless broadband and satellite broadband matters; (c) changes in the inputs for estimating future capital expenditure requirements in relation to fixed wireless broadband and satellite broadband matters. (7) In preparing the report, the ACCC must assume that Division 6 of Part 3 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 had not been enacted. Note: That Division deals with charge offset certificates. (8) Before the end of the 150‑day period beginning when this section commences, the ACCC must: (a) give the Minister the report; and (b) make the report available on the ACCC's website. (9) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 5 sitting days of receiving it. Use of the word "Regional" (10) To avoid doubt, the use of the word "Regional" in this section does not limit: (a) subsection 80(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999; or (b) subsection 13(3) of the Regional Broadband Scheme Charge Act. Definitions (11) In this section: fixed wireless broadband and satellite broadband matters means the matters referred to in paragraphs 13(3)(a) to (d) of the Regional Broadband Scheme Charge Act. Minister means the Minister administering the Telecommunications Act 1997. NBN Co has the same meaning as in the National Broadband Network Companies Act 2011. Regional Broadband Scheme means the scheme embodied in: (a) Part 3 of the Telecommunications (Consumer Protection and Service Standards) Act 1999; and (b) the Regional Broadband Scheme Charge Act. Regional Broadband Scheme Charge Act means the Telecommunications (Regional Broadband Scheme) Charge Act 2020. Schedule 1—Layer 2 bitstream services Part 1—Amendments Competition and Consumer Act 2010 1 Section 152AC Repeal the following definitions: (a) definition of designated superfast telecommunications network; (b) definition of Layer 2 bitstream service; (c) definition of national broadband network; (d) definition of superfast carriage service. 2 Section 152AGA Repeal the section. 3 Subsections 152AL(3C) to (3H) Repeal the subsections. 4 Subsection 152AL(8CA) Repeal the subsection. 5 Subsections 152ALA(1) and (5) Omit "(other than a declaration mentioned in subsection 152AL(3C))". 6 Subsection 152ALA(5A) Repeal the subsection. 7 Subsection 152AO(4) Repeal the subsection (including the note). 8 Sections 152ARA and 152ARB Repeal the sections. 9 Paragraph 152AZ(aa) Omit "152ARA, 152ARB,". 10 Paragraph 152BA(2)(aa) Omit "152ARA, 152ARB,". 11 Subsection 152BB(1AA) Repeal the subsection. 12 Subsection 152BC(4AA) Repeal the subsection. 13 Subsections 152BCB(4G) to (4J) Repeal the subsections. 14 Subsection 152BCB(5) Omit ", (4A) or (4G)", substitute "or (4A)". 15 Subsections 152BDA(4G) to (4J) Repeal the subsections. 16 Subsection 152BDA(5) Omit ", (4A) or (4G)", substitute "or (4A)". 17 Subsection 152BE(1B) Repeal the subsection. 18 Sections 152BEBE to 152BEBG Repeal the sections. 19 Section 152BEC Omit ", 152BEBC, 152BEBE and 152BEBF", substitute "and 152BEBC". 20 Subsection 152BED(2) Omit ", 152BEBC, 152BEBE and 152BEBF", substitute "and 152BEBC". 21 Subparagraphs 152CJH(a)(ia) and (ib) Repeal the subparagraphs. 22 Subparagraph 152CJH(a)(iii) Omit "and (4G) to (4J)". 23 Subparagraph 152CJH(a)(iv) Omit "and (4G) to (4J)". Telecommunications Act 1997 23A Section 7 (paragraph (a) of the definition of Layer 2 bitstream service) Repeal the paragraph, substitute: (a) a Layer 2 bitstream service (within the ordinary meaning of that expression); and 23B Section 7 (definition of Layer 2 bitstream service) Omit "this purpose, Layer 2", substitute "the purposes of determining the ordinary meaning of the expression used in paragraph (a), assume that Layer 2". 24 Part 7 Repeal the Part. 25 Subsection 349(16) (definition of local access line) Repeal the definition, substitute: local access line has the meaning given by section 349A. 26 After section 349 Insert: 349A Local access line (1) For the purposes of this Part, a local access line is a line that is part of the infrastructure of a local access network. (2) However, a line does not form part of a local access line to the extent that the line is on the customer side of the boundary of a telecommunications network. (3) For the purposes of this section, the boundary of a telecommunications network is to be determined in the same manner in which it is determined under section 22 for the purposes of sections 20, 21 and 30. (4) For the purposes of this section, local access network has the meaning generally accepted within the telecommunications industry. Part 2—Transitional provisions 27 Transitional—exemptions (1) If, immediately before the commencement of this item, an instrument was in force under subsection 141A(1) of the Telecommunications Act 1997, the instrument has effect, after the commencement of this item, as if: (a) it had been made under subsection 144(1) of that Act; and (b) each reference in the instrument to section 141 of that Act were a reference to section 143 of that Act. (2) If, immediately before the commencement of this item, an instrument was in force under subsection 141A(2) of the Telecommunications Act 1997, the instrument has effect, after the commencement of this item, as if: (a) it had been made under subsection 144(2) of that Act; and (b) each reference in the instrument to section 141 of that Act were a reference to section 143 of that Act. (3) If, immediately before the commencement of this item, an instrument was in force under subsection 141A(3) of the Telecommunications Act 1997, the instrument has effect, after the commencement of this item, as if: (a) it had been made under subsection 144(3) of that Act; and (b) each reference in the instrument to subsections 141(2) and (3) of that Act were a reference to subsection 143(2) of that Act. Schedule 2—Local access lines Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 1 Section 3 Repeal the section. 2 Subsection 4(1) Insert: designated commencement date means the date on which Schedule 2 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 commences. functional separation undertaking has the same meaning as in Part 8 of the Telecommunications Act 1997. 3 Subsection 4(1) (at the end of the definition of local access line) Add "(as that section stood immediately before the commencement of Schedule 2 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020)". 