Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000
No. 142, 2000
Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000
No. 142, 2000
An Act to amend the Telecommunications (Consumer Protection and Service Standards) Act 1999, and for related purposes
Contents
1............ Short title............................................................................................ 1
2............ Commencement.................................................................................. 2
3............ Schedule(s).......................................................................................... 2
Schedule 1—New Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 3
Schedule 2—Application and transitional provisions 23
Schedule 3—Consequential and other amendments 23
Telecommunications Act 1997 23
Telecommunications (Consumer Protection and Service Standards) Act 1999 23
Schedule 4—Levy distribution for the 1998‑1999 financial year 23
Schedule 5—Levy distribution for the 1999‑2000 financial year 23
Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000
No. 142, 2000
An Act to amend the Telecommunications (Consumer Protection and Service Standards) Act 1999, and for related purposes
[Assented to 29 November 2000]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000.
2 Commencement
(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.
(2) Schedules 1 to 3 (other than items 10, 11 and 13 of Schedule 3) commence, or are taken to have commenced, on 1 July 2000.
(3) Items 10, 11 and 13 of Schedule 3 commence on the first 1 January, 1 April, 1 July or 1 October following the day on which this Act receives the Royal Assent.
3 Schedule(s)
Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—New Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999
1 Part 2
Repeal the Part, substitute:
Part 2—Universal Service Regime
Division 1—Introduction
8 Simplified outline
This is a simplified outline of this Part:
This Part establishes a universal service regime.
In general terms, the universal service regime involves:
(a) the universal service obligation and universal service subsidy; and
(b) the digital data service obligation and digital data cost; and
(c) arrangements for collecting and distributing universal service levy.
The main object of the universal service regime is to ensure that all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to:
(a) standard telephone services; and
(b) payphones; and
(c) prescribed carriage services; and
(d) digital data services.
The key elements of the universal service regime are as follows:
(a) the specification of the universal service obligation and digital data service obligation;
(b) the determination of universal service areas and digital data service areas;
(c) the specification of arrangements for the fulfilment of the universal service obligation;
(d) the determination of primary universal service providers and digital data service providers;
(e) the determination of contestable service obligations for particular universal service areas;
(f) requirements for the approval of, and compliance with, policy statements and marketing plans of universal service providers;
(g) requirements for the approval of, and compliance with, digital data service plans of digital data service providers;
(h) the determination of the universal service subsidy payable for supplying services in fulfilment of the universal service obligation;
(i) the determination of the digital data cost for supplying services in fulfilment of the digital data service obligation;
(j) the regulation of universal service charges and digital data service charges;
(k) the assessment, collection, recovery and distribution of the levy imposed by the Telecommunications (Universal Service Levy) Act 1997;
(l) the disclosure of information on which certain decisions under this Part are based;
(m) the maintenance by the ACA of Registers, and the delegation of the Minister’s powers under this Part to the ACA.
8A Objects
The objects of this Part are to give effect to the following policy principles:
(a) all people in Australia, wherever they reside or carry on business, should have reasonable access, on an equitable basis, to:
(i) standard telephone services; and
(ii) payphones; and
(iii) prescribed carriage services; and
(iv) digital data services;
(b) the universal service obligation described in section 9 and the digital data service obligation described in section 10 should be fulfilled:
(i) effectively, efficiently and economically; and
(ii) in ways that are consistent with Australia’s open and competitive telecommunications regime; and
(iii) in ways that are, as far as practicable, responsive to the needs of consumers;
(c) the fulfilment of the universal service obligation described in section 9, and the digital data service obligation described in section 10, should generally be open to competition among carriers and carriage service providers;
(d) specific and predictable funding arrangements to advance the fulfilment of the universal service obligation, particularly in high cost areas, should be available;
(e) providers of telecommunications services should contribute, in a way that is equitable and reasonable, to the funding of the universal service obligation and digital data service obligation;
(f) information on the basis on which decisions are made for the purposes of the universal service regime should generally be open to public scrutiny;
(g) the universal service regime should be flexible and able to deal with rapid changes in both the telecommunications industry and the needs of consumers.
8B Special meaning of Australia
(1) A reference in this Part to Australia includes a reference to:
(a) the Territory of Christmas Island; and
(b) the Territory of Cocos (Keeling) Islands; and
(c) an external Territory specified in the regulations.
(2) The definition of Australia in section 7 of the Telecommunications Act 1997 does not apply to this Part.
8C Meaning of service area
For the purposes of this Part, a service area is:
(a) a geographical area within Australia; or
(b) any area of land; or
(c) any premises or part of premises;
regardless of size.
8D Meaning of claim period
(1) For the purposes of this Part, a claim period is:
(a) the 2000‑2001 financial year and each later financial year; or
(b) if the Minister determines in writing another period—the other period.
(2) The Minister may determine different periods under paragraph (1)(b) in respect of:
(a) one or more universal service subsidies; or
(b) the digital data cost of one or more digital data service providers.
(3) A period determined by the Minister under paragraph (1)(b) must not be a part of more than one financial year.
(4) If the Minister determines a period under paragraph (1)(b), the determination may modify the way this Part applies to carriers and carriage service providers. The modifications may include additions, omissions and substitutions.
(5) A determination under paragraph (1)(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
8E Meaning of alternative telecommunications services, or ATS
For the purposes of this Part, alternative telecommunications services, or ATS, are services the supply of which by a particular universal service provider the ACA authorises for the purposes of this section.
8F Meaning of approved auditor
(1) A reference in this Part to an approved auditor is a reference to a person included in a class of persons specified in a written determination made by the ACA for the purposes of this section.
(2) A copy of the determination must be published in the Gazette.
8G Meaning of disability
In this Part:
disability has the same meaning as in the Disability Discrimination Act 1992.
Division 2—Universal service obligation
Subdivision A—What is the universal service obligation?
9 Universal service obligation
(1) For the purposes of this Act, the universal service obligation is the obligation:
(a) to ensure that standard telephone services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(b) to ensure that payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(c) to ensure that prescribed carriage services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business.
(2) To the extent necessary to achieve the obligation mentioned in subsection (1), the universal service obligation includes:
(a) the supply of standard telephone services to people in Australia on request; and
(b) the supply, installation and maintenance of payphones in Australia; and
(c) the supply of prescribed carriage services to people in Australia on request.
(3) The Minister may make a written determination that the universal service obligation includes the supply, installation and maintenance of payphones at specified locations in Australia. The determination has effect accordingly and a copy of the determination must be published in the Gazette.
