Telecommunications Competition Act 2002 (Cth)

Telecommunications Competition Act 2002 No. 140, 2002 An Act to amend the law relating to telecommunications, and for other purposes Contents 1 Short title................................... 2 Commencement............................... 3 Schedule(s).................................. Schedule 1—Amendment of the Telecommunications Act 1997 Part 1—Pre‑selection in favour of carriage service providers Part 2A—Industry development plans Part 3—Access to network information Part 4—Instruments Schedule 2—Amendment of the Trade Practices Act 1974 Part 1—Model terms and conditions relating to access to core services etc. Part 2—Merits review of final determinations Part 3—Duration of declarations Part 4—Revocation of declarations of minor importance Part 5—Service provider's reasonably anticipated requirements Part 6—Costs of extending or enhancing the capability of a facility etc. Part 7—Hindering the fulfilment of a standard access obligation etc. Part 8—Backdating of final determinations Part 9—Guidelines about the ACCC's powers to regulate anti‑competitive conduct Part 10—Telecommunications access codes Part 11—Exemptions from standard access obligations Part 12—Access undertakings Part 13—Ordering and provisioning Part 14—Review of competition decisions Part 15—Competition notices and advisory notices etc. Part 16—Record‑keeping rules and disclosure directions Telecommunications Competition Act 2002 No. 140, 2002 An Act to amend the law relating to telecommunications, and for other purposes [Assented to 19 December 2002] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Telecommunications Competition Act 2002. 2 Commencement This Act commences on the day on which it receives the Royal Assent. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Amendment of the Telecommunications Act 1997 Part 1—Pre‑selection in favour of carriage service providers 1 Section 5 Omit "ACA may require certain carriers and carriage service providers to provide pre‑selection", substitute "ACA must require certain carriers and carriage service providers to provide pre‑selection". 2 Section 348 Omit "may", substitute "must". 3 Subsection 349(2) Omit "may", substitute "must". 4 Subsection 349(2) After "specified" (first occurring), insert "declared". 4A At the end of subsection 349(2) Add: Note: Declared carriage service is defined by section 350A. 4B After section 350 Insert: 350A Declared carriage services (1) The ACCC may, by written instrument, declare that a specified carriage service is a declared carriage service for the purposes of this Part. (2) The declaration has effect accordingly. (3) In deciding whether to make a declaration under this section, the ACCC must have regard to whether the declaration will promote the long‑term interests of end‑users of: (a) carriage services; or (b) services supplied by means of carriage services. (4) The ACCC may have regard to any other matters that it thinks are relevant. (5) For the purposes of this section, the question whether a particular thing promotes the long‑term interests of end‑users of: (a) carriage services; or (b) services supplied by means of carriage services; is to be determined in the same manner in which that question is determined for the purposes of Part XIC of the Trade Practices Act 1974. Note: See section 152AB of the Trade Practices Act 1974. 5 At the end of section 352 Add: (4) Before making a declaration under this section, the ACA must consult the ACCC. 6 Transitional—sections 349 and 350A of the Telecommunications Act 1997 (1) This item applies if: (a) a carriage service was the subject of a determination under subsection 349(2) of the Telecommunications Act 1997; and (b) the determination was in force immediately before the commencement of this item. (2) The Telecommunications Act 1997 has effect, in relation to the carriage service, as if the ACCC had: (a) made an instrument under subsection 350A(1) of that Act declaring the service to be a declared carriage service for the purposes of Part 17 of that Act; and (b) complied with the requirement set out in subsection 350A(3) of that Act in relation to the instrument. (3) This item does not prevent the instrument referred to in paragraph (2)(a) from being varied or revoked by the ACCC in accordance with subsection 33(3) of the Acts Interpretation Act 1901. (4) The amendments of subsection 349(2) of the Telecommunications Act 1997 made by this Part do not affect the validity of the determination. Part 2A—Industry development plans 15 Subclause 5(1) of Schedule 1 Repeal the subclause, substitute: Declarations (1) The Industry Minister may, by written instrument, declare that a specified kind of carrier is a declared kind of carrier for the purposes of this clause. 