Commonwealth: Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 (Cth)

Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010 Act No. 140 of 2010 as amended This compilation was prepared on 7 December 2012 taking into account amendments up to Act No. 136 of 2012 The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section Prepared by the Office of Parliamentary Counsel, Canberra Contents 1 Short title [see Note 1]........................... 2 Commencement............................... 3 Schedule(s) Schedule 1—Amendments Part 1A—Objects Telecommunications Act 1997 Part 1—Amendments relating to Telstra Division 1—Amendments commencing on the day after this Act receives the Royal Assent Radiocommunications Act 1992 Telecommunications Act 1997 Competition and Consumer Act 2010 Division 2—Amendments commencing immediately after a final functional separation undertaking comes into force Telecommunications Act 1997 Competition and Consumer Act 2010 Division 3—Amendments commencing immediately after an undertaking about structural separation comes into force Telecommunications Act 1997 Competition and Consumer Act 2010 Part 2—Telecommunications access regime Division 1—Amendments National Transmission Network Sale Act 1998 Telecommunications Act 1997 Competition and Consumer Act 2010 Division 2—Transitional provisions Part 3—Anti‑competitive conduct Division 1—Amendments Competition and Consumer Act 2010 Division 2—Application Part 4—Universal service regime Telecommunications (Consumer Protection and Service Standards) Act 1999 Part 5—Customer service guarantee Telecommunications (Consumer Protection and Service Standards) Act 1999 Part 5A—Record‑keeping rules Telecommunications Act 1997 Part 6—Priority assistance Telecommunications Act 1997 Part 7—Infringement notices etc. Division 1—Amendments Telecommunications Act 1997 Division 2—Application Part 8—Civil penalty provisions Telecommunications Act 1997 Part 9—Industry standards Telecommunications Act 1997 Notes An Act to amend legislation relating to telecommunications, and for other purposes 1 Short title [see Note 1] This Act may be cited as the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 15 December 2010 1A. Schedule 1, Part 1A The day after this Act receives the Royal Assent. 16 December 2010 2. Schedule 1, Part 1, Division 1 The later of: start of 1 January 2011 (a) the start of the day after this Act receives the Royal Assent; and (paragraph (b) applies) (b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010. 3. Schedule 1, Part 1, Division 2 Immediately after a final functional separation undertaking comes into force under Part 9 of Schedule 1 to the Telecommunications Act 1997. The Minister must announce by notice in the Gazette the time when a final functional separation undertaking comes into force under Part 9 of Schedule 1 to the Telecommunications Act 1997. 4. Schedule 1, Part 1, Division 3 Immediately after an undertaking comes into force under section 577A of the Telecommunications Act 1997. 6 March 2012 (see Gazette 2012, No. S23) The Minister must announce by notice in the Gazette the time when an undertaking comes into force under section 577A of the Telecommunications Act 1997. 5. Schedule 1, Parts 2 and 3 The later of: start of 1 January 2011 (a) the start of the day after this Act receives the Royal Assent; and (paragraph (b) applies) (b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010. 6. Schedule 1, Part 4 The day after the end of the period of 3 months beginning on the day this Act receives the Royal Assent. 15 March 2011 7. Schedule 1, Part 5 The day after the end of the period of 6 months beginning on the day this Act receives the Royal Assent. 15 June 2011 8. Schedule 1, Part 5A The day after this Act receives the Royal Assent. 16 December 2010 9. Schedule 1, Part 6 The day after the end of the period of 3 months beginning on the day this Act receives the Royal Assent. 15 March 2011 10. Schedule 1, Part 7 The later of: start of 1 January 2011 (a) the start of the day after this Act receives the Royal Assent; and (paragraph (b) applies) (b) immediately after the commencement of item 2 of Schedule 5 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010. 11. Schedule 1, Part 8 The day after this Act receives the Royal Assent. 16 December 2010 12. Schedule 1, Part 9 The day after this Act receives the Royal Assent. 16 December 2010 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in Column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedule(s) 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. Note: On 1 January 2011, the short title of the Trade Practices Act 1974 was changed to the Competition and Consumer Act 2010 by the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010. Schedule 1—Amendments Part 1A—Objects Telecommunications Act 1997 1A At the end of subsection 3(1) Add: ; and (c) the availability of accessible and affordable carriage services that enhance the welfare of Australians. Part 1—Amendments relating to Telstra Division 1—Amendments commencing on the day after this Act receives the Royal Assent Radiocommunications Act 1992 1 After subsection 58(1) Insert: (1A) Subsection (1) has effect subject to section 577J of the Telecommunications Act 1997. 2 At the end of section 60 Add: (15) This section has effect subject to section 577J of the Telecommunications Act 1997. 3 At the end of section 62 Add: (4) This section has effect subject to section 577J of the Telecommunications Act 1997. 4 At the end of section 68 Add: (5) This section has effect subject to section 577K of the Telecommunications Act 1997. 5 Subsection 85(1) After "section 86", substitute "of this Act and section 577L of the Telecommunications Act 1997". Telecommunications Act 1997 6 Section 7 Insert: designated part of the spectrum has the meaning given by section 577H. 7 Section 7 Insert: draft functional separation undertaking means a draft functional separation undertaking under Division 2 of Part 9 of Schedule 1. 8 Section 7 Insert: draft migration plan means a draft migration plan under Subdivision B of Division 2 of Part 33. 9 Section 7 Insert: final functional separation undertaking means a final functional separation undertaking under Division 2 of Part 9 of Schedule 1. 10 Section 7 Insert: final migration plan means a final migration plan under Subdivision B of Division 2 of Part 33. 11 Section 7 Insert: hybrid fibre‑coaxial network means a telecommunications network: (a) that is for use for the transmission of any broadcasting service; and (b) that is also capable of being used to supply an internet carriage service; and (c) the line component of which consists of optical fibre to connecting nodes, supplemented by coaxial cable connections from the nodes to the premises of end‑users. 12 Section 7 Insert: internet carriage service means a carriage service that enables end‑users to access the internet. 13 Section 7 Insert: radiocommunications device has the same meaning as in the Radiocommunications Act 1992. 14 Section 7 Insert: spectrum has the same meaning as in the Radiocommunications Act 1992. 15 Section 7 Insert: spectrum licence has the same meaning as in the Radiocommunications Act 1992. 