(4) An obligation does not arise under paragraph (2)(a) in relation to particular equipment, goods or services the supply of which is treated under section 9E as the supply of a standard telephone service if the customer concerned requests not to be supplied with the equipment, goods or services.
(5) An obligation does not arise under paragraph (2)(c) in relation to particular equipment, goods or services the supply of which is treated under section 9F as the supply of a prescribed carriage service if the customer concerned requests not to be supplied with the equipment, goods or services.
(6) To avoid doubt, an obligation arising under paragraph (2)(a) in relation to customer equipment requires the customer concerned to be given the option of hiring the equipment.
9A Determinations of what is necessary to ensure reasonable accessibility
(1) The Minister may determine in writing for the purpose of paragraph 9(1)(a) what is, or is not, necessary to ensure that standard telephone services are reasonably accessible as mentioned in that paragraph.
(2) The Minister may determine in writing, for the purpose of paragraph 9(1)(b), what is, or is not, necessary to ensure that payphones are reasonably accessible as mentioned in that paragraph, including:
(a) criteria for determining the locations of payphones; and
(b) the process for public consultation on the location of payphones; and
(c) the process for resolution of any complaints about the location of payphones.
(3) The Minister may determine in writing, for the purpose of paragraph 9(1)(c), what is, or is not, necessary to ensure that prescribed carriage services are reasonably accessible as mentioned in that paragraph.
(4) Subsection 9(3) and subsection (2) of this section do not limit the generality of one another.
(5) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
9B What is a service obligation?
(1) Unless the Minister makes a determination under subsection (2), each of the following is a service obligation:
(a) the obligation referred to in paragraph 9(1)(a) (dealing with the standard telephone services);
(b) the obligation referred to in paragraph 9(1)(b) (dealing with payphones);
(c) the obligation referred to in paragraph 9(1)(c) (dealing with prescribed carriage services).
(2) The Minister may determine in writing the service obligations by dividing the universal service obligation in another way.
(3) The determination must also specify, in respect of each service obligation, what must be supplied or done in order to fulfil the service obligation.
(4) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
9C Payphones
For the purposes of this Part, a payphone is a fixed telephone that:
(a) is a means by which a standard telephone service is supplied; and
(b) when in normal working order, cannot be used to make a telephone call (other than a free call or a call made with operator assistance) unless, as payment for the call, or to enable payment for the call to be collected:
(i) money, or a token, card or other object, has been put into a device that forms part of, is attached to, or is located near, the telephone; or
(ii) an identification number, or a code or other information (in numerical or any other form) has been input into a device that forms part of, is attached to, or is located near, the telephone; or
(iii) a prescribed act has been done.
9D Prescribed carriage services
For the purposes of this Part, a prescribed carriage service is a carriage service specified in the regulations.
9E Supply of standard telephone services
(1) A reference in this Part to the supply of a standard telephone service includes a reference to the supply of:
(a) if the regulations prescribe customer equipment for the purposes of this paragraph—whichever of the following is applicable:
(i) that customer equipment;
(ii) if other customer equipment is supplied, instead of the first‑mentioned customer equipment, in order to comply with the Disability Discrimination Act 1992—that other customer equipment; and
(b) if paragraph (a) does not apply—whichever of the following is applicable:
(i) a telephone handset that does not have switching functions;
(ii) if other customer equipment is supplied, instead of such a handset, in order to comply with the Disability Discrimination Act 1992—that other customer equipment; and
(c) other goods of a kind specified in the regulations; and
(d) services of a kind specified in the regulations;
where the equipment, goods or services, as the case may be, are for use in connection with the standard telephone service.
(2) A reference in this Part to the supply of a standard telephone service includes a reference to the supply, to a person with a disability, of:
(a) customer equipment of a kind specified in the regulations; and
(b) other goods of a kind specified in the regulations; and
(c) services of a kind specified in the regulations;
where the equipment, goods or services, as the case may be, are for use in connection with the standard telephone service.
9F Supply of prescribed carriage services
A reference in this Part to the supply of a prescribed carriage service includes a reference to the supply of:
(a) customer equipment of a kind specified in the regulations; and
(b) other goods of a kind specified in the regulations; and
(c) services of a kind specified in the regulations;
where the equipment, goods or services, as the case may be, are for use in connection with the prescribed carriage service.
Subdivision B—Universal service areas
9G Universal service areas
(1) The Minister may make a written determination that a service area, determined in any way the Minister considers appropriate, is a universal service area in respect of one or more specified service obligations.
Note: In some circumstances, the Minister will be taken to have made a determination under this section: see subsections (3) and (4), and section 12E.
(2) In determining universal service areas, the Minister must ensure that no universal service area in respect of a service obligation overlaps to any extent with any other universal service area in respect of that service obligation.
(3) If, at a particular time, any areas of Australia are not within a universal service area, covered by a determination under subsection (1), in respect of a service obligation:
(a) those areas together constitute at that time a single universal service area in respect of that service obligation; and
(b) the Minister is taken to have made a determination under subsection (1) to that effect.
(4) If, at a particular time, one or more of the universal service areas, in respect of which the Minister is taken to have made a determination because of subsection (3), cover the same areas of Australia, then despite that subsection:
(a) those areas together constitute at that time a single universal service area in respect of all of the service obligations referred to in that subsection; and
(b) the Minister is taken to have made a determination under subsection (1) to that effect.
(5) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Note: A determination that the Minister is taken to have made under this section because of section 12E is not a disallowable instrument (see subsection 12E(6)).
9H Effect of determination
(1) A determination under section 9G takes effect on the day specified in the determination. That day must not be before the day on which notice of the determination is published in the Gazette.
(2) If the determination is expressed to cease to have effect at a specified time, the determination ceases to have effect at that time.
(3) A variation or revocation of a determination under section 9G takes effect on the day specified for the purpose in the instrument of variation or revocation. That day must not be before notice of the instrument is published in the Gazette.
9J Transitional arrangements may be determined
(1) If the Minister revokes a determination under section 9G, the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation.
(2) A copy of a determination under subsection (1) must be published in the Gazette.
Division 3—Digital data service obligation
Subdivision A—What is the digital data service obligation?