15A At the end of clause 5 of Schedule 1 Add: Exemption certificates—applicants for carrier licences (4) The ACA may issue an exemption certificate to an applicant for a carrier licence if the ACA is satisfied that, if the applicant were to become a carrier, the applicant would be a declared kind of carrier. (5) The ACA must cancel an exemption certificate issued to an applicant for a carrier licence if the ACA is no longer satisfied that, if the applicant were to become a carrier, the applicant would be a declared kind of carrier. Exemption certificates—carriers (6) The ACA may issue an exemption certificate to a carrier if the ACA is satisfied that the carrier is a declared kind of carrier. (7) The ACA must cancel an exemption certificate issued to a carrier if the ACA is no longer satisfied that the carrier is a declared kind of carrier. Exemption—applicants for carrier licences (8) If an exemption certificate issued to an applicant for a carrier licence is in force, subclause 4(1) does not apply in relation to the decision to grant the licence. Exemption—carriers (9) If an exemption certificate issued to a carrier is in force, this Part does not apply to the carrier. 15B After paragraph 1(x) of Schedule 4 Insert: (xa) a decision under clause 5 of Schedule 1 to refuse to issue an exemption certificate; (xb) a decision under clause 5 of Schedule 1 to cancel an exemption certificate; 15C Transitional—subclause 5(1) of Schedule 1 to the Telecommunications Act 1997 (1) This item applies if: (a) a declaration was made by the Industry Minister under subclause 5(1) of Schedule 1 to the Telecommunications Act 1997 in relation to a specified kind of carrier; and (b) the declaration was in force immediately before the commencement of this item. (2) The Telecommunications Act 1997 has effect, in relation to the specified kind of carrier, as if the Industry Minister had made a declaration under subclause 5(1) of Schedule 1 to that Act (as amended by this Part) that the specified kind of carrier is a declared kind of carrier for the purposes of that clause. (3) This item does not prevent the declaration referred to in subitem (2) from being varied or revoked by the Industry Minister in accordance with subsection 33(3) of the Acts Interpretation Act 1901. 15D Transitional—subclause 5(6) of Schedule 1 to the Telecommunications Act 1997 (1) This item applies if, as a result of a declaration under subclause 5(1) of Schedule 1 to the Telecommunications Act 1997, Part 2 of Schedule 1 to that Act did not apply to a carrier immediately before the commencement of this item. (2) The Telecommunications Act 1997 has effect, in relation to the carrier, as if the ACA had issued an exemption certificate to the carrier under subclause 5(6) of Schedule 1 to that Act. (3) This item does not prevent the exemption certificate referred to in subitem (2) from being cancelled by the ACA under subclause 5(7) of Schedule 1 to the Telecommunications Act 1997. Part 3—Access to network information 16 Paragraph 21(2)(a) of Schedule 1 Before "information", insert "timely and detailed". 17 Paragraph 21(2)(b) of Schedule 1 Before "traffic", insert "timely and detailed". 18 Subclause 21(3) of Schedule 1 Repeal the subclause, substitute: (3) The first carrier is not required to comply with subclause (2) unless: (a) a purpose of the access is to enable the second carrier to undertake planning, maintenance or reconfiguration of the second carrier's telecommunications network; and (b) the second carrier's request is reasonable. 19 Subclause 22(2) of Schedule 1 Before "information", insert "timely and detailed". 20 Subclause 22(3) of Schedule 1 Repeal the subclause, substitute: (3) The first carrier is not required to comply with subclause (2) unless: (a) a purpose of the access is to enable the second carrier to undertake planning, maintenance or reconfiguration of the second carrier's telecommunications network; and (b) the second carrier's request is reasonable. 21 Subclause 23(2) of Schedule 1 Omit "that is sufficient to enable the second carrier to undertake planning for the second carrier's own telecommunications network". 22 Subclause 23(4) of Schedule 1 Repeal the subclause, substitute: (4) The first carrier is not required to comply with subclause (2) unless: (a) a purpose of the provision of the information is to enable the second carrier to undertake planning for its own telecommunications network; and (b) the second carrier's request is reasonable. 23 Subclause 24(3) of Schedule 1 Repeal the subclause, substitute: (3) The first carrier is not required to comply with subclause (2) unless: (a) a purpose of the provision of the information is to enable the second carrier to undertake planning for its own telecommunications network; and (b) the second carrier's request is reasonable. 24 Transitional—clauses 21, 22 and 23 of Schedule 1 to the Telecommunications Act 1997 (1) This item applies to a request if: (a) the request was made under subclause 21(2), 22(2) or 23(2) of Schedule 1 to the Telecommunications Act 1997; and (b) the request was in force immediately before the commencement of this item. (2) The request has effect, after the commencement of this item, as if it had been made under, and in the terms required by, subclause 21(2), 22(2) or 23(2), as the case may be, of Schedule 1 to that Act (as amended by this Part). Part 4—Instruments 25 Subsection 589(6) (definition of this Act) Repeal the definition, substitute: this Act includes: (a) the Telecommunications (Consumer Protection and Service Standards) Act 1999; and (b) Parts XIB and XIC of the Trade Practices Act 1974. Schedule 2—Amendment of the Trade Practices Act 1974 Part 1—Model terms and conditions relating to access to core services etc. 1 After subsection 152AQA(7) Insert: Other powers not limited (7A) To avoid doubt, neither: (a) this section; nor (b) a determination under this section; limits the Commission's powers under the following provisions: (c) Division 4 (which deals with the telecommunications access code); (d) Division 5 (which deals with access undertakings). 