4 Subsection 4(1) (at the end of the definition of superfast carriage service) Add "(as that section stood immediately before the commencement of Schedule 2 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020)". 5 Section 5 Before "A carrier licence", insert "(1)". 6 Section 5 Omit "residential customers.", substitute: residential customers, and: (a) the network came into existence before the designated commencement date; and (b) the network has not been altered, upgraded or extended on or after the designated commencement date; and (c) no functional separation undertaking given by the carrier is in force. 7 At the end of section 5 Add: (2) A reference in paragraph (1)(c) to a functional separation undertaking given by a carrier is a reference to a functional separation undertaking given by the carrier either: (a) alone; or (b) jointly with one or more other persons. Competition and Consumer Act 2010 11 After paragraph 151BU(4)(da) Insert: (db) the operation of Part 8 of the Telecommunications Act 1997 (which deals with local access lines); or 12 After subparagraph 151BUA(2)(b)(iia) Insert: (iib) the operation of Part 8 of the Telecommunications Act 1997 (which deals with local access lines); or 13 After subparagraph 151BUB(2)(b)(iia) Insert: (iib) the operation of Part 8 of the Telecommunications Act 1997 (which deals with local access lines); or 14 After subparagraph 151BUC(2)(b)(iia) Insert: (iib) the operation of Part 8 of the Telecommunications Act 1997 (which deals with local access lines); or Legislation (Exemptions and Other Matters) Regulation 2015 15 Section 12 (table item 61, column headed "Legislative instrument", after paragraph (a)) Insert: (aa) the Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 made under subsection 63(2) of that Act; Telecommunications Act 1997 17 After subsection 69(4) Insert: (4A) Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI. Note: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines). 18 After subsection 70(1) Insert: (1A) Subsection (1) does not apply to a condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI. Note: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines). 19 Before paragraph 70(5)(a) Insert: (aaa) the condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI; 20 After subsection 102(4) Insert: (4A) Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI. Note: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines). 21 After subsection 103(1) Insert: (1A) Subsection (1) does not apply to the rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI. Note: Sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH and 151ZI are set out in Part 8 (local access lines). 22 After subsection 103(4E) Insert: (4F) The ACCC may issue a formal warning if a person contravenes the service provider rule set out in Part 1 of Schedule 2 in so far as that rule relates to section 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI. 23 Part 8 (heading) Repeal the heading, substitute: Part 8—Local access lines 24 Section 142 Repeal the section, substitute: 142 Simplified outline of this Part • A controller of a local access line (other than a line that is part of the infrastructure of the national broadband network) must not use the line to supply an eligible service to a person other than a carrier or a service provider, if: (a) the line came into existence, or was upgraded, on or after the designated commencement date; and (b) the line is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and (c) no functional separation undertaking is in force. • A controller of a telecommunications network (other than the national broadband network) must not use a local access line to supply an eligible service to a person other than a carrier or a service provider, if: (a) the line is part of the infrastructure of the network; and (b) the network came into existence, or was upgraded, on or after 1 January 2011, but before the designated commencement date; and (c) the network is used, or is proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and (d) no functional separation undertaking is in force. 25 Section 142A (definition of alter) After "network", insert "or line". 26 Section 142A Insert: associate has the meaning given by section 152. business unit means a part of a corporation. close proximity has a meaning affected by section 162. corporation means a body corporate. customer interface means an interface for the purposes of: (a) ordering; and (b) provisioning; and (c) billing; and (d) service activation; and (e) fault rectification; in relation to the supply of local access line services. declared service has the same meaning as in Part XIC of the Competition and Consumer Act 2010. designated carriage service has the meaning given by section 142BD. designated commencement date means the date on which Schedule 2 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 commences. fixed‑line carriage service means a carriage service that is supplied using a line to premises occupied or used by an end‑user. functional includes organisational. functional separation undertaking means: (a) a standard functional separation undertaking; or (b) a joint functional separation undertaking. fundamental provision of a functional separation undertaking has the meaning given by subsection 151A(9) or 151C(9). joint functional separation undertaking means an undertaking under section 151C. local access line service means an eligible service supplied using a local access line. multi‑unit building means: (a) a building that has 2 or more units for occupation as a place of residence or business; or (b) a building in a complex, where each building has 2 or more units for occupation as a place of residence or business. residential customer has a meaning affected by section 161. retail business unit of a corporation means a business unit by which the corporation deals with the corporation's retail customers in relation to the supply of local access line services. retail customer means a customer other than a wholesale customer. retailer, when used in relation to a joint functional separation undertaking, means a person identified in the undertaking as the retailer, or one of the retailers, for the purposes of the undertaking. Note: See paragraph 151C(2)(a). 27 Section 142A (definition of small business customer) Repeal the definition. 