10 Digital data service obligation
For the purposes of this Act, the digital data service obligation is the obligation:
(a) to ensure that one or other of the following:
(i) general digital data services;
(ii) special digital data services;
are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and
(b) to ensure that general digital data services are reasonably accessible to at least 96% of the Australian population on an equitable basis; and
(c) to ensure that special digital data services are reasonably accessible to the remainder of the Australian population on an equitable basis.
10A General digital data service obligation
(1) For the purposes of this Act, the general digital data service obligation is the obligation to ensure that general digital data services are reasonably accessible to all people in general digital data service areas on an equitable basis.
(2) To the extent necessary to achieve the general digital data service obligation, it is part of that obligation to supply general digital data services to people in general digital data service areas on request.
10B Special digital data service obligation
(1) For the purposes of this Act, the special digital data service obligation is the obligation to ensure that special digital data services are reasonably accessible to all people in special digital data service areas on an equitable basis.
(2) To the extent necessary to achieve the special digital data service obligation, it is part of that obligation to supply special digital data services to people in special digital data service areas on request.
10C Supply of customer equipment or other goods or services
(1) An obligation does not arise under subsection 10A(2) in relation to particular equipment, goods or services the supply of which is treated under subsection 10F(1) as the supply of a general digital data service if the customer concerned requests not to be supplied with the equipment, goods or services.
(2) An obligation does not arise under subsection 10B(2) in relation to particular equipment, goods or services the supply of which is treated under subsection 10G(1) as the supply of a special digital data service if the customer concerned requests not to be supplied with the equipment, goods or services.
10D Rebate system
(1) The regulations may provide that:
(a) an obligation that arises under subsection 10A(2) in relation to particular customer equipment the supply of which is treated under subsection 10F(1) as the supply of a general digital data service; or
(b) an obligation that arises under subsection 10B(2) in relation to particular customer equipment the supply of which is treated under subsection 10G(1) as the supply of a special digital data service;
is taken to have been fulfilled by a person (so far as the obligation relates to a particular customer) if:
(c) the customer acquires or hires the equipment from a third person; and
(d) the customer is entitled to a rebate from the first‑mentioned person in respect of that acquisition or hire; and
(e) the amount of the rebate is equal to the amount ascertained in accordance with the regulations; and
(f) the liability to pay the rebate has been discharged; and
(g) the entitlement to the rebate complies with such requirements, restrictions and conditions (if any) as are specified in the regulations.
(2) Regulations made for the purposes of paragraph (1)(g) may require that the customer be given the option of assigning the customer’s right to the rebate to the third person.
(3) Subsection (2) does not, by implication, limit subsection (1).
10E Digital data services
(1) For the purposes of this Act, a digital data service is:
(a) a general digital data service (see subsection (2)); or
(b) a special digital data service (see subsection (3)).
General digital data service
(2) For the purposes of this Act, a general digital data service is a carriage service that provides a digital data capability broadly comparable to that provided by a data channel with a data transmission speed of 64 kilobits per second supplied to end‑users as part of the designated basic rate ISDN service.
Special digital data service
(3) For the purposes of this Act, a special digital data service is a carriage service that provides for a capability for the delivery of digital data to an end‑user broadly comparable to the corresponding capability provided by a data channel with a data transmission speed of 64 kilobits per second supplied to end‑users as part of the designated basic rate ISDN service.
Designated basic rate ISDN service
(4) For the purposes of this section, if:
(a) immediately before 1 July 1997, Telstra supplied a basic rate Integrated Services Digital Network (ISDN) service; and
(b) the service complied with any of the standards for ISDN services made by the European Telecommunications Standards Institute (ETSI);
the service is a designated basic rate ISDN service.
Comparability of digital data capability
(5) For the purposes of subsection (2), the determination of the comparability of the digital data capability of a carriage service is to be based solely on a comparison of the data transmission speed available to an end‑user of the service.
10F Supply of general digital data services
(1) A reference in this Part to the supply of a general digital data service includes a reference to the supply of:
(a) customer equipment of a kind specified in the regulations; and
(b) other goods of a kind specified in the regulations; and
(c) services of a kind specified in the regulations;
where:
(d) the equipment, goods or services, as the case may be, are for use in connection with the general digital data service; and
(e) the supply complies with such requirements, restrictions or conditions (if any) as are specified in the regulations.
(2) Regulations made for the purposes of paragraph (1)(e) may require that the supply of a specified kind of customer equipment is to be by way of hire. If those regulations impose such a requirement, this Part has effect, in relation to the customer equipment concerned, as if a reference to supply were a reference to supply by way of hire.
(3) Regulations made for the purposes of paragraph (1)(e) may require that specified customer equipment is to be supplied on the basis that the customer concerned enters into a legally enforceable agreement containing such terms and conditions relating to the ownership, possession, location, disposal or use of the equipment, as are specified in, or ascertained in accordance with, the regulations.
(4) Subsections (2) and (3) do not, by implication, limit paragraph (1)(e).
10G Supply of special digital data services
(1) A reference in this Part to the supply of a special digital data service includes a reference to the supply of:
(a) customer equipment of a kind specified in the regulations; and
(b) other goods of a kind specified in the regulations; and
(c) services of a kind specified in the regulations;
where:
(d) the equipment, goods or services, as the case may be, are for use in connection with the special digital data service; and
(e) the supply complies with such requirements, restrictions or conditions (if any) as are specified in the regulations.
(2) Regulations made for the purposes of paragraph (1)(e) may require that the supply of a specified kind of customer equipment is to be by way of hire. If those regulations impose such a requirement, this Part has effect, in relation to the customer equipment concerned, as if a reference to supply were a reference to supply by way of hire.
(3) Regulations made for the purposes of paragraph (1)(e) may require that specified customer equipment is to be supplied on the basis that the customer concerned enters into a legally enforceable agreement containing such terms and conditions relating to the ownership, possession, location, disposal or use of the equipment, as are specified in, or ascertained in accordance with, the regulations.
(4) Subsections (2) and (3) do not, by implication, limit paragraph (1)(e).
Subdivision B—Digital data service areas
10H General digital data service areas
(1) The Minister may make a written determination that a service area ascertained in accordance with the determination is a general digital data service area for the purposes of this Act. The determination has effect accordingly.
(2) A copy of the determination must be published in the Gazette.
(3) The Minister must exercise the powers conferred by this section in a manner that is consistent with the fulfilment of the digital data service obligation.
10J Special digital data service areas
(1) The Minister may make a written determination that a service area ascertained in accordance with the determination is a special digital data service area for the purposes of this Act. The determination has effect accordingly.