2 After section 152AQA Insert: 152AQB Model terms and conditions relating to access to core services Core services (1) For the purposes of this section, each of the following declared services is a core service: (a) the Domestic PSTN Originating Access Service (as described in the relevant declaration); (b) the Domestic PSTN Terminating Access Service (as described in the relevant declaration); (c) the Unconditioned Local Loop Service (as described in the relevant declaration); (d) the Local Carriage Service (as described in the relevant declaration); (e) a declared service specified in the regulations. Determination setting out model terms and conditions (2) The Commission must make a written determination setting out model terms and conditions relating to access to each core service. Timing (3) The Commission must take all reasonable steps to ensure that a determination relating to a core service referred to in paragraph (1)(a), (b), (c) or (d) is made within 6 months after the commencement of this section. (4) The Commission must take all reasonable steps to ensure that a determination relating to a core service specified in the regulations is made within 6 months after the relevant regulation takes effect. Public consultation (5) Before making a determination under this section, the Commission must: (a) publish a draft of the determination and invite people to make submissions to the Commission on the draft determination; and (b) consider any submissions that are received within the time limit specified by the Commission when it published the draft determination. Consultation with ACA (6) Before making a determination under this section, the Commission must consult the ACA. Publication (7) The Commission must publish a determination under this section in such manner as it considers appropriate (including in electronic form). Duration of determination (8) Unless sooner revoked, a determination under this section relating to a particular core service ceases to be in force at the end of: (a) the period of 5 years beginning on the day on which the determination was made; or (b) if a longer period is specified in the regulations in relation to the determination—that longer period. Arbitration (9) The Commission must have regard to a determination under this section if it is required to arbitrate an access dispute under Division 8 in relation to a core service covered by the determination. Ministerial pricing determinations prevail etc. (10) A determination under this section has no effect to the extent that it is inconsistent with: (a) any Ministerial pricing determination; or (b) any determination under section 152AQA. Other powers not limited (11) To avoid doubt, neither: (a) this section; nor (b) a determination under this section; limits the Commission's powers under the following provisions: (c) Division 4 (which deals with the telecommunications access code); (d) Division 5 (which deals with access undertakings). 3 Subsection 152CH(1) (before note 2) Insert: Note 1A: Subsection 152AQA(7) provides that a determination under section 152AQA has no effect to the extent that the determination is inconsistent with any Ministerial pricing determination. Note 1B: Subsection 152AQB(9) provides that a determination under section 152AQB has no effect to the extent that the determination is inconsistent with any Ministerial pricing determination. 4 Section 152CLA (note) Omit "relevant pricing determination under section 152AQA", substitute "the matters set out in section 152CR, to any relevant pricing determination under section 152AQA and, in the case of core services, to any relevant determination under section 152AQB". Part 2—Merits review of final determinations 5 Subsections 152DN(2) to (8) Repeal the subsections. 6 Subsection 152DNA(3) Omit "subsections 152CPA(9) and 152DN(5) and (6)", substitute "subsection 152CPA(9)". 7 Subsection 152DNA(5) Omit "subsection 152DN(1)", substitute "section 152DN". 8 Subdivision F of Division 8 of Part XIC Repeal the Subdivision. 9 Transitional—review of determinations (1) This item applies if: (a) a final determination was made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974 before the commencement of this item; or (b) both: (i) a final determination is made by the Commission under Division 8 of Part XIC of the Trade Practices Act 1974 after the commencement of this item; and (ii) the final determination relates to an access dispute that was notified under section 152CM of the Trade Practices Act 1974 before 26 September 2002. (2) Despite the amendments made by this Part, the Trade Practices Act 1974 continues to apply, in relation to a review of the final determination, as if those amendments had not been made. Part 3—Duration of declarations 10 After section 152AL Insert: 152ALA Duration of declaration Expiry date (1) A declaration under section 152AL must specify an expiry date for the declaration. (2) An expiry date must occur in the 5‑year