16 Section 7 Insert: subscription television broadcasting licence has the same meaning as in the Broadcasting Services Act 1992. 17 After subsection 69(5) Insert: (5A) 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 577AD, 577CD or 577ED. Note: Sections 577AD, 577CD and 577ED deal with undertakings given by Telstra. 18 Before subsection 69(7) Insert: (6B) Subsection (1) does not apply to the condition set out in clause 84 of Schedule 1. Note: Clause 84 of Schedule 1 deals with control by Telstra of certain spectrum licences. 19 After subsection 70(2) Insert: (2A) 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 577AD, 577CD or 577ED. Note: Sections 577AD, 577CD and 577ED deal with undertakings given by Telstra. 20 After paragraph 70(5)(a) Insert: (aa) the condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED; 21 Before subsection 70(4) Insert: (3B) Subsection (1) does not apply to the condition set out in clause 84 of Schedule 1. Note: Clause 84 of Schedule 1 deals with control by Telstra of certain spectrum licences. 22 After paragraph 564(3)(a) Insert: (aa) the carrier licence condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED; or 23 Subsection 564(3) (after note 1) Insert: Note 1A: Sections 577AD, 577CD and 577ED deal with undertakings given by Telstra. 24 After paragraph 564(3)(b) Insert: (ba) the carrier licence condition set out in clause 84 of Schedule 1; or 25 Subsection 564(3) (after note 2) Insert: Note 2A: Clause 84 of Schedule 1 deals with control by Telstra of certain spectrum licences. 26 After paragraph 571(3)(a) Insert: (aa) the carrier licence condition set out in Part 1 of Schedule 1 in so far as that condition relates to section 577AD, 577CD or 577ED; or 27 Subsection 571(3) (after note 1) Insert: Note 1A: Sections 577AD, 577CD and 577ED deal with undertakings given by Telstra. 28 After paragraph 571(3)(b) Insert: (ba) the carrier licence condition set out in clause 84 of Schedule 1; or 29 Subsection 571(3) (after note 2) Insert: Note 2A: Clause 84 of Schedule 1 deals with control by Telstra of certain spectrum licences. 30 After Part 32 Insert: Part 33—Voluntary undertakings given by Telstra Division 1—Introduction 577 Simplified outline The following is a simplified outline of this Part: • Telstra may give the following undertakings: (a) an undertaking about structural separation; (b) an undertaking about hybrid fibre‑coaxial networks; (c) an undertaking about subscription television broadcasting licences. • An undertaking comes into force when it is accepted by the ACCC. • The Minister may, by legislative instrument, determine that the excluded spectrum regime applies to Telstra. If the Minister does so, Telstra will not be allowed to supply services using a designated part of the spectrum unless all 3 undertakings given by Telstra are in force. • However, the Minister may exempt Telstra from the requirement to have an undertaking about hybrid fibre‑coaxial networks or subscription television broadcasting licences if the Minister is satisfied that Telstra's undertaking about structural separation is sufficient to address concerns about the degree of Telstra's power in telecommunications markets. Division 2—Structural separation Subdivision A—Undertaking about structural separation 577A Acceptance of undertaking about structural separation (1) The ACCC may accept a written undertaking given by Telstra that: (a) at all times after the designated day: (i) Telstra will not supply fixed‑line carriage services to retail customers in Australia using a telecommunications network over which Telstra is in a position to exercise control; and (ii) Telstra will not be in a position to exercise control of a company that supplies fixed‑line carriage services to retail customers in Australia using a telecommunications network over which Telstra is in a position to exercise control; and (b) Telstra will, in connection with paragraph (a), take specified action and/or refrain from taking specified action. Note 1: For when Telstra is in a position to exercise control of a network, see section 577Q. Note 2: For control of a company, see section 577P. Transparency and equivalence (2) For the purposes of paragraph (1)(b), a matter relating to transparency and equivalence in relation to the supply by Telstra of regulated services to: (a) Telstra's wholesale customers; and (b) Telstra's retail business units; during the period: (c) beginning when the undertaking comes into force; and (d) ending at the start of the designated day; is taken to be a matter that is in connection with paragraph (1)(a). (3) The ACCC must not accept an undertaking under this section unless the ACCC is satisfied that: (a) the undertaking provides for transparency and equivalence in relation to the supply by Telstra of regulated services to: (i) Telstra's wholesale customers; and (ii) Telstra's retail business units; during the period: (iii) beginning when the undertaking comes into force; and (iv) ending at the start of the designated day; and (b) the undertaking does so in an appropriate and effective manner. (4) In subsections (2) and (3), equivalence, supply, regulated service and retail business unit have the same meaning as in Part 9 of Schedule 1. Monitoring of compliance (5) The ACCC must not accept an undertaking under this section unless the ACCC is satisfied that: (a) the undertaking provides for: (i) the ACCC to monitor Telstra's compliance with the undertaking; and (ii) Telstra to have systems, procedures and processes that promote and facilitate the ACCC's monitoring of Telstra's compliance with the undertaking; and (b) the undertaking does so in an appropriate and effective manner. Matters to which ACCC must have regard (6) In deciding whether to accept an undertaking under this section, the ACCC must have regard to: (a) the matters set out in an instrument in force under subsection (7); and (aa) the national interest in structural reform of the telecommunications industry; and (ab) the impact of that structural reform on: (i) consumers; and (ii) competition in telecommunications markets; and (b) such other matters (if any) as the ACCC considers relevant. (7) The Minister may, by writing, set out matters for the purposes of paragraph (6)(a). (7A) Before making or varying an instrument under subsection (7), the Minister must: (a) cause to be published on the Department's website a notice: (i) setting out the draft instrument or variation; and (ii) inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and (b) consider any submissions received within the 14‑day period mentioned in paragraph (a). (8) The Minister must take all reasonable steps to ensure that an instrument comes into force under subsection (7) as soon as practicable after the commencement of this section. (9) Telstra is not entitled to give an undertaking under this section unless an instrument is in force under subsection (7). Designated day (10) For the purposes of this section, the designated day is: (a) 1 July 2018; or (b) if the Minister, by written instrument, specifies another day—that other day. (11) Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Minister