(2) A copy of the determination must be published in the Gazette.
(3) The Minister must exercise the powers conferred by this section in a manner that is consistent with the fulfilment of the digital data service obligation.
Division 4—The arrangements for fulfilling the universal service obligation
11 The arrangements that apply to universal service areas
(1) This section sets out the arrangements for the fulfilment of the universal service obligation by universal service providers.
(2) The default arrangements set out in Division 5 apply to each universal service area in respect of a service obligation.
(3) If the Minister determines under section 11C, for a universal service area in respect of a service obligation, that the obligation is a contestable service obligation, then:
(a) the default arrangements set out in Division 5 apply to the area; and
(b) the standard contestability arrangements set out in Division 6 apply to the area in respect of the contestable service obligation.
(4) If the Minister determines under Division 7 that alternative arrangements apply to a universal service area in respect of a service obligation (whether or not it is a contestable service obligation), then:
(a) those alternative arrangements apply to the area; and
(b) the default arrangements set out in Division 5 apply to the area except to the extent that the determination modifies the way those arrangements apply, or excludes them from applying, to the area.
11A Universal service providers
(1) For the purposes of this Part, a universal service provider means:
(a) a primary universal service provider (see section 12A); or
(b) a competing universal service provider (see section 13A)
(2) For the purposes of this Part, a person who is a primary universal service provider under a determination that is in force under section 12A, at any time during a claim period, is:
(a) a universal service provider for the claim period; and
(b) a primary universal service provider for the claim period.
(3) For the purposes of this Part, a person who is approved as a competing universal service provider under section 13B, at any time during a claim period, is:
(a) a universal service provider for the claim period; and
(b) a competing universal service provider for the claim period.
11B Former universal service provider may be required to provide information to current universal service provider
(1) This section applies if:
(a) either:
(i) the Minister determines under section 12A that a carrier or carriage service provider (the current provider) is the primary universal service provider for a universal service area (the relevant area) in respect of a service obligation; or
(ii) the ACA approves a carrier or carriage service provider (the current provider) under section 13B as a competing universal service provider for a universal service area (the relevant area) in respect of a contestable service obligation; and
(b) another person, who is or was a universal service provider for the area in respect of the obligation, is determined to be a former provider under subsection (2B).
Note: The Minister may be taken to have made a determination under section 12A if an agreement is made under section 56 or 57 of the Telstra Corporation Act 1991: see section 12E.
(2) This section also applies if:
(a) any of the following applies:
(i) the Minister revokes or varies a determination under section 12A so that a person (the former provider) ceases to be a universal service provider for a universal service area (the relevant area) in respect of a service obligation; or
(ii) the ACA revokes or varies an approval under section 13B so that a person (the former provider) ceases to be a universal service provider for a universal service area (the relevant area) in respect of a service obligation; or
(iii) a person (the former provider) otherwise ceases to be a universal service provider for a universal service area (the relevant area) in respect of a service obligation; and
(b) another person (the current provider), who was also a universal service provider for the relevant area in respect of the service obligation, continues to be a universal service provider for the area in respect of that obligation:
(i) if subparagraph (a)(i) or (ii) applies—after the revocation or variation; or
(ii) if subparagraph (a)(iii) applies—after the cessation.
(2A) Subsections (1) and (2) can apply before the determination, revocation or variation under section 12A or the approval, revocation or variation under section 13B takes effect.
(2B) The Minister may determine in writing that a person is a former provider for the purposes of this section.
(3) The current provider may, by written notice given to the former provider, require the former provider to give to the current provider specified information of the kind referred to in subsection (4). A notice of this kind cannot be given more than 6 months after:
(a) if subsection (1) applies—the later of the following days:
(i) the day on which the current provider became a universal service provider for the relevant area; or
(ii) the day on which the determination under section 12A was made, or the approval under section 13B was given, (as the case may be) in respect of the current provider; or
(b) if subsection (2) applies—the day on which the former provider ceases to be a universal service provider for the relevant area.
(4) The information that may be required to be given must be information that will assist the current provider in doing something that the current provider is or will be required or permitted to do by or under a provision of this Part. The notice must identify the doing of that thing as the purpose for which the information is required.
Note 1: If, for example, information about service location and customer contact details will assist the current provider in fulfilling its obligation under subsection 12C(1), the former provider may be required to provide that kind of information.
Note 2: See also subsection (6), which allows the Minister to determine that a specified kind of information is information referred to in this subsection.
(5) If a requirement made by a notice under subsection (3) is reasonable, the former provider must comply with the requirement as soon as practicable after receiving the notice. However, if the requirement is unreasonable, the former provider does not have to comply with it.
(6) The Minister may make a written determination to the effect that, either generally or in a particular case, information of a kind specified in the determination is taken to be information that will assist a person in doing a specified thing that the person is or will be required or permitted to do by or under a provision of this Part. The determination has effect accordingly.
(6A) If a former provider has been given notice of a requirement under subsection (3), the ACA may, in writing, direct the former provider to comply with the requirement or with specified aspects of the requirement. The former provider must comply with the direction.
(6B) In deciding whether to give a direction under subsection (6A), the ACA must consider whether the requirement under subsection (3) is reasonable.
(7) A determination under subsection (6) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
11C Determination of contestable service obligation
(1) The Minister may determine in writing, for a universal service area in respect of a service obligation, that the obligation is a contestable service obligation.
Note 1: This means that the standard contestability arrangements apply to the area in respect of the contestable service obligation (see subsection 11(3)).
Note 2: The Minister can make determinations under this section initially only in relation to pilot areas (see section 11F).
(2) The Minister must give to the ACA a copy of each determination made under this section.
(3) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
11D Effect of determination
(1) A determination under section 11C takes effect on the day specified in the determination. That day must not be before the day on which notice of the determination is published in the Gazette.
(2) If a determination under section 11C is expressed to cease to have effect at a specified time, the determination ceases to have effect at that time.
(3) A variation or revocation of a determination under section 11C takes effect on the day specified for the purpose in the instrument of variation or revocation. That day must not be before the day on which notice of the instrument is published in the Gazette.
11E Transitional arrangements may be determined
(1) If the Minister revokes a determination under section 11C, the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation.
(2) A copy of a determination under subsection (1) must be published in the Gazette.