period beginning when the declaration was made. (3) Subsection (2) has effect subject to subsection (4). Extension of expiry date (4) The Commission may, by notice published in the Gazette, extend or further extend the expiry date of a specified declaration under section 152AL, so long as the extension or further extension is for a period of not more than 5 years. Duration of declaration (5) Unless sooner revoked, a declaration under section 152AL ceases to be in force on the expiry date of the declaration. Fresh declaration (6) If a declaration under section 152AL expires, this Part does not prevent the Commission from making a fresh declaration under section 152AL in the same terms as the expired declaration. Public inquiry during 12‑month period ending on the expiry date of a declaration (7) The Commission must: (a) during the 12‑month period ending on the expiry date of a declaration, hold a public inquiry under Part 25 of the Telecommunications Act 1997 about: (i) whether to extend or further extend the expiry date of the declaration; and (ii) whether to revoke the declaration; and (iii) whether to vary the declaration; and (iv) whether to allow the declaration to expire without making a new declaration under section 152AL; and (v) whether to allow the declaration to expire and then to make a new declaration under section 152AL; and (b) prepare a report about the inquiry under section 505 of the Telecommunications Act 1997; and (c) publish the report during the 180‑day period ending on the expiry date of the first‑mentioned declaration. (8) If: (a) after holding a public inquiry under subsection (7) in relation to a declaration, the Commission allows the declaration to expire and then makes a new declaration under section 152AL; and (b) the report mentioned in paragraph (7)(b) was published during the 180‑day period ending when the new declaration was made; the Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c) in relation to the new declaration. (9) If: (a) after holding a public inquiry under subsection (7) in relation to a declaration, the Commission revokes or varies the declaration; and (b) the report mentioned in paragraph (7)(b) was published during the 180‑day period ending at the time of the revocation or variation; the Commission is taken to have complied with paragraphs 152AL(3)(a), (b) and (c) in relation to the revocation or variation (as those paragraphs apply to the power of revocation and variation because of subsection 152AO(1)). 11 At the end of subsection 152AM(1) Add "or 152ALA(7)(a)". 12 At the end of subsection 152AN(1) Add "or 152ALA(7)(a)". 13 Paragraph 152AQ(2)(c) After "152AL(3)(a)", insert "or 152ALA(7)(a)". 14 After section 152DNB Insert: 152DNC Continuity of final determination not affected by expiry of declaration relating to declared service (1) This section applies if: (a) a declaration under section 152AL expires; and (b) immediately before the expiry of the declaration, a final determination was in force in relation to the declared service concerned; and (c) the determination does not have an indefinite duration. (2) Despite the expiry of the declaration, the declaration continues in force for the purposes of: (a) ascertaining whether the determination remains in force; and (b) ascertaining whether a party to the determination has any obligations under section 152AR to any other party to the determination while the determination remains in force; and (c) exercising the Commission's power to vary the determination under section 152DT. (3) A party to the determination is not entitled to notify an access dispute in relation to the declared service. 15 Transitional—section 152ALA of the Trade Practices Act 1974 (1) This item applies to a declaration if: (a) the declaration was made under section 152AL of the Trade Practices Act 1974; and (b) the declaration was in force immediately before the commencement of this item. (2) Section 152ALA of the Trade Practices Act 1974 does not apply to the declaration unless and until the Commission makes a determination in relation to the declaration under subitem (3). (3) The Commission may, by notice published in the Gazette, determine that section 152ALA of the Trade Practices Act 1974 has effect, in relation to a declaration specified in the determination, as if a date specified in the determination had been specified in the declaration as the expiry date of the declaration. (4) The specified date must occur within the 5‑year period beginning on the commencement of this item. (5) The Commission must take all reasonable steps to ensure that each declaration is covered by a determination under subitem (3) within 6 months after the commencement of this item. Part 4—Revocation of declarations of minor importance 16 After subsection 152AO(1) Insert: (1A) If: (a) a declaration under section 152AL relates to a particular service; and (b) in the Commission's opinion, the service is of minor importance; the Commission is not required to hold a public inquiry under Part 25 of the Telecommunications Act 1997 about a proposal to revoke the declaration. Part 5—Service provider's reasonably anticipated requirements 17 Paragraph 152CQ(1)(a) Omit "dispute was notified", substitute "access seeker made a request in relation to the service under section 152AR". 