by paragraph (10)(b), but it applies with the following changes: (a) an instrument made under paragraph (10)(b) cannot be varied; (b) an instrument made under paragraph (10)(b) must not be revoked unless: (i) a fresh instrument is made under that paragraph; and (ii) the fresh instrument specifies a day that is later than the day specified in the revoked instrument. (12) If: (a) the ACCC has accepted an undertaking given by Telstra under subsection (1); and (b) when the undertaking was accepted, a particular day (the relevant day) was the designated day; the Minister must not make an instrument under paragraph (10)(b) specifying a day earlier than the relevant day. (13) Telstra may, before the designated day, request the Minister to: (a) if no instrument is in force under paragraph (10)(b)—make an instrument under that paragraph specifying a particular day; or (b) if an instrument is in force under paragraph (10)(b): (i) revoke that instrument; and (ii) make a fresh instrument under that paragraph specifying a particular day that is later than the day specified in the revoked instrument. (14) If Telstra gives the Minister a request under subsection (13), the Minister must consider the request. (15) However, the Minister is not required to consider the request if the Minister is satisfied that the request: (a) is frivolous or vexatious; or (b) was not made in good faith. General provisions (16) An undertaking under this section must be expressed to be an undertaking under this section. (17) An undertaking under this section may not be withdrawn after it has been accepted by the ACCC. (18) If an undertaking under this section provides for the ACCC to perform functions or exercise powers in relation to the undertaking, the ACCC may perform those functions, and exercise those powers, in accordance with the undertaking. (19) Part 9 of Schedule 1 does not, by implication, limit the matters that may be included in an undertaking under this section. Note: Part 9 of Schedule 1 deals with the functional separation of Telstra. Exemptions (20) The Minister may, by legislative instrument, exempt a specified fixed‑line carriage service from the scope of subsection (1) and the associated provisions, either: (a) unconditionally; or (b) subject to such conditions or limitations as are specified in the instrument. (21) The Minister may, by legislative instrument, exempt a specified telecommunications network from the scope of subsection (1) and the associated provisions, either: (a) unconditionally; or (b) subject to such conditions or limitations as are specified in the instrument. (22) The Minister must cause a copy of an instrument under subsection (7) or paragraph (10)(b) to be published on the Department's website. (23) An instrument under subsection (7) or paragraph (10)(b) is not a legislative instrument. Definitions (24) In this section: associated provision means: (a) subsection 577BA(11); or (b) subsection 577BC(2). fixed‑line carriage service means: (a) a carriage service that is supplied using a line to premises occupied or used by an end‑user; or (b) a service that facilitates the supply of a carriage service covered by paragraph (a). telecommunications market has the same meaning as in Part XIB of the Competition and Consumer Act 2010. 577AA Acceptance of undertaking about structural separation may be subject to the occurrence of events (1) If: (a) Telstra has, in a document accompanying an undertaking under section 577A, nominated one or more events; and (b) the nomination is expressed to be a nomination under this subsection; and (c) each of those events is: (i) the passage of a resolution covered by subparagraph 411(4)(a)(ii) of the Corporations Act 2001; or (ii) an approval covered by paragraph 411(4)(b) of that Act; or (iii) the passage of a resolution, where Telstra's members (within the meaning of that Act) were entitled to vote on the resolution; or (iv) an approval covered by Chapter 11 of the ASX Listing Rules; or (v) the granting of a waiver under rule 18.1 of the ASX Listing Rules; or (vi) the approval of a draft migration plan by the ACCC under section 577BDA or 577BDC; or (vii) the making of a declaration under subsection 577J(3); or (viii) the making of a declaration under subsection 577J(5); or (ix) an event specified in an instrument in force under subsection (3); and (d) the ACCC decides to accept the undertaking; the decision to accept the undertaking must be expressed to be subject to the occurrence of those events within a specified period after the undertaking is accepted. (2) A nomination under subsection (1) must not specify an event by reference to the timing of the event. (3) The Minister may, by writing, specify events for the purposes of subparagraph (1)(c)(ix). (4) A period specified by the ACCC under subsection (1) must be: (a) 6 months; or (b) if another period is specified in an instrument under subsection (5)—that period. (5) The Minister may, by writing, specify a period for the purposes of paragraph (4)(b). Notification requirement (6) If: (a) a decision to accept an undertaking under section 577A is expressed to be subject to the occurrence of one or more specified events within a specified period; and (b) such an event occurs within that period; Telstra must notify the ACCC in writing of the occurrence of the event as soon as practicable after the occurrence. (6A) Subsection (6) does not apply to an event mentioned in subparagraph (1)(c)(vi). If event does not occur (7) If: (a) a decision to accept an undertaking under section 577A is expressed to be subject to the occurrence of a single specified event within a specified period; and (b) the event does not occur within that period; this Act (other than subclause 76(4) of Schedule 1) has effect as if the undertaking had never been accepted by the ACCC. (8) If: (a) a decision to accept an undertaking under section 577A is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and (b) one or more of those events do not occur within that period; this Act (other than subclause 76(4) of Schedule 1) has effect as if the undertaking had never been accepted by the ACCC. Publication requirement (9) The Minister must cause a copy of an instrument under subsection (3) or (5) to be published on the Department's website. Instruments are not legislative instruments (10) An instrument under subsection (3) or (5) is not a legislative instrument. 577AB When undertaking about structural separation comes into force An undertaking under section 577A comes into force: (a) if: (i) the decision to accept the undertaking is expressed to be subject to the occurrence of a single specified event within a specified period; and (ii) the event occurs within that period; when the event occurs; or (b) if: (i) the decision to accept the undertaking is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and (ii) each of those events occur at the same time; and (iii) that time occurs within that period; at that time; or (c) if: (i) the decision to accept the undertaking is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and (ii) each of those events occur at different times; and (iii) each of those times occur within that period; at the last of those times; or (d) if the decision to accept the undertaking is not expressed to be subject to the occurrence of one or more specified events within a specified period—when the undertaking is accepted by the ACCC. 577AC Publication requirements for undertaking about structural separation (1) If a decision to accept an undertaking under section 577A is expressed to be subject to the occurrence of one or more specified events within a specified period, the ACCC must: (a) as soon as practicable after making the decision, publish on its website: (i) the undertaking; and (ii) the terms of the decision; and (b) as soon as practicable after the ACCC becomes aware that the undertaking has come into force, publish on its website a notice announcing that the undertaking has come into force. (2) If a decision to accept an undertaking under section 577A is not expressed to be subject to the occurrence of one or more specified events within a specified period, the ACCC must, as soon as practicable after accepting the undertaking, publish the undertaking on its website. 577AD Compliance with undertaking about structural separation If an undertaking given by Telstra is in force under section 577A, Telstra must comply with the undertaking. 577B Variation of undertaking about structural separation (1) This section applies if an undertaking given by Telstra is in force under section 577A. (2) Telstra may give the ACCC a variation of the undertaking, in so far as the undertaking: (a) is covered by paragraph 577A(1)(b); and (b) does not consist of provisions of a final migration plan. Note: For variation of a final migration plan, see section 577BF. (3) After considering the variation, the ACCC must decide to: (a) accept the variation; or (b) reject the variation. (4) In deciding whether to accept the variation, the ACCC must have regard to: (a) the matters (if any) set out in an instrument in force under subsection (5); and (b) such other matters (if any) as the ACCC considers relevant. (5) The Minister may, by writing, set out matters for the purposes of paragraph (4)(a). (5A) Before making or varying an instrument under subsection (5), the Minister must: (a) cause to be published on the Department's website a notice: (i) setting out the draft instrument or variation; and (ii) inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and (b) consider any submissions received within the 14‑day period mentioned in paragraph (a). (6) The variation takes effect when it is accepted by the ACCC. (7) As soon as practicable after the variation takes effect, the ACCC must publish the variation on its website. (8) The Minister must cause a copy of an instrument under subsection (5) to be published on the Department's website. (9) An instrument under subsection (5) is not a legislative instrument. 577BA Authorised conduct—subsection 51(1) of the Competition and Consumer Act 2010 Object (1) The object of this section is to promote the national interest in structural reform of the telecommunications industry by authorising, for the purposes of subsection 51(1) of the Competition and Consumer Act 2010, certain conduct engaged in by: (a) Telstra; and (b) NBN corporations; and (c) certain other persons. Note: If conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010, the conduct is disregarded in deciding whether a person has contravened Part IV of that Act. Authorised conduct (2) The giving by Telstra of: (a) an undertaking under section 577A; or (b) a variation of an undertaking in force under section 577A; or (c) a draft migration plan in accordance with an undertaking in force under section 577A; or (d) a variation of a final migration plan; is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010. (3) If: (a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and (b) when the contract, arrangement or understanding is entered into, no undertaking is in force under section 577A; and (c) the operative provisions of the contract, arrangement or understanding are subject to a condition precedent, namely, the coming into force of an undertaking under section 577A; then: (d) the entering into of the contract, arrangement or understanding by Telstra is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and (e) the entering into of the contract, arrangement or understanding by the NBN corporation is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and (f) if: (i) the undertaking under section 577A comes into force; and (ii) if the contract, arrangement or understanding was in writing—before the undertaking was accepted by the ACCC, Telstra or the NBN corporation gave the ACCC a copy of the contract, arrangement or understanding; and (iii) if the contract, arrangement or understanding was not in writing—before the undertaking was accepted by the ACCC, the contract, arrangement or understanding was reduced to writing and Telstra or the NBN corporation gave the ACCC a copy of the contract, arrangement or understanding; then: (iv) conduct engaged in by Telstra or the NBN corporation after the undertaking comes into force in order to give effect to a provision of the contract, arrangement or understanding is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010; and (v) conduct engaged in by another NBN corporation after the undertaking comes into force in order to facilitate the first‑mentioned NBN corporation giving effect to a provision of the contract, arrangement or understanding is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010. (4) If: (a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and (b) the contract, arrangement or understanding contains a migration provision; and (c) when the contract, arrangement or understanding is entered into, no undertaking is in force under section 577A; then: (d) the entering into of the contract, arrangement or understanding by Telstra is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010, to the extent to which the contract, arrangement or understanding contains the migration provision; and (e) the entering into of the contract, arrangement or understanding by the NBN corporation is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010, to the extent to which the contract, arrangement or understanding contains the migration provision. (5) If: (a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and (b) the contract, arrangement or understanding contains a migration provision; and (c) Telstra or the NBN corporation engages in conduct in order to give effect to the migration provision; and (d) when the conduct is engaged in, no undertaking is in force under section 577A; the conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010 unless, before the conduct was engaged in: (e) the ACCC refused to accept the most recent undertaking given by Telstra under section 577A; or (f) as a result of subsection 577AA(7) or (8), this Act (other than subclause 76(4) of Schedule 1) had effect as if the most recent undertaking given by Telstra under section 577A had never been accepted by the ACCC; or (g) a final functional separation undertaking came into force. (6) If Telstra is required to engage in conduct in order to comply with an undertaking in force under section 577A, the conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010. (7) If: (a) a person directly or indirectly acquires an asset from Telstra; and (b) the disposal of the asset by Telstra is required for the compliance by Telstra with an undertaking in force under section 577A; and (c) the person is identified in the undertaking as the person by whom the asset is to be directly or indirectly acquired; the acquisition of the asset is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010. (8) If: (a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and (b) Telstra enters into the contract, arrangement or understanding in order to comply with an undertaking in force under section 577A; then: (c) the entering into of the contract, arrangement or understanding by Telstra; and (d) the entering into of the contract, arrangement or understanding by the NBN corporation; and (e) conduct engaged in by Telstra or the NBN corporation in order to give effect to a provision of the contract, arrangement or understanding; and (f) conduct engaged in by another NBN corporation in order to facilitate the first‑mentioned NBN corporation giving effect to a provision of the contract, arrangement or understanding; is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010. (9) If: (a) an undertaking given by Telstra is in force under section 577A; and (b) Telstra enters into a contract, arrangement or understanding with an NBN corporation; the Minister may, by legislative instrument, determine that subsection (8) applies, and is taken to have always applied, as if Telstra had entered into the contract, arrangement or understanding in order to comply with the undertaking. (10) If: (a) a final migration plan is in force; and (b) the final migration plan sets out a method for determining a timetable for the taking of the action specified in the plan in accordance with paragraph 577BC(2)(a); and (c) Telstra or an NBN corporation engages in conduct for the purposes of determining the timetable; and (d) the conduct is consistent with the method; the conduct is authorised for the purposes of subsection 51(1) of the Competition and Consumer Act 2010. Migration provisions (11) If: (a) Telstra enters into a contract, arrangement or understanding with an NBN corporation; and (b) the contract, arrangement or understanding contains one or more provisions for: (i) Telstra to cease to supply fixed‑line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; or (ii) Telstra to cease to supply one or more types of fixed‑line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; or (iii) Telstra to cease to supply, in particular circumstances, one or more types of fixed‑line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; or (iv) Telstra to commence to supply fixed‑line carriage services to customers using the national broadband network; then: (c) each of the provisions mentioned in paragraph (b) is a migration provision; and (d) if the contract, arrangement or understanding contains one or more provisions for Telstra to supply services to an NBN corporation in connection with any or all of the matters mentioned in paragraph (b)—each of those provisions is a migration provision; and (e) if the contract, arrangement or understanding contains one or more provisions for an NBN corporation to supply services to Telstra in connection with any or all of the matters mentioned in paragraph (b)—each of those provisions is a migration provision; and (f) if the contract, arrangement or understanding contains one or more provisions for Telstra to give information to an NBN corporation in connection with any or all of the matters mentioned in paragraph (b)—each of those provisions is a migration provision; and (g) if the contract, arrangement or understanding contains one or more provisions for an NBN corporation to give information to Telstra in connection with any or all of the matters mentioned in paragraph (b)—each of those provisions is a migration provision. Definitions (12) In this section: asset means: (a) any legal or equitable estate or interest in real or personal property, including a contingent or prospective one; and (b) any right, privilege or immunity, including a contingent or prospective one. enter into: (a) when used in relation to an arrangement—includes make; or (b) when used in relation to an understanding—includes arrive at or reach. fixed‑line carriage service means: (a) a carriage service that is supplied using a line to premises occupied or used by an end‑user; or (b) a service that facilitates the supply of a carriage service covered by paragraph (a). give effect to, in relation to a provision of a contract, arrangement or understanding, has the same meaning as in the Competition and Consumer Act 2010. migration provision has the meaning given by subsection (11). national broadband network means a telecommunications network for the high‑speed carriage of communications, where an NBN corporation has been, is, or is to be, involved in the creation or development of the network. NBN Co means NBN Co Limited (ACN 136 533 741), as the company exists from time to time (even if its name is later changed). NBN corporation means: (a) NBN Co; or (b) NBN Tasmania; or (c) a company that is a related body corporate of NBN Co. NBN Tasmania means NBN Tasmania Limited (ACN 138 338 271), as the company exists from time to time (even if its name is later changed). related body corporate has the same meaning as in the Corporations Act 2001. Subdivision B—Migration plan 577BB Migration plan principles (1) The Minister may, by writing, determine that specified principles are migration plan principles for the purposes of this Act. Note: For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901. Consultation (2) Before making or varying a determination under subsection (1), the Minister must: (a) cause to be published on the Department's website a notice: (i) setting out the draft determination or variation; and (ii) inviting persons to make submissions to the Minister about the draft determination or variation within 14 days after the notice is published; and (b) consider any submissions received within the 14‑day period mentioned in paragraph (a). Publication requirement (3) The Minister must cause a copy of a determination under subsection (1) to be published on the Department's website. Determination is not a legislative instrument (4) A determination under subsection (1) is not a legislative instrument. 577BC Migration plan (1) The specified action first mentioned in paragraph 577A(1)(b) may include giving the ACCC a draft migration plan after the relevant undertaking has come into force. (2) A draft or final migration plan must: (a) specify the action to be taken by Telstra to: (i) cease to supply fixed‑line carriage services to customers using a telecommunications network over which Telstra is in a position to exercise control; and (ii) commence to supply fixed‑line carriage services to customers using the national broadband network; and (b) either: (i) set out a timetable for the taking of that action; or (ii) set out a method for determining a timetable for the taking of that action. (3) A draft or final migration plan may contain provisions dealing with such other matters (if any) as are specified in a written instrument made by the Minister. (4) A draft or final migration plan must not contain provisions dealing with such matters (if any) as are specified in a written instrument made by the Minister. Migration plan principles (5) A draft migration plan must not be given to the ACCC unless a determination is in force under subsection 577BB(1). Publication requirement (6) The Minister must cause a copy of an instrument under subsection (3) or (4) to be published on the Department's website. Instrument is not a legislative instrument (7) An instrument under subsection (3) or (4) is not a legislative instrument. Definitions (8) In this section: fixed‑line carriage service means: (a) a carriage service that is supplied using a line to premises occupied or used by an end‑user; or (b) a service that facilitates the supply of a carriage service covered by paragraph (a). national broadband network means a telecommunications network for the high‑speed carriage of communications, where an NBN corporation has been, is, or is to be, involved in the creation or development of the network. NBN Co means NBN Co Limited (ACN 136 533 741), as the company exists from time to time (even if its name is later changed). NBN corporation means: (a) NBN Co; or (b) NBN Tasmania; or (c) a company that is a related body corporate of NBN Co. NBN Tasmania means NBN Tasmania Limited (ACN 138 338 271), as the company exists from time to time (even if its name is later changed). related body corporate has the same meaning as in the Corporations Act 2001. 577BD Approval of draft migration plan by the ACCC—plan given after undertaking about structural separation comes into force Scope (1) This section applies if Telstra gives the ACCC a draft migration plan (the original plan) in accordance with an undertaking in force under section 577A. Decision (2) The ACCC must: (a) if the ACCC is satisfied that the original plan complies with the migration plan principles—approve the original plan; or (b) otherwise: (i) refuse to approve the original plan; and (ii) by written notice given to Telstra, direct Telstra to give the ACCC, within 30 days after the notice is given, a replacement draft migration plan that complies with the migration plan principles. Note: For migration plan principles, see section 577BB. Consultation (3) Before making a decision under subsection (2), the ACCC must: (a) cause to be published on the ACCC's website a notice: (i) setting out the original plan; and (ii) inviting persons to make submissions to the ACCC about the original plan within 28 days after the notice is published; and (b) cause to be published on the ACCC's website a copy of each submission received within the 28‑day period mentioned in paragraph (a); and (c) consider any submissions received within the 28‑day period mentioned in paragraph (a). Compliance with direction (4) Telstra must comply with a direction under subparagraph (2)(b)(ii). Note: The ACCC will make a decision about the plan under section 577BDB. Replacement plan to be treated as if it had been given in accordance with the undertaking (5) A draft migration plan given by Telstra in compliance with a direction under subparagraph (2)(b)(ii) is taken, for the purposes of this Act (other than this section and section 577BDB), to be given in accordance with the undertaking. Notification of decision (6) As soon as practicable after making a decision under subsection (2), the ACCC must notify Telstra in writing of the decision. 577BDA Approval of draft migration plan by the ACCC—plan given before undertaking about structural separation comes into force (1) If: (a) Telstra gives the ACCC an undertaking under section 577A; and (b) the specified action first mentioned in paragraph 577A(1)(b) consists of, or includes, giving the ACCC a draft migration plan after the undertaking has come into force; and (c) the following conditions are satisfied: (i) Telstra has, in a document accompanying the undertaking, nominated the event mentioned in subparagraph 577AA(1)(c)(vi); (ii) the nomination meets the requirements of paragraph 577AA(1)(b) and subsection 577AA(2); Telstra may give the ACCC a draft migration plan (the original plan) during the period: (d) beginning when Telstra gives the ACCC the undertaking; and (e) ending when the undertaking comes into force; as if the undertaking had come into force. Decision (2) The ACCC must: (a) if the ACCC is satisfied that the original plan complies with the migration plan principles—approve the original plan; or (b) otherwise: (i) refuse to approve the original plan; and (ii) by written notice given to Telstra, request Telstra to give the ACCC, within 30 days after the notice is given, a replacement draft migration plan that complies with the migration plan principles. Note 1: For migration plan principles, see section 577BB. Note 2: If Telstra gives the ACCC a replacement draft migration plan in response to the request, the ACCC will make a decision about the plan under section 577BDC. (3) The ACCC must not make a decision under subsection (2) before it accepts the undertaking. (4) After the undertaking comes into force, this Act (other than section 577BD and this section) has effect as if the original plan had been given to the ACCC in accordance with the undertaking. Consultation (5) Before making a decision under subsection (2), the ACCC must: (a) cause to be published on the ACCC's website a notice: (i) setting out the original plan; and (ii) inviting persons to make submissions to the ACCC about the original plan within 28 days after the notice is published; and (b) cause to be published on the ACCC's website a copy of each submission received within the 28‑day period mentioned in paragraph (a); and (c) consider any submissions received within the 28‑day period mentioned in paragraph (a). Replacement plan to be treated as if it had been given in accordance with the undertaking (6) A draft migration plan given by Telstra in response to a request under subparagraph (2)(b)(ii) is taken, for the purposes of this Act (other than sections 577BD, 577BDB and 577BDC and this section), to be given in accordance with the undertaking. Notification of decision (7) As soon as practicable after making a decision under subsection (2), the ACCC must notify Telstra in writing of the decision. 577BDB Approval of draft migration plan by the ACCC—plan given in compliance with a direction Scope (1) This section applies if: (a) Telstra has given the ACCC an undertaking under section 577A; and (b) Telstra gives the ACCC a draft migration plan (the original plan) in compliance with a direction under: (i) subparagraph 577BD(2)(b)(ii); or (ii) subparagraph (2)(b)(ii) of this section. Decision (2) The ACCC must: (a) if the ACCC is satisfied that the original plan complies with the migration plan principles—approve the original plan; or (b) otherwise: (i) refuse to approve the original plan; and (ii) by written notice given to Telstra, direct Telstra to give the ACCC, within 30 days after the notice is given, a replacement draft migration plan that complies with the migration plan principles. Note: For migration plan principles, see section 577BB. Consultation (3) Before making a decision under subsection (2), the ACCC must: (a) cause to be published on the ACCC's website a notice: (i) setting out the original plan; and (ii) inviting persons to make submissions to the ACCC about the original plan within 28 days after the notice is published; and (b) cause to be published on the ACCC's website a copy of each submission received within the 28‑day period mentioned in paragraph (a); and (c) consider any submissions received within the 28‑day period mentioned in paragraph (a). Compliance with direction (4) Telstra must comply with a direction under subparagraph (2)(b)(ii). Note: The ACCC will make a decision about the plan under subsection (2). Replacement plan to be treated as if it had been given in accordance with the undertaking (5) A draft migration plan given by Telstra in compliance with a direction under subparagraph (2)(b)(ii) is taken, for the purposes of this Act (other than sections 577BD, 577BDA and 577BDC and this section), to be given in accordance with the undertaking. Notification of decision (6) As soon as practicable after making a decision under subsection (2), the ACCC must notify Telstra in writing of the decision. 577BDC Approval of draft migration plan by the ACCC—plan given in response to a request Scope (1) This section applies if: (a) Telstra gives the ACCC an undertaking under section 577A; and (b) Telstra gives the ACCC a draft migration plan (the original plan) in response to a request under: (i) subparagraph 577BDA(2)(b)(ii); or (ii) subparagraph (2)(b)(ii) of this section. Decision (2) The ACCC must: (a) if the ACCC is satisfied that the original plan complies with the migration plan principles—approve the original plan; or (b) otherwise: (i) refuse to approve the original plan; and (ii) by written notice given to Telstra, request Telstra to give the ACCC, within 30 days after the notice is given, a replacement draft migration plan that complies with the migration plan principles. Note 1: For migration plan principles, see section 577BB. Note 2: If Telstra gives the ACCC a replacement draft migration plan in response to the request, the ACCC will make a decision about the plan under this section. Consultation (3) Before making a decision under subsection (2), the ACCC must: (a) cause to be published on the ACCC's website a notice: (i) setting out the original plan; and (ii) inviting persons to make submissions to the ACCC about the original plan within 28 days after the notice is published; and (b) cause to be published on the ACCC's website a copy of each submission received within the 28‑day period mentioned in paragraph (a); and (c) consider any submissions received within the 28‑day period mentioned in paragraph (a). Plan to be treated as if it had been given in accordance with the undertaking (4) A draft migration plan given by Telstra in response to a request under subparagraph (2)(b)(ii) is taken, for the purposes of this Act (other than sections 577BD, 577BDA and 577BDB and this section), to be given in accordance with the undertaking. Notification of decision (5) As soon as practicable after making a decision under subsection (2), the ACCC must notify Telstra in writing of the decision. 577BE Effect of approval of draft migration plan (1) If the ACCC approves a draft migration plan, the plan becomes a final migration plan. (2) If the ACCC approves a draft migration plan under subsection 577BD(2), the plan comes into force at the start of the day after notice of the decision to approve the plan is given to Telstra in accordance with subsection 577BD(6). (3) If the ACCC approves a draft migration plan under subsection 577BDA(2), 577BDB(2) or 577BDC(2), the plan comes into force at the later of: (a) the start of the day after notice of the decision to approve the plan is given to Telstra in accordance with subsection 577BDA(7), 577BDB(6) or 577BDC(5), as the case requires; or (b) when the relevant undertaking under section 577A comes into force. (4) A final migration plan may not be withdrawn. (5) When a final migration plan comes into force, the relevant undertaking under section 577A has effect as if the provisions of the plan were provisions of the undertaking. Publication requirement (6) As soon as practicable after a final migration plan comes into force, the ACCC must publish a copy of the plan on the ACCC's website. ACCC's functions and powers (7) If a final migration plan provides for the ACCC to perform functions or exercise powers in relation to the plan, the ACCC may perform those functions, and exercise those powers, in accordance with the plan. Plan is not a legislative instrument (8) A final migration plan is not a legislative instrument. 577BF Variation of final migration plan (1) This section applies if a final migration plan is in force. (2) Telstra may give the ACCC a variation of the final migration plan. (3) The ACCC must: (a) if the ACCC is satisfied that the final migration plan as varied complies with the migration plan principles—approve the variation; or (b) otherwise—refuse to approve the variation. Consultation (4) Before making a decision under subsection (3), the ACCC must: (a) cause to be published on the ACCC's website a notice: (i) setting out the variation; and (ii) inviting persons to make submissions to the ACCC about the variation within 28 days after the notice is published; and (b) cause to be published on the ACCC's website a copy of each submission received within the 28‑day period mentioned in paragraph (a); and (c) consider any submissions received within the 28‑day period mentioned in paragraph (a). (5) Subsection (4) does not apply to a variation if the variation is of a minor nature. When variation takes effect (6) The variation takes effect when it is approved by the ACCC. (7) When the variation takes effect, the relevant undertaking under section 577A has effect as if the provisions of the final migration plan as varied were provisions of the undertaking. (8) As soon as practicable after the variation takes effect, the ACCC must publish a copy of the variation on the ACCC's website. Division 3—Hybrid fibre‑coaxial networks 577C Acceptance of undertaking about hybrid fibre‑coaxial networks (1) The ACCC may accept a written undertaking given by Telstra that: (a) at all times after the end of the period specified in the undertaking, Telstra will not be in a position to exercise control of a hybrid fibre‑coaxial network in Australia; and (b) Telstra will, in connection with paragraph (a), take specified action and/or refrain from taking specified action. Note: For when Telstra is in a position to exercise control of a network, see section 577Q. (1A) In deciding whether to accept an undertaking under subsection (1), the ACCC must have regard to: (a) the matters (if any) set out in an instrument in force under subsection (1B); and (b) such other matters (if any) as the ACCC considers relevant. (1B) The Minister may, by writing, set out matters for the purposes of paragraph (1A)(a). (1C) Before making or varying an instrument under subsection (1B), the Minister must: (a) cause to be published on the Department's website a notice: (i) setting out the draft instrument or variation; and (ii) inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and (b) consider any submissions received within the 14‑day period mentioned in paragraph (a). (2) The period specified in the undertaking as mentioned in paragraph (1)(a) must not be longer than 12 months. (3) The undertaking must be expressed to be an undertaking under this section. (4) The undertaking may not be withdrawn after it has been accepted by the ACCC. (5) 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. (6) The Minister must cause a copy of an instrument under subsection (1B) to be published on the Department's website. (7) An instrument under subsection (1B) is not a legislative instrument. 577CA Acceptance of undertaking about hybrid fibre‑coaxial networks may be subject to the occurrence of events (1) If: (a) Telstra has, in a document accompanying an undertaking under section 577C, nominated one or more events; and (b) the nomination is expressed to be a nomination under this subsection; and (c) each of those events is: (i) the passage of a resolution covered by subparagraph 411(4)(a)(ii) of the Corporations Act 2001; or (ii) an approval covered by paragraph 411(4)(b) of that Act; or (iii) the passage of a resolution, where Telstra's members (within the meaning of that Act) were entitled to vote on the resolution; or (iv) an approval covered by Chapter 11 of the ASX Listing Rules; or (v) the granting of a waiver under rule 18.1 of the ASX Listing Rules; or (vi) the making of a declaration under subsection 577J(5); or (vii) an event specified in an instrument in force under subsection (3); and (d) the ACCC decides to accept the undertaking; the decision to accept the undertaking must be expressed to be subject to the occurrence of those events within a specified period after the undertaking is accepted. (2) A nomination under subsection (1) must not specify an event by reference to the timing of the event. (3) The Minister may, by writing, specify events for the purposes of subparagraph (1)(c)(vii). (4) A period specified by the ACCC under subsection (1) must be: (a) 6 months; or (b) if another period is specified in an instrument under subsection (5)—that period. (5) The Minister may, by writing, specify a period for the purposes of paragraph (4)(b). Notification requirement (6) If: (a) a decision to accept an undertaking under section 577C is expressed to be subject to the occurrence of one or more specified events within a specified period; and (b) such an event occurs within that period; Telstra must notify the ACCC in writing of the occurrence of the event as soon as practicable after the occurrence. If event does not occur (7) If: (a) a decision to accept an undertaking under section 577C is expressed to be subject to the occurrence of a single specified event within a specified period; and (b) the event does not occur within that period; this Act has effect as if the undertaking had never been accepted by the ACCC. (8) If: (a) a decision to accept an undertaking under section 577C is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and (b) one or more of those events do not occur within that period; this Act has effect as if the undertaking had never been accepted by the ACCC. Publication requirement (9) The Minister must cause a copy of an instrument under subsection (3) or (5) to be published on the Department's website. Instruments are not legislative instruments (10) An instrument under subsection (3) or (5) is not a legislative instrument. 577CB When undertaking about hybrid fibre‑coaxial networks comes into force An undertaking under section 577C comes into force: (a) if: (i) the decision to accept the undertaking is expressed to be subject to the occurrence of a single specified event within a specified period; and (ii) the event occurs within that period; when the event occurs; or (b) if: (i) the decision to accept the undertaking is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and (ii) each of those events occur at the same time; and (iii) that time occurs within that period; at that time; or (c) if: (i) the decision to accept the undertaking is expressed to be subject to the occurrence of 2 or more specified events within a specified period; and (ii) each of those events occur at different times; and (iii) each of those times occur within that period; at the last of those times; or (d) if the decision to accept the undertaking is not expressed to be subject to the occurrence of one or more specified events within a specified period—when the undertaking is accepted by the ACCC. 577CC Publication requirements for undertaking about hybrid fibre‑coaxial networks (1) If a decision to accept an undertaking under section 577C is expressed to be subject to the occurrence of one or more specified events within a specified period, the ACCC must: (a) as soon as practicable after making the decision, publish on its website: (i) the undertaking; and (ii) the terms of the decision; and (b) as soon as practicable after the ACCC becomes aware that the undertaking has come into force, publish on its website a notice announcing that the undertaking has come into force. (2) If a decision to accept an undertaking under section 577C is not expressed to be subject to the occurrence of one or more specified events within a specified period, the ACCC must, as soon as practicable after accepting the undertaking, publish the undertaking on its website. 577CD Compliance with undertaking about hybrid fibre‑coaxial networks If an undertaking given by Telstra is in force under section 577C, Telstra must comply with the undertaking. 577D Variation of undertaking about hybrid fibre‑coaxial networks (1) This section applies if an undertaking given by Telstra is in force under section 577C. (2) Telstra may give the ACCC a variation of the undertaking in so far as the undertaking is covered by paragraph 577C(1)(b). (3) After considering the variation, the ACCC must decide to: (a) accept the variation; or (b) reject the variation. (3A) In deciding whether to accept the variation, the ACCC must have regard to: (a) the matters (if any) set out in an instrument in force under subsection (3B); and (b) such other matters (if any) as the ACCC considers relevant. (3B) The Minister may, by writing, set out matters for the purposes of paragraph (3A)(a). (3C) Before making or varying an instrument under subsection (3B), the Minister must: (a) cause to be published on the Department's website a notice: (i) setting out the draft instrument or variation; and (ii) inviting persons to make submissions to the Minister about the draft instrument or variation within 14 days after the notice is published; and (b) consider any submissions received within the 14‑day period mentioned in paragraph (a). (4) The variation takes effect when it is accepted by the ACCC. (5) As soon as practicable after the variation takes effect, the ACCC must publish the variatio