11F Section 11C temporarily limited to pilot areas
(1) Until the Minister has done both of the following, the Minister can make determinations under section 11C only in relation to pilot areas (as defined in subsection (2)):
(a) received a comprehensive report, following a public inquiry by the ACA, on whether a net benefit has accrued from the operation, for a period not less than 12 months, of the standard contestability arrangements in each of the pilot areas;
(b) caused the report to be tabled in each House of the Parliament within 10 sitting days of that House after the Minister receives the report.
(2) A pilot area is an area determined in writing by the Minister for the purposes of this section. The Minister may determine a maximum of 2 pilot areas and cannot later change the boundaries of a pilot area.
(3) Before the Minister can make any determination under section 11C in relation to a pilot area, the Minister must have determined under section 9G one or more universal service areas that cover the whole of the pilot area.
(4) A copy of a determination under subsection (2) must be published in the Gazette.
Division 5—The default arrangements: primary universal service providers
Subdivision A—What are the default arrangements?
12 The default arrangements
The default arrangements consist of the arrangements set out in this Division.
Note: These apply to each universal service area except to the extent that a determination of alternative arrangements modifies the way they apply, or excludes them from applying, to the area (see subsection 11(4)).
Subdivision B—Primary universal service providers
12A Determination of primary universal service providers
(1) The Minister may determine in writing that a specified carrier or carriage service provider is the primary universal service provider for a universal service area in respect of a service obligation.
(2) The Minister may determine:
(a) different primary universal service providers in respect of different service obligations for the same universal service area; and
(b) the same person as the primary universal service provider for one or more universal service areas in respect of one or more service obligations.
(3) In exercising his or her powers under this section, the Minister must ensure that at all times there is one primary universal service provider, in respect of each service obligation, for each universal service area.
(4) In deciding whether to make a determination that a person is a primary universal service provider, the Minister is limited to considering factors that are relevant to achieving the objects of this Act.
(5) The Minister must give to the person and to the ACA a copy of the determination.
(6) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Note: A determination that the Minister is taken to have made under this section because of section 12D or 12E is not a disallowable instrument (see subsections 12D(2) and 12E(6)).
12B Effect of determination
(1) A determination under section 12A takes effect on the day specified in the determination. That day must not be before the day on which notice of the determination is published in the Gazette.
(2) If such a determination is expressed to cease to have effect at a specified time, the determination ceases to have effect at that time.
(3) A variation or revocation of a determination under section 12A takes effect on the day specified for the purpose in the instrument of variation or revocation. That day must not be before notice of the instrument is published in the Gazette.
(4) If the Minister revokes a determination under section 12A, the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation.
(5) A copy of a determination under subsection (4) must be published in the Gazette.
12C Obligations of primary universal service providers
(1) A primary universal service provider for a universal service area in respect of a service obligation must take all reasonable steps to:
(a) fulfil that service obligation, so far as it relates to that area; and
(b) comply with:
(i) the provider’s approved policy statement; and
(ii) the approved standard marketing plan of the provider that covers that area in respect of that service obligation; and
(iii) the approved ATS marketing plan (if any) of the provider that covers that area in respect of that service obligation.
Note 1: For the meaning of approved policy statement and approved standard marketing plan, see section 12F.
Note 2: For the meaning of approved ATS marketing plan, see section 12P.
(1A) A primary universal service provider for a universal service area in respect of a service obligation, who fulfils that service obligation by supplying alternative telecommunications services in accordance with an approved ATS marketing plan, is taken to have fulfilled any other obligation that arises under this Act because of that service obligation to the extent that the other obligation applies to the supply of alternative telecommunications services.
(2) The ACA may determine in writing requirements that a primary universal service provider must comply with if the provider intends to cease supplying alternative telecommunications services in accordance with an approved ATS marketing plan. A copy of the determination must be given to the provider.
(3) The provider must comply with those requirements (as well as any requirements in the plan).
12D Transitional: when Telstra is taken to be a primary universal service provider
(1) Until:
(a) a determination of a primary universal service provider under section 12A; or
(b) a deemed determination of a primary universal service provider under section 12E;
takes effect for the first time for a universal service area in respect of a service obligation, the Minister is taken to have made a determination under section 12A that Telstra is the primary universal service provider for that area in respect of that service obligation.
(2) Despite subsection 12A(6), the determination that the Minister is taken to have made is not a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. Instead, a notice must be published in the Gazette to the effect that Telstra is the primary universal service provider for the area in respect of that service obligation.
12E Effect of certain agreements under the Telstra Corporation Act 1991
(1) This section applies to agreements under section 56 or 57 of the Telstra Corporation Act 1991 made between the Commonwealth and a person (including a State or Territory) that are expressed to also have effect for the purposes of:
(a) this subsection; or
(b) subsection 20(2B) of this Act as in force immediately before the commencement of Schedule 1 to the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000.
(2) The Minister is taken to have properly made:
(a) a determination under section 9G that each of the areas, specified in the agreement as a universal service area in respect of a service obligation, is a universal service area in respect of that service obligation for the purposes of this Act; and
(b) a determination under section 12A that the person is a primary universal service provider for each of the areas, in respect of the service obligation or obligations, specified in the agreement.
Those determinations are referred to in this section as deemed determinations.
(3) The deemed determinations take effect as follows:
(a) if the commencement date (see subsection (4)) is the same for each of the areas—they take effect on that commencement date; or
(b) if there are different commencement dates for different areas—they take effect for those different areas on those different dates.
(4) The commencement date or dates for an area is or are as follows:
(a) if the agreement specifies a single date as the commencement date for the area—subject to paragraph (c), the commencement date for the area is the specified date;
(b) if the agreement specifies different dates as the commencement dates for different areas—subject to paragraph (c), the commencement dates for those areas are the specified dates;
(c) if a determination under subsection (5) specifies a date as the commencement date for the area or areas—the commencement date for the area or areas is the specified date (regardless of any dates specified in the agreement).
A commencement date cannot be a date before the agreement is made, or before the commencement of this subsection or the subsection referred to in paragraph (1)(a).
(5) The Minister may make a written determination specifying a date as the commencement date for the area or areas specified in the agreement as universal service areas. A copy of the determination must be published in the Gazette.
(6) Despite subsections 9G(5) and 12A(6), the deemed determinations are not disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901. Instead, a notice must be published in the Gazette that:
(a) states that the person is a primary universal service provider for the area or areas concerned, in respect of the service obligation or obligations concerned; and
(b) includes the relevant commencement date or dates.