18 Paragraph 152CQ(1)(b) Omit "dispute was notified", substitute "access seeker made a request in relation to the service under section 152AR". 19 Transitional—section 152CQ of the Trade Practices Act 1974 To avoid doubt, the amendments of section 152CQ of the Trade Practices Act 1974 made by this Part do not affect the validity of a determination made before the commencement of this item. Part 6—Costs of extending or enhancing the capability of a facility etc. 20 Paragraph 152CQ(1)(f) Omit "some or all", substitute "an unreasonable amount". 21 Transitional—section 152CQ of the Trade Practices Act 1974 To avoid doubt, the amendment of section 152CQ of the Trade Practices Act 1974 made by this Part does not affect the validity of a determination made before the commencement of this item. Part 7—Hindering the fulfilment of a standard access obligation etc. 22 Section 152AA Omit "prevent or hinder access to a declared service", substitute "prevent or hinder the fulfilment of a standard access obligation". 23 Division 10 of Part XIC (heading) Repeal the heading, substitute: Division 10—Hindering the fulfilment of a standard access obligation etc. 24 Subsection 152EF(1) Repeal the subsection, substitute: (1) A person must not engage in conduct for the purpose of preventing or hindering the fulfilment of: (a) a standard access obligation; or (b) an obligation imposed by a determination made by the Commission under Division 8; if the person is: (c) a carrier or a carriage service provider who supplies a declared service; or (d) a service provider to whom a declared service is being supplied by a carrier or carriage service provider; or (e) a body corporate that is related to a carrier or provider referred to in paragraph (c) or (d). Note 1: The heading to section 152EF is altered by omitting "access to declared service" and substituting "the fulfilment of a standard access obligation etc.". Note 2: The heading to section 152EG is altered by omitting "access" and substituting "the fulfilment of a standard access obligation etc.". Part 8—Backdating of final determinations 25 At the end of section 152DNA Add: Interest (6) If: (a) a provision of a determination is covered by subsection (1); and (b) the provision requires a party to the determination (the first party) to pay money to another party; the determination may require the first party to pay interest to the other party, at the rate specified in the determination, on the whole or a part of the money, for the whole or a part of the period: (c) beginning on the date on which the parties began negotiations with a view to agreeing on the terms and conditions as mentioned in paragraph 152AY(2)(a); and (d) ending on the date on which the determination would have taken effect if no provision of the determination had been covered by subsection (1) of this section. Guidelines (7) In exercising the powers conferred by subsection (1) or (6), the Commission must have regard to: (a) any guidelines in force under subsection (8); and (b) such other matters as the Commission considers relevant. (8) The Commission must, by writing, formulate guidelines for the purposes of subsection (7). (9) The Commission must take all reasonable steps to ensure that the first set of guidelines under subsection (8) is made within 6 months after the commencement of this subsection. (10) Guidelines under subsection (8) are to be made available on the Internet. Part 9—Guidelines about the ACCC's powers to regulate anti‑competitive conduct 26 Subsection 151AP(3) Repeal the subsection, substitute: (3) Guidelines under subsection (2) must address the appropriateness of the Commission issuing a competition notice as opposed to the Commission taking other action under this Act. (4) The Commission must take all reasonable steps to ensure that guidelines under subsection (2) comply with subsection (3) within 12 months after the commencement of this subsection. Part 10—Telecommunications access codes 27 Section 152AC (definition of ACCC telecommunications access code) Repeal the definition. 28 Section 152AC (definition of approved TAF telecommunications access code) Repeal the definition. 29 Section 152AC (definition of draft TAF telecommunications access code) Repeal the definition. 30 Section 152AC (definition of TAF) Repeal the definition. 31 Section 152AC Insert: telecommunications access code means a code made under section 152BJ. 32 Section 152AI Repeal the section. 33 Subsection 152AL(2) Repeal the subsection. 34 Subsection 152AM(4) Omit "and the TAF". 35 Subsection 152AO(2) Repeal the subsection. 36 Section 152AP Repeal the section. 37 Paragraph 152AQ(2)(c) Omit "or subsection 152AO(2)". 38 Subdivision A of Division 4 of Part XIC Repeal the Subdivision. 39 Subdivision B of Division 4 of Part XIC (heading) Repeal the heading. 40 Section 152BJ Repeal the section, substitute: 152BJ Telecommunications access code Commission may make code (1) The Commission may, by writing, make a telecommunications access code. Disallowable instrument (2) A telecommunications access code is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Only one code (3) The Commission must ensure that not more than one code is in force at a particular time. 41 Subsection 152BK(1) Omit "An ACCC", substitute "A". Note: The heading to section 152BK is altered by omitting "ACCC". 42 Subsection 152BK(3) Omit "an ACCC", substitute "a". 43 Section 152BL Omit "an ACCC", substitute "a". Note: The heading to section 152BL is altered by omitting "ACCC". 44 Section 152BM Omit "an ACCC", substitute "a". 45 Section 152BN Omit "an ACCC", substitute "a". 46 Section 152BN Omit "the TAF and". Note: The heading to section 152BN is altered by omitting "TAF and". 47 Section 152BO Repeal the section. 48 Subdivision C of Division 4 of Part XIC Repeal the Subdivision. 49 Subdivision D of Division 4 of Part XIC (heading) Repeal the heading. 50 Subsection 152BR(1) Omit "approved TAF" (wherever occurring). 51 Paragraph 152BR(1)(b) Omit "approved variations", substitute "variations". 52 Subsection 152BS(4) Omit "approved TAF". 53 Paragraph 152BV(1)(b) Omit "approved TAF". 54 Paragraph 152BW(1)(b) Omit "approved TAF". 55 Subparagraph 152BX(2)(b)(ii) Omit "approved TAF". 56 Subsection 152CH(1) (note 1) Repeal the note. 57 Subsection 152CH(1) (note 2) Omit "an ACCC", substitute "a". 58 Subsection 152CH(1) (note 5) Omit "approved TAF". 59 Subsection 152CI(2) Omit "approved TAF". s Part 11—Exemptions from standard access obligations 60 After section 152AS Insert: 152ASA Anticipatory class exemptions from standard access obligations Determination providing for exemption (1) The Commission may, by written instrument, determine that, in the event that a specified service or proposed service becomes an active declared service, each of the members of a specified class of carrier or of a specified class of carriage service provider are exempt from any or all of the obligations referred to in section 152AR, to the extent to which the obligations relate to the active declared service. (2) A determination under this section may be unconditional or subject to such conditions or limitations as are specified in the determination. (3) A determination under this section has effect accordingly. Criteria for making determination (4) The Commission must not make a determination under this section unless the Commission is satisfied that the making of the determination will promote the long‑term interests of end‑users of carriage services or of services supplied by means of carriage services. Expiry time of determination (8) A determination under this section must specify the expiry time of the determination. If a determination expires, this Part does not prevent the Commission from making: (a) a fresh determination under this section in the same terms as the expired determination; or (b) if the service or proposed service has become an active declared service—a determination under section 152AS in relation to the service. (9) The expiry time of the determination may be described by reference to the end of a period beginning when the service or proposed service becomes an active declared service. (10) Subsection (9) does not, by implication, limit subsection (8). Consultation (11) If, in the Commission's opinion, the making of a determination under this section is likely to have a material effect on the interests of a person, then, before making the determination, the Commission must first: (a) publish a draft of the determination and invite people to make submissions to the Commission on the question of whether the draft determination should be made; and (b) consider any submissions that were received within the time limit specified by the Commission when it published the draft determination. Disallowable instrument (12) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Definition (13) In this section: active declared service has the same meaning as in section 152AR. Note: The heading to section 152AS is altered by omitting "Class" and substituting "Ordinary class". 61 Subsection 152AT(10) Repeal the subsection, substitute: Commission to make decision within 6 months (10) If the Commission does not make a decision on an application under subsection (1) within 6 months after receiving the application, the Commission is taken to have made, at the end of that 6‑month period, an order under paragraph (3)(a) in accordance with the terms of the application. (11) In calculating the 6‑month period referred to in subsection (10), disregard: (a) if the Commission has published the application under subsection (9)—a day in the period: (i) beginning on the date of publication; and (ii) ending at the end of the time limit specified by the Commission when it published the application; and (b) if the Commission has requested further information under section 152AU in relation to the application—a day during any part of which the request, or any part of the request, remains unfulfilled. Extension of decision‑making period (12) The Commission may, by written notice given to the applicant, extend or further extend the 6‑month period referred to in subsection (10), so long as: (a) the extension or further extension is for a period of not more than 3 months; and (b) the notice includes a statement explaining why the Commission has been unable to make a decision on the application within that 6‑month period or that 6‑month period as previously extended, as the case may be. (13) As soon as practicable after the Commission gives a notice under subsection (12), the