28 Section 142A Insert: standard functional separation undertaking means an undertaking under section 151A. 29 Section 142A (paragraph (b) of the definition of superfast carriage service) Omit "more than 25 megabits per second", substitute "25 megabits per second or more". 30 Section 142A Insert: supply, in relation to a service, includes supply of the service by a corporation to itself. This definition does not apply to subsection 142C(2) or 143(2). unsatisfactory compliance record has a meaning affected by section 142BC. 31 Section 142A (definition of upgrade) After "network", insert "or line". 32 Section 142A Insert: wholesale business unit of a corporation means a business unit by which the corporation deals with its wholesale customers, and its retail business unit, in relation to the supply of local access line services. wholesale customer means a customer that is: (a) a carrier; or (b) a service provider. wholesaler, when used in relation to a joint functional separation undertaking, means a person identified in the undertaking as the wholesaler, or one of the wholesalers, for the purposes of the undertaking. Note: See paragraph 151C(2)(a). worker means an individual who is: (a) an employee; or (b) a contractor or subcontractor; or (c) an employee of a contractor or subcontractor. 33 At the end of Division 1 of Part 8 Add: 142B Functional separation undertaking given by a person A reference in this Part to a functional separation undertaking given by a person is a reference to a functional separation undertaking given by the person either: (a) alone; or (b) jointly with one or more other persons. 142BA Promotion of the long‑term interests of end‑users of carriage services and of services supplied by means of carriage services For the purposes of this Part, the question whether a particular thing promotes the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services is to be determined in the same manner as it is determined for the purposes of Part XIC of the Competition and Consumer Act 2010. 142BB Terms and conditions For the purposes of this Part: (a) a notional contract (however described) between a corporation's business units is to be treated as if it were an actual contract; and (b) any terms and conditions (whether or not relating to price or a method of ascertaining price) in such a notional contract are to be treated as if they were actual terms and conditions. 142BC Unsatisfactory compliance record For the purposes of this Part, the question of whether a person has an unsatisfactory compliance record in relation to functional separation is to be determined having regard only to: (a) any breaches by the person of functional separation undertakings given by the person, so long as the breaches occurred when the undertakings were in force; and (b) any contraventions by the person of section 143B, 151ZA, 151ZB, 151ZF, 151ZG, 151ZH or 151ZI. 142BD Designated carriage service (1) For the purposes of this Part, designated carriage service means: (a) if a carriage service is specified in an instrument under subsection (2)—that carriage service; or (b) otherwise—a Layer 2 bitstream service. (2) The ACCC may, by legislative instrument, specify a carriage service for the purposes of paragraph (1)(a). (3) The ACCC must not specify a carriage service under subsection (2) unless: (a) the carriage service enables end‑users to download communications; and (b) the download transmission speed of the carriage service is normally 25 megabits per second or more; and (c) the carriage service is supplied using a line to premises occupied or used by an end‑user; and (d) there is in force a declaration under subsection 152AL(3) of the Competition and Consumer Act 2010 that relates to the carriage service. 34 Before section 143 Insert: 142C Supply of eligible services to be on wholesale basis—lines that come into existence on or after the designated commencement date etc. Scope (1) This section applies to a local access line if: (a) the line is part of the infrastructure of a telecommunications network in Australia; and (b) the network is not the national broadband network; and (c) the line is used, or proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and (d) either: (i) the line came into existence on or after the designated commencement date; or (ii) the line was altered or upgraded on or after the designated commencement date, and as a result of the alteration or upgrade, the line became capable of being used to supply a superfast carriage service to residential customers in Australia. Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date). Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date). Note 3: For exemptions, see sections 143A to 151. Use of line (2) If a person (the first person): (a) is in a position to exercise control of the line; or (b) is an associate of a person who is in a position to exercise control of the line; the first person must not, on or after the designated commencement date, use the line, either alone or jointly with one or more other persons, to supply an eligible service unless the service is supplied to: (c) a carrier; or (d) a service provider. Note: For when a person is in a position to exercise control of a line, see section 155A. (3) Subsection (2) does not apply to the use of the line if a functional separation undertaking given by the first person is in force, unless: (a) the ACCC has given a notice under section 151W revoking the undertaking; and (b) the revocation has not taken effect; and (c) the line came into existence after the notice was given. Note 1: A functional separation undertaking relates to the supply of eligible services using a local access line, irrespective of when the line came into existence. Note 2: See also section 142B. Ancillary contraventions (4) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (2); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (2); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or (d) conspire with others to effect a contravention of subsection (2). Civil penalty provisions (5) Subsections (2) and (4) are civil penalty provisions. Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions. 35 Section 143 (heading) Repeal the heading, substitute: 143 Supply of eligible services to be on wholesale basis—networks in existence before the designated commencement date etc. 36 Paragraph 143(1)(b) Omit "or small business" (wherever occurring). 37 Subparagraph 143(1)(d)(i) After "2011", insert ", but before the designated commencement date". 38 Subparagraph 143(1)(d)(ii) After "2011", insert ", but before the designated commencement date,". 39 Subparagraph 143(1)(d)(ii) Omit "or small business" (wherever occurring). 40 Subsection 143(1) (note 2) Omit "144", substitute "143A". 41 Subsections 143(2) and (3) Repeal the subsections (including the penalty), substitute: Use of network (2) If a person (the first person): (a) is in a position to exercise control of the network; or (b) is an associate of a person who is in a position to exercise control of the network; the first person must not use the line, either alone or jointly with one or more other persons, to supply an eligible service unless the service is supplied to: (c) a carrier; or (d) a service provider. Note: For when a person is in a position to exercise control of a network, see section 155. (3) Subsection (2) does not apply to the use of the line if a functional separation undertaking given by the first person is in force, unless: (a) the ACCC has given a notice under section 151W revoking the undertaking; and (b) the revocation has not taken effect; and (c) the line came into existence after the notice was given. Note 1: A functional separation undertaking relates to the supply of eligible services using a local access line, irrespective of when the line came into existence. Note 2: See also section 142B. (4) Subsection (2) does not apply to the use of the line if: (a) the Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014 is in force; and (b) the line is part of the infrastructure of a designated telecommunications network (within the meaning of that declaration); and (c) a carrier owns or operates the network; and (d) as a result of the application of section 5 of that declaration to the network, the carrier licence held by the carrier is subject to the conditions set out in subsections 6(5), (5A), (6), (7) and (8) of that declaration. Ancillary contraventions (5) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (2); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (2); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (2); or (d) conspire with others to effect a contravention of subsection (2). Civil penalty provisions (6) Subsections (2) and (5) are civil penalty provisions. Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions. 42 After section 143 Insert: 143AA Judicial enforcement of prohibitions (1) If the Federal Court is satisfied that a person has, on or after the designated commencement date, contravened subsection 142C(2) or (4) or 143(2) or (5), the Court may, on the application of: (a) the ACCC; or (b) a carrier; or (c) a carriage service provider; make all or any of the following orders: (d) an order directing the person to comply with that subsection; (e) an order directing the person to compensate any other person (who may be the applicant) who has suffered loss or damage as a result of the contravention; (f) any other order that the Court thinks appropriate. (2) The Federal Court may discharge or vary an order granted under this section. Division 2A—Exemptions 143A Class exemptions Determination providing for exemption (1) The ACCC may, by legislative instrument, determine that, if: (a) a person is included in a specified class of persons; and (b) the person has, by written notice given to the ACCC, elected to be bound by the determination; and (c) the person has not, by written notice given to the ACCC, cancelled the election; and (d) in a case where the person is not a member of an associated group—the number of residential customers to whom the person supplies fixed‑line carriage services does not exceed: (i) 2,000; or (ii) if a higher number (not exceeding 12,000) is specified in the regulations—that higher number; and (e) in a case where the person is a member of an associated group—the total number of residential customers to whom the members of the group supply fixed‑line carriage services does not exceed: (i) 2,000; or (ii) if a higher number (not exceeding 12,000) is specified in the regulations—that higher number; the person is exempt from section 142C. Note: For associated group, see subsection (10) of this section. (2) The ACCC may, by legislative instrument, determine that, if: (a) a person is included in a specified class of persons; and (b) the person has, by written notice given to the ACCC, elected to be bound by the determination; and (c) the person has not, by written notice given to the ACCC, cancelled the election; and (d) in a case where the person is not a member of an associated group—the number of residential customers to whom the person supplies fixed‑line carriage services does not exceed: (i) 2,000; or (ii) if a higher number (not exceeding 12,000) is specified in the regulations—that higher number; and (e) in a case where the person is a member of an associated group—the total number of residential customers to whom the members of the group supply fixed‑line carriage services does not exceed: (i) 2,000; or (ii) if a higher number (not exceeding 12,000) is specified in the regulations—that higher number; the person is exempt from section 143. Note: For associated group, see subsection (10) of this section. (3) A determination under subsection (1) or (2) is subject to the following conditions and limitations: (a) the person must ensure that a designated carriage service is available for supply to wholesale customers, or prospective wholesale customers, of the person; (b) the person must not discriminate between the person's wholesale customers, or the person's prospective wholesale customers, in relation to the supply of designated carriage services; (c) the person must not discriminate in favour of itself in relation to the supply of designated carriage services; (d) the person must not, in carrying on any of the following activities, discriminate between the person's wholesale customers or the person's prospective wholesale customers: (i) developing a new eligible service; (ii) enhancing an eligible service; (iii) extending or enhancing the capability of a facility or telecommunications network by means of which an eligible service is, or is to be, supplied; (iv) planning for a facility or telecommunications network by means of which an eligible service is, or is to be, supplied; (v) an activity that is preparatory to the supply of an eligible service; (vi) an activity that is ancillary or incidental to the supply of an eligible service; (vii) giving information to service providers about any of the above activities; (e) the person must not discriminate in favour of itself in relation to the carrying on of any of the following activities: (i) developing a new eligible service; (ii) enhancing an eligible service; (iii) extending or enhancing the capability of a facility or telecommunications network by means of which an eligible service is, or is to be, supplied; (iv) planning for a facility or telecommunications network by means of which an eligible service is, or is to be, supplied; (v) an activity that is preparatory to the supply of an eligible service; (vi) an activity that is ancillary or incidental to the supply of an eligible service; (vii) giving information to service providers about any of the above activities; (f) such other conditions and limitations as are specified in the determination. Note 1: For compliance with conditions and limitations, see section 143B. Note 2: For judicial enforcement of conditions and limitations, see section 143C. (4) The rule in paragraph (3)(b) does not prevent discrimination against a wholesale customer, or prospective wholesale customer, if the person has reasonable grounds to believe that the wholesale customer or prospective wholesale customer would fail, to a material extent, to comply with the terms and conditions on which the person supplies designated carriage services. (5) Examples of grounds for believing as mentioned in subsection (4) include: (a) evidence that the wholesale customer or prospective wholesale customer is not creditworthy; and (b) repeated failures by the wholesale customer or prospective wholesale customer to comply with the terms and conditions on which the person supplied eligible services (whether or not using the line). (6) A determination under subsection (1) or (2) must not specify a condition or limitation of a kind specified in a determination under subsection (7). (7) The Minister may, by legislative instrument, determine one or more kinds of condition or limitation for the purposes of subsection (6). Criteria for making determination (8) In deciding whether to make a determination under subsection (1) or (2), the ACCC must have regard to: (a) whether the determination promotes the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services; and (b) the matters (if any) specified in a determination under subsection (9); and (c) such other matters (if any) as the ACCC considers relevant. (9) The Minister may, by legislative instrument, determine one or more matters for the purposes of paragraph (8)(b). Associated group (10) For the purposes of this section, if: (a) a person is in a position to exercise control of: (i) a local access line; or (ii) a telecommunications network; and (b) the person has one or more associates; then: (c) the person is taken to belong to an associated group; and (d) the associated group consists of the person and those associates. 143B Compliance with conditions and limitations of exemption determinations (1) A person must, on or after the designated commencement date, comply with the conditions or limitations of a determination under subsection 143A(1) or (2). Ancillary contraventions (2) A person must not: (a) aid, abet, counsel or procure a contravention of subsection (1); or (b) induce, whether by threats or promises or otherwise, a contravention of subsection (1); or (c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1); or (d) conspire with others to effect a contravention of subsection (1). Civil penalty provisions (3) Subsections (1) and (2) are civil penalty provisions. Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions. 143C Judicial enforcement of conditions and limitations of exemption determinations (1) If the Federal Court is satisfied that a person has, on or after the designated commencement date, contravened any of the conditions or limitations of a determination under subsection 143A(1) or (2), the Court may, on the application of: (a) the ACCC; or (b) a carrier; or (c) a carriage service provider; make all or any of the following orders: (d) an order directing the person to comply with the condition or limitation; (e) an order directing the person to compensate any other person (who may be the applicant) who has suffered loss or damage as a result of the contravention; (f) any other order that the Court thinks appropriate. (2) The Federal Court may discharge or vary an order granted under this section. 143D Publication of list of persons who have elected to be bound by exemption determinations If a determination is in force under subsection 143A(1) or (2), the ACCC must publish on its website a list setting out the names of the persons who: (a) have elected to be bound by the determination; and (b) have not cancelled the election concerned. 143E Exemptions—certain real estate development projects etc. (1) If: (a) a part of the infrastructure of a telecommunications network is situated in a particular area that: (i) on 1 January 2011, was being developed as a particular stage of a real estate development project; or (ii) before 1 January 2011, was developed as a particular stage of a real estate development project; and (b) on or after the designated commencement date, the network is extended to another area that is being, or is to be, developed as another stage of the project; and (c) a carrier installs telecommunications network infrastructure; and (d) the infrastructure mentioned in paragraph (c) is part of the extension; the infrastructure mentioned in paragraph (c) is exempt from sections 142C and 143. (2) If: (a) a part of the infrastructure of a telecommunications network is situated in a particular area that: (i) on 1 January 2011, was being developed as a particular stage of a real estate development project; or (ii) before 1 January 2011, was developed as a particular stage of a real estate development project; and (b) during the period: (i) beginning at the start of the designated commencement date; and (ii) ending when the Minister makes a declaration under section 48 of the National Broadband Network Companies Act 2011 that, in the Minister's opinion, the national broadband network should be treated as built and fully operational; the network is extended to an area that is: (iii) the project area of a real estate development project specified under subsection (3); or (iv) the project area of a real estate development project that belongs to a class of real estate development projects specified under subsection (5); or (v) the project area of a building redevelopment project specified under subsection (6); or (vi) the project area of a building redevelopment project that belongs to a class of building redevelopment projects specified under subsection (8); and (c) a carrier installs telecommunications network infrastructure; and (d) the infrastructure mentioned in paragraph (c) is part of the extension; the infrastructure mentioned in paragraph (c) is exempt from sections 142C and 143. (3) The Minister may, by notifiable instrument, specify one or more real estate development projects for the purposes of subparagraph (2)(b)(iii). (4) Subsection 13(3) of the Legislation Act 2003 does not apply to subsection (3) of this section. (5) The Minister may, by legislative instrument, specify one or more classes of real estate development projects for the purposes of subparagraph (2)(b)(iv). (6) The Minister may, by notifiable instrument, specify one or more building redevelopment projects for the purposes of subparagraph (2)(b)(v). (7) Subsection 13(3) of the Legislation Act 2003 does not apply to subsection (6) of this section. (8) The Minister may, by legislative instrument, specify one or more classes of building redevelopment projects for the purposes of subparagraph (2)(b)(vi). Building redevelopment project (9) For the purposes of this section, a project is a building redevelopment project if the project involves: (a) the significant refurbishment or repurposing of one or more buildings so as to bring into existence one or more building units; and (b) the making available of any or all of those building units for sale or lease. (10) For the purposes of this section, the area or areas occupied by the building or buildings are the project area for the building redevelopment project. (11) For the purposes of subsection (9), it is immaterial whether: (a) the project has been, is being, or will be, implemented in stages; or (b) different elements of the project have been, are being, or will be, carried out by different persons; or (c) one or more approvals are given, are required, or will be required, under a law of the Commonwealth, a State or a Territory, for the project, or any element of the project. 143F Exemptions—lines installed in close proximity to other lines (1) If: (a) a telecommunications network came into existence on or after 1 January 2011; and (b) a line came into existence on or after the designated commencement date for the purposes of connecting particular premises to the network; and (c) the coming into existence of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the line; and (d) the premises are in close proximity to a line that forms part of the infrastructure of the network as the network stood immediately before the designated commencement date; and (e) the line mentioned in paragraph (b) is used to supply a superfast carriage service; the line mentioned in paragraph (b) is exempt from section 142C. Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date). Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date). (2) If: (a) a designated telecommunications network (within the meaning of the Carrier Licence Conditions (Networks supplying Superfast Carriage Services to Residential Customers) Declaration 2014) was in existence immediately before the designated commencement date; and (b) a line came into existence on or after the designated commencement date for the purposes of connecting particular premises to the network; and (c) the coming into existence of the line enables or enabled the occupier of the premises to become a customer in relation to carriage services supplied using the line; and (d) the premises are in close proximity to a line that forms part of the infrastructure of the network as the network stood immediately before the designated commencement date; and (e) the line mentioned in paragraph (b) is used to supply a superfast carriage service; the line mentioned in paragraph (b) is exempt from section 142C. Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date). Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date). 143G Exemptions—networks covered by exemption instruments (1) If: (a) the Telecommunications (Network Exemption—TransACT Very Small Scale Networks) Instrument 2012 was in force at the start of the designated commencement date; and (b) a line came into existence on or after the designated commencement date; and (c) the line forms part of the infrastructure of: (i) an ACT Very Small Scale Network that is a FTTP network or a VDSL network (within the meaning of that instrument); or (ii) a Victorian Very Small Scale Network that is a FTTP network, a VDSL network or a HFC network (within the meaning of that instrument); and (d) that instrument has not ceased to be in force; the line is exempt from section 142C. Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date). Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date). (2) If: (a) the Telecommunications (Network Exemption—Telstra South Brisbane Network) Instrument 2012 was in force at the start of the designated commencement date; and (b) a line came into existence on or after the designated commencement date; and (c) the line forms part of the infrastructure of the Telstra South Brisbane Network (within the meaning of that instrument); and (d) that instrument has not ceased to be in force; the line is exempt from section 142C. Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date). Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date). (3) If: (a) the Telecommunications (Network Exemption—TransACT Upgraded VDSL Networks) Instrument 2012 was in force at the start of the designated commencement date; and (b) a line came into existence on or after the designated commencement date; and (c) the line forms part of the infrastructure of a TransACT Upgraded VDSL Network (within the meaning of that instrument); and (d) that instrument has not ceased to be in force; the line is exempt from section 142C. Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date). Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date). (4) If: (a) the Telecommunications (Network Exemption—Specified Velocity Networks) Instrument 2012 was in force at the start of the designated commencement date; and (b) a line came into existence on or after the designated commencement date; and (c) the line forms part of the infrastructure of a Specified Velocity Network (within the meaning of that instrument); and (d) that instrument has not ceased to be in force; the line is exempt from section 142C. Note 1: See also section 156A (certain lines deemed to have come into existence on or after the designated commencement date). Note 2: See also section 158A (certain line extensions deemed to be local access lines in their own right, and to have come into existence on or after the designated commencement date). (5) For the purposes of paragraph (4)(c) of this section, assume that paragraph (c) of the definition of Specified Velocity Network in the Telecommunications (Network Exemption—Specified Velocity Networks) Instrument 2012 were modified by omitting all the words from and including "in accordance with" to and including "project". 143H Exemption—networks marketed as business networks (1) If: (a) a local access line is part of the infrastructure of a telecommunications network operated by a carrier; and (b) the network is marketed by the carrier exclusively as a business network; and (c) the line is used, or proposed to be used, to supply a superfast carriage service wholly or principally to residential customers, or prospective residential customers, in Australia; and (d) that use or proposed use, when considered in relation to the use or proposed use of all of the local access lines that are part of the infrastructure of the network, is minor; and (e) the other conditions (if any) determined under subsection (2) have been satisfied; the line is exempt from section 142C. (2) The Minister may, by legislative instrument, determine one or more conditions for the purposes of paragraph (1)(e). 43 At the end of section 144 Add: (7) The Minister must not make an instrument under subsection (1), (2) or (3) on or after the designated commencement date. (8) Subsection (7) does not prevent the Minister from varying an instrument that was in force immediately after the start of the designated commencement date. 44 Subsections 145(1), (3) and (5) Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and 143(2) do". 45 Subsection 146(1) Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and 143(2) do". 46 Subsection 147(1) Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and 143(2) do". 47 Subsection 148(1) Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and 143(2) do". 48 Subsection 149(1) Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and 143(2) do". 49 Subsection 150(1) Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and 143(2) do". 50 Subsection 151(1) Omit "Subsection 143(2) does", substitute "Subsections 142C(2) and 143(2) do". 51 Before Division 3 of Part 8 Insert: Division 2B—Functional separation undertakings 151A Standard functional separation undertaking (1) If a person is a corporation, the person may give a written undertaking (a standard functional separation undertaking) to the ACCC. (2) The undertaking must: (a) provide that the person will maintain: (i) a single wholesale business unit; and (ii) a single retail business unit; and (b) provide that the person will maintain arm's length functional separation between: (i) the person's wholesale business unit; and (ii) the person's retail business unit; and (c) provide that the person will ensure that: (i) the terms and conditions relating to price or a method of ascertaining price; and (ii) other terms and conditions; on which the person's wholesale business unit supplies local access line services to the person's retail business unit are documented; and (d) provide that the person will, to the extent specified in the undertaking, ensure that the workers who perform their duties for the person's wholesale business unit are different from the workers who perform their duties for the person's retail business unit; and (e) provide that the person will, to the extent specified in the undertaking, ensure that there are separate: (i) operational support systems; and (ii) business systems; and (iii) communications systems; and (iv) accounts; for: (v) the person's wholesale business unit; and (vi) the person's retail business unit; and (f) provide that the person will publish on the person's website: (i) the terms and conditions relating to price or a method of ascertaining price; and (ii) other terms and conditions; on which the person's wholesale business unit offers to supply local access line services to the following: (iii) the person's retail business unit; (iv) the person's wholesale customers or prospective wholesale customers; and (g) provide that the person will: (i) if requested to do so by a wholesale customer or prospective wholesale customer, supply a local access line service to the wholesale customer or prospective wholesale customer; and (ii) do so on the terms and conditions that were published on the person's website at the time when the request was made; and (h) provide that the person will ensure that information provided to the person's wholesale business unit by the person's wholesale customers is not disclosed to the person's retail business unit; and (i) provide that the person will ensure that the person's retail business unit does not obtain, access or use information provided to the person's wholesale business unit by the person's wholesale customers; and (j) provide that the person will ensure that information provided to the person's retail business unit by a carrier or carriage service provider (other than information of a kind specified in a determination under subsection (13)) is not disclosed to the person's wholesale business unit; and (k) provide that the person will ensure that the person's wholesale business unit does not obtain, access or use information provided to the person's retail business unit by a carrier or carriage service provider (other than information of a kind specified in a determination under subsection (13)); and (l) provide that the person will use the same customer interface for dealings between: (i) the person's wholesale business unit; and (ii) the person's wholesale customers; as the person uses for dealings between: (iii) the person's wholesale business unit; and (iv) the person's retail business unit; and (m) contain such other provisions (if any) as are specified in a determination under subsection (14); and (n) not contain a provision of a kind specified in a determination under subsection (15). Note: A standard functional separation undertaking is supplemented by section 151ZF (which requires eligible services to be supplied on a non‑discriminatory basis) and section 151ZG (which requires related activities to be carried on on a non‑discriminatory basis). (3) An extent specified under paragraph (2)(d) or (e) may be a nil extent. Form etc. (4) The undertaking must: (a) be in a form approved in writing by the ACCC; and (b) be accompanied by such information as is reasonably likely to assist the ACCC to decide whether to accept or reject the undertaking; and (c) be accompanied by the fee (if any) specified in, or ascertained in accordance with, a determination under subsection (16). Expiry time (5) The undertaking must specify the expiry time of the undertaking. (6) The expiry time of the undertaking may be described by reference to the end of a period beginning when the undertaking comes into force. (7) Subsection (6) does not, by implication, limit subsection (5). (8) The expiry time of the undertaking must not be more than 10 years after the undertaking comes into force. Fundamental provisions (9) The undertaking: (a) must state that the provisions of the undertaking covered by paragraphs (2)(a), (b), (c), (f), (g), (h), (i), (j) and (k) are fundamental provisions; and (b) may state that one or more other provisions of the undertaking are fundamental provisions. Compliance reports (10) The undertaking must provide that the person will give the ACCC periodic reports (to be known as compliance reports) that: (a) relate to the person's compliance with the undertaking; and (b) are in a form approved in writing by the ACCC. Note: See section 151ZJ (self‑incrimination). Compliance plans (11) The undertaking must provide that the person will: (a) prepare a plan (to be known as a compliance plan) setting out the actions to be taken by the person for the purpose of ensuring that the person complies with the undertaking; and (b) give the ACCC: (i) a copy of the compliance plan; and (ii) a copy of any variation of the compliance plan. ACCC may perform functions or exercise powers (12) If the 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. Determinations (13) The ACCC may, by legislative instrument, determine one or more kinds of information for the purposes of paragraphs (2)(j) and (k). (14) The Minister may, by legislative instrument, determine one or more provisions for the purposes of paragraph (2)(m). (15) The Minister may, by legislative instrument, determine one or more kinds of provisions for the purposes of paragraph (2)(n). (16) The ACCC may, by legislative instrument, determine a fee, or a method of ascertaining a fee, for the purposes of paragraph (4)(c). (17) A fee determined under, or ascertained in accordance with, subsection (16) must not be such as to amount to taxation. 151B Deemed standard functional separation undertaking (1) The ACCC may, by legislative instrument, determine that, if: (a) a corporation is included in a specified class of corporations; and (b) the corporation has, by written notice given to the ACCC, elected to be bound by the determination; and (c) the corporation has not, by written notice given to the ACCC, cancelled the election; and (d) the ACCC has not revoked the election under subsection (7); this Act has effect as if: (e) the corporation had given a standard functional separation undertaking in the terms set out in the determination; and (f) the ACCC had accepted the undertaking; and (g) if the election was given before the designated commencement date—the undertaking had come into force on the designated commencement date; and (h) if the election was given on or after the designated commencement date—the undertaking had come into force when the election was given to the ACCC. (1A) A functional separation undertaking covered by a determination under subsection (1) must comply with the following provisions: (a) paragraphs 151A(2)(a) to (m); (b) subsections 151A(9), (10) and (11). (1B) A functional separation undertaking covered by a determination under subsection (1) must not contain a provision of a kind specified in a determination under subsection 151A(15). (2) The following provisions do not apply to a functional separation undertaking covered by a determination under subsection (1): (a) subsections 151A(4) to (8); (b) section 151N; (c) section 151P; (d) section 151Q; (e) section 151W. (3) If, as a result of an election under a determination under subsection (1), a corporation is taken to have given a standard functional separation undertaking: (a) this Act does not prevent the corporation from giving the ACCC another standard functional separation undertaking; and (b) if the other standard functional separation undertaking comes into force—the corporation is taken to have cancelled the election immediately before the other standard functional separation undertaking comes into force. (4) If, as a result of an election under a determination under subsection (1), a corporation is taken to have given a standard functional separation undertaking: (a) this Act does not prevent the corporation, together with one or more other persons, from giving the ACCC a joint functional separation undertaking; and (b) if the joint functional separation undertaking comes into force—the corporation is taken to have cancelled the election immediately before the joint functional separation undertaking comes into force. (5) Before making a determination under subsection (1), the ACCC must: (a) publish on the ACCC's website a notice: (i) setting out the draft determination; and (ii) inviting persons to make submissions to the ACCC about the draft determination within the time limit specified in the notice; and (b) consider any submissions received within the time limit specified in the notice. (6) The tim