(7) However, a variation or revocation of a deemed determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(8) This section applies to an agreement whether made before, on or after the commencement of Schedule 1 to the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000.
12EA Exclusive access to universal service subsidy
(1) If a person is a primary universal service provider for a universal service area in respect of a service obligation because of subsection 12E(2):
(a) the Minister must not determine any other person to be a primary universal service provider; and
(b) the ACA must not approve any other person as a competing universal service provider;
for that area in respect of that service obligation.
(2) Subsection (1) applies while the agreement referred to in subsection 12E(2) remains in force in relation to that area but no longer than 3 years after the commencement date for the area.
(3) This section applies despite anything else in this Part.
Subdivision C—Policy statements and standard marketing plans of primary universal service providers
12F Meaning of expressions
(1) A draft policy statement for a primary universal service provider is a general statement of the policy the provider will apply in supplying equipment, goods or services as a primary universal service provider.
(2) A draft policy statement that has been approved by the ACA under section 12K, and that is in force, is an approved policy statement for the primary universal service provider concerned.
(3) A draft standard marketing plan for a primary universal service provider for a universal service area in respect of a service obligation is a plan that sets out:
(a) the equipment, goods or services that the provider will supply in fulfilment of that service obligation, so far as it relates to that area; and
(b) the arrangements for supplying and marketing the equipment, goods or services;
but does not deal with alternative telecommunications services.
(4) A draft standard marketing plan that has been approved by the ACA under section 12K, and that is in force, is an approved standard marketing plan for the primary universal service provider concerned.
(5) A draft or approved standard marketing plan may cover one or more universal service areas in respect of one or more service obligations.
12G Minister may determine requirements for drafts
(1) The Minister may determine in writing requirements for draft policy statements and draft standard marketing plans of primary universal service providers.
(2) These are some examples of requirements in relation to draft standard marketing plans:
(a) timeframes for the supply of specified equipment, goods or services;
(b) performance standards relating to the fulfilment of the universal service obligation;
(c) processes for advising persons about the availability, offer and supply of equipment, goods or services in the fulfilment of the universal service obligation, and the terms and conditions on which the equipment, goods or services are offered or supplied;
(d) the form of a draft standard marketing plan.
(3) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
12H Obligation to submit a draft policy statement and draft standard marketing plan
Within 90 days after a person becomes a primary universal service provider for a universal service area in respect of a service obligation, the provider must give the ACA:
(a) a draft policy statement, or draft variation of an approved policy statement; and
(b) a draft standard marketing plan, or draft variation of an approved standard marketing plan;
covering that area in respect of that service obligation.
12J Public consultation required on draft policy statement and draft standard marketing plan
(1) Before giving the ACA a draft policy statement or draft standard marketing plan, a primary universal service provider must:
(a) publish a preliminary version of the draft and invite members of the public to make submissions to the provider about the preliminary version within a specified period (which must be at least 30 days); and
(b) give consideration to any submissions received from members of the public within that period.
(2) When giving the draft to the ACA, the provider must include advice on the submissions considered and any changes made to the draft as a result.
(3) However, this section does not apply to a fresh draft policy statement, or fresh draft standard marketing plan, given to the ACA by a primary universal service provider in accordance with a direction under paragraph 12M(2)(b) unless the ACA notifies the provider in writing that it does apply to the document.
12K Approval of draft policy statement
(1) The ACA must approve, or refuse to approve, a draft policy statement that a primary universal service provider gives to the ACA.
(2) The ACA must not approve the draft unless it is satisfied that the draft adequately deals with the supply of appropriate equipment, goods or services to:
(a) people with a disability; and
(b) people with special needs.
(3) If the service obligation concerned is a contestable service obligation, the ACA must also be satisfied that the draft sets out appropriate arrangements that the provider will put in place if a competing universal service provider for the universal service area concerned in respect of that obligation ceases to supply equipment, goods or services in that area in respect of that obligation.
Note: The arrangements may, for example, deal with the transfer of customers from a competing universal service provider to the primary universal service provider.
(4) In deciding whether to approve the draft, the ACA must also have regard to:
(a) whether the draft complies with the requirements (if any) under section 12G; and
(b) any other matters determined in writing by the Minister for the purposes of this paragraph; and
(c) such other matters as the ACA considers relevant.
(5) A copy of a determination made for the purposes of paragraph (4)(b) must be published in the Gazette.
12L Approval of draft standard marketing plan
(1) The ACA must approve, or refuse to approve, a draft standard marketing plan that a primary universal service provider gives to the ACA.
(2) The ACA must not approve the draft unless it is satisfied that:
(a) the draft specifies appropriate equipment, goods or services that the provider will supply in fulfilment of the service obligation concerned, so far as it relates to the universal service area concerned; and
(b) the draft adequately deals with how the provider will fulfil that service obligation, so far as it relates to that area; and
(c) the draft sets out appropriate terms and conditions on which the equipment, goods or services are to be supplied; and
(d) the draft sets out appropriate arrangements for the marketing of the supply of the equipment, goods or services to persons in the universal service area concerned.
(3) In deciding whether to approve the draft, the ACA must also have regard to:
(a) whether the draft complies with the requirements (if any) under section 12G; and
(b) any other matters determined in writing by the Minister for the purposes of this paragraph; and
(c) any other matters the ACA considers relevant.
(4) A copy of a determination made for the purposes of paragraph (3)(b) must be published in the Gazette.
12M Notice of decision
(1) The ACA must give written notice of the ACA’s decision whether to approve a draft policy statement, or draft standard marketing plan, to the primary universal service provider concerned.
(2) If the ACA refuses to approve the draft, the ACA:
(a) must give the provider written notice of the reasons for that refusal; and
(b) may, by giving written notice to the provider, direct the provider to give the ACA, within a specified period and in specified terms, a fresh draft policy statement or fresh draft standard marketing plan as the case may be.
(3) The provider must comply with a direction under paragraph (2)(b).
(4) A copy of the notice under subsection (1) must be published in the Gazette if the decision is to approve the draft.
Subdivision D—ATS marketing plans of primary universal service providers
12P Meaning of expressions
(1) A draft ATS marketing plan for a primary universal service provider for a universal service area in respect of a service obligation is a plan that sets out:
(a) the alternative telecommunications services that the provider will supply in fulfilment of that service obligation so far as it relates to that area; and
(b) the arrangements for supplying and marketing those services.
(2) A draft ATS marketing plan that has been approved by the ACA under section 12T, and that is in force, is an approved ATS marketing plan for the primary universal service provider concerned.
(3) Each draft or approved ATS marketing plan must cover only one universal service area and only one service obligation. However, the ACA may determine in writing that this subsection does not apply to:
(a) draft or approved ATS marketing plans generally; or
(b) a draft or approved ATS marketing plan of a particular primary universal service provider.
(4) A copy of a determination made under subsection (3) must be published in the Gazette.
12Q Minister may determine requirements for drafts
(1) The Minister may determine in writing requirements for draft ATS marketing plans of primary universal service providers.
(2) These are some examples of requirements:
(a) timeframes for the supply of specified equipment, goods or services;
(b) performance standards relating to the fulfilment of the universal service obligation;
(c) processes for advising persons about the availability, offer and supply of equipment, goods or services in the fulfilment of the universal service obligation, and the terms and conditions on which the equipment, goods or services are offered or supplied;
(d) the form of a draft ATS marketing plan.
(3) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
12R Primary universal service provider may submit a draft ATS marketing plan
(1) A primary universal service provider for a universal service obligation in respect of a service obligation, who wishes to supply alternative telecommunications services in fulfilment of that service obligation so far as it relates to that area, may give to the ACA a draft ATS marketing plan covering the supply of those services.
(2) To avoid doubt, the primary universal service provider is still required to fulfil that service obligation so far as it relates to that area in accordance with section 9.
12S Public consultation required on draft ATS marketing plan
(1) Before deciding whether to approve a draft ATS marketing plan, the ACA must require the provider concerned:
(a) to publish a preliminary version of the draft and invite members of the public to make submissions to the applicant about the preliminary version within a specified period (which must be at least 30 days); and
(b) to give consideration to any submissions received from members of the public within that period; and
(c) to advise the ACA on those submissions and any changes made to the draft as a result.
(2) Subsection (1) applies only if a draft ATS marketing plan is materially different from an ATS marketing plan previously approved by the ACA.
12T Approval of draft ATS marketing plan
(1) The ACA must approve, or refuse to approve, a draft ATS marketing plan that a primary universal service provider gives to the ACA.
(2) The ACA must not approve the draft unless it is satisfied that:
(a) the draft specifies appropriate equipment, goods or services that the provider will supply in supplying the alternative telecommunications services; and
(b) the draft adequately deals with how the provider will supply alternative telecommunications services in fulfilment of the service obligation concerned, so far as it relates to the area concerned; and
(c) the alternative telecommunications services are of general appeal and are appropriate for fulfilling that service obligation, so far as it relates to that area; and
(d) the draft sets out appropriate terms and conditions on which the equipment, goods or services are to be supplied; and
(e) the draft sets out appropriate arrangements for the marketing of the supply of the equipment, goods or services to persons in that area; and
(ea) the draft includes a requirement that, before entering into an agreement to supply a person with alternative telecommunications services, the provider must give to the person information about the substantive differences between:
(i) what is to be supplied under the draft in fulfilment of the service obligation concerned, so far as it relates to the area concerned; and
(ii) what would be supplied under the provider’s draft standard marketing plan or approved standard marketing plan in fulfilment of the same service obligation, so far as it relates to the same area; and
(f) the draft sets out appropriate procedures that the provider will comply with if the provider ceases to supply alternative telecommunications services in fulfilment of that service obligation, so far as it relates to that area; and
(g) the requirements of section 12S have been met.
(3) The procedures referred to in paragraph (2)(f) must include the giving of at least 45 days’ notice to the ACA, or such other notice as the ACA determines in writing is adequate for the purposes of that paragraph.
(4) In deciding whether to approve the draft, the ACA must also have regard to:
(a) whether the draft complies with the requirements (if any) under section 12Q; and
(b) any other matters determined in writing by the Minister for the purposes of this paragraph; and
(c) any other matters the ACA considers relevant.
(5) A copy of a determination made for the purposes of paragraph (2)(f) or (4)(b) must be published in the Gazette.
12U Notice of decision
(1) The ACA must give the provider written notice of the ACA’s decision on whether to approve the draft ATS marketing plan.
(2) If the ACA refuses to approve the draft, the ACA must give the provider written notice of the reasons for that refusal.
(3) A copy of a notice under subsection (1) must be published in the Gazette, if the decision is to approve the draft.
Subdivision E—Replacement, variation and revocation of policy statements, standard marketing plans and ATS marketing plans
12V Replacement of approved policy statement, approved standard marketing plan or approved ATS marketing plan
(1) An approved policy statement for a primary universal service provider ceases to be in force if a later draft policy statement, that is expressed to replace it, becomes an approved policy statement.
(2) An approved standard marketing plan for a primary universal service provider ceases to be in force if a later draft standard marketing plan, that is expressed to replace it, becomes an approved standard marketing plan.
(3) An approved ATS marketing plan for a primary universal service provider ceases to be in force if a later draft ATS marketing plan, that is expressed to replace it, becomes an approved ATS marketing plan.
12W Variation of approved policy statement, approved standard marketing plan or approved ATS marketing plan
(1) This section applies if:
(a) an approved policy statement for a primary universal service provider (the current statement) is in force; or
(b) an approved standard marketing plan for a primary universal service provider (the current plan) is in force; or
(c) an approved ATS marketing plan for a primary universal service provider (the current plan) is in force;
and the provider gives the ACA a draft variation of the current statement or current plan.
(2) The ACA must:
(a) approve the variation; or
(b) refuse to approve the variation.
(3) Before deciding whether to approve the variation, the ACA may, if the ACA considers it appropriate, require the provider:
(a) to publish a preliminary version of the draft variation and invite members of the public to make submissions to the provider about the preliminary version within a specified period; and
(b) to give consideration to any submissions from members of the public received within that period; and
(c) to advise the ACA on those submissions and any changes made to the draft variation as a result.
(4) The ACA must not approve the variation unless it is satisfied that:
(a) in the case of a draft variation of an approved policy statement—if the provider were to give the ACA a draft policy statement in the same terms as the current statement as varied, the ACA would approve that draft; or
(b) in the case of a draft variation of an approved standard marketing plan—if the provider were to give the ACA a draft standard marketing plan in the same terms as the current plan as varied, the ACA would approve that draft; or
(c) in the case of a draft variation of an approved ATS marketing plan—if the provider were to give the ACA a draft ATS marketing plan in the same terms as the current plan as varied, the ACA would approve that draft.
12X Notice of decision
(1) After deciding whether to approve a variation under section 12W, the ACA must give a written notice setting out the decision to the provider concerned.
(2) If the ACA refuses to approve the variation, the ACA must give a written notice setting out the reasons for the refusal to the provider.
(3) If the ACA approves the variation:
(a) the current statement or plan is varied accordingly; and
(b) a copy of the notice given to the provider must be published in the Gazette, unless the variation is only of a minor technical nature.
12Y Minister may direct variation or replacement of policy statement or standard marketing plan
(1) If an approved policy statement for a primary universal service provider is in force, the Minister may give the provider a written notice requiring the provider:
(a) within a specified period and in specified terms, to give the ACA a draft variation of the statement; or
(b) within a specified period and in specified terms, to give the ACA a fresh draft policy statement that is expressed to replace the statement.
(2) If an approved standard marketing plan for a primary universal service provider is in force, the Minister may give the provider a written notice requiring the provider:
(a) within a specified period and in specified terms, to give the ACA a draft variation of the plan; or
(b) within a specified period and in specified terms, to give the ACA a fresh draft standard marketing plan that is expressed to replace the plan.
(3) A primary universal provider to whom a notice under this section is given must comply with the notice.
12Z Minister may revoke approved ATS marketing plan
(1) The Minister may, by giving written notice to a primary universal service provider, revoke the provider’s approved ATS marketing plan if the Minister considers that it is in the public interest to do so. A copy of the notice must be given to the ACA.
(2) An approved ATS marketing plan that is revoked by the Minister ceases to be in force when the revocation takes effect.
(3) The revocation takes effect on the day specified in the notice which must be on or after the day on which the notice is given to the provider.
(4) The Minister may determine in writing arrangements to deal with issues of a transitional nature that may arise as a result of the revocation. A copy of the determination must be:
(a) given to the provider; and
(b) published in the Gazette.
(5) The provider must comply with the arrangements (if any) in a determination under subsection (4).
Division 6—The standard contestability arrangements: competing universal service providers
Subdivision A—What are the standard contestability arrangements?
13 The standard contestability arrangements
The standard contestability arrangements consist of the arrangements set out in this Division.
Note: These apply to universal service areas in respect of a contestable service obligation or obligations (see subsection 11(3)).
Subdivision B—Competing universal service providers
13A Application to be approved as a competing universal service provider
(1) A carrier or carriage service provider may apply to the ACA for approval as a competing universal service provider for a universal service area in respect of a contestable service obligation.
(2) The application must be in the form approved in writing by the ACA and must be accompanied by:
(a) a draft policy statement, or draft variation of an approved policy statement; and
(b) at least one of the following:
(i) a draft standard marketing plan;
(ii) a draft ATS marketing plan; and
(c) such information or documents as are required by the approved form.
Note 1: For the meaning of draft policy statement and approved policy statement, see section 13F.
Note 2: For the meaning of draft ATS marketing plan, see section 13M.
13B Approval of person as a competing universal service provider
(1) The ACA must, within a reasonable time:
(a) approve (in writing) the applicant as a competing universal service provider for the universal service area in respect of the contestable service obligation in accordance with the application; or
(b) refuse the application and give the applicant written notice of the reasons for that refusal.
(2) The ACA must not approve the applicant as a competing universal service provider unless:
(a) subject to subsection (3), the ACA is satisfied that the applicant is an appropriate person to be approved as a competing universal service provider, having regard to:
(i) the applicant’s relevant technical competence and experience; and
(ii) the applicant’s commercial competence and financial standing; and
(iii) any matters determined in writing by the Minister for the purposes of this subparagraph; and
(iv) any other matters the ACA considers relevant; and
(b) the applicant has an approved policy statement; and
(c) the applicant has either or both of the following:
(i) an approved standard marketing plan;
(ii) an approved ATS marketing plan;
covering the universal service area in respect of the contestable service obligation.
(3) If the applicant is already a competing universal service provider for a universal service area in respect of another contestable service obligation, the ACA may, but is not required to, assume that paragraph (2)(a) is satisfied.
(4) A copy of a determination made for the purposes of subparagraph (2)(a)(iii) must be published in the Gazette.
13C Date of effect of approval, or variation or revocation of approval
(1) An approval under section 13B takes effect on the day specified in the approval. That day must be on or after the day on which the approval is given.
(2) If an approval is expressed to cease to have effect at a specified time, it ceases to have effect at that time.
(3) A variation or revocation of an approval takes effect on the day specified for the purpose in the instrument of variation or revocation. That day must be on or after the day on which the instrument is made.
(4) If the ACA revokes an approval under section 13B, it may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation.
(5) A copy of a determination under subsection (4) must be published in the Gazette.
13D Obligations of competing universal service providers
(1) A competing universal service provider for a universal service area in respect of a contestable service obligation must take all reasonable steps to:
(a) fulfil that service obligation, so far as it relates to that area; and
(b) comply with:
(i) the provider’s approved policy statement; and
(ii) the approved standard marketing plan (if any) of the provider that covers that area in respect of that service obligation; and
(iii) the approved ATS marketing plan (if any) of the provider that covers that area in respect of that service obligation.
Note 1: For the meaning of approved policy statement and approved standard marketing plan, see section 13F.
Note 2: For the meaning of approved ATS marketing plan, see section 13M.
(2) A competing universal service provider for a universal service area in respect of a contestable service obligation, who fulfils that service obligation by supplying alternative telecommunications services in accordance with an approved ATS marketing plan, is taken to have fulfilled any other obligation that arises under this Act because of that service obligation to the extent that the other obligation applies to the supply of alternative telecommunications services.
(3) The ACA may determine in writing additional requirements that a competing universal service provider must comply with if the provider intends to cease fulfilling the contestable service obligation concerned, so far as it relates to the universal service area concerned, in accordance with:
(a) an approved standard marketing plan; or
(b) an approved ATS marketing plan.
(4) A copy of the determination must be given to the provider. The provider must comply with those requirements.
13E Surrender of approval as a competing universal service provider
(1) A competing universal service provider for a universal service area in respect of a contestable service obligation may, at any time, notify the ACA that the provider intends to cease fulfilling that contestable service obligation, so far as it relates to that area.
(2) In giving the notice to the ACA, the provider must comply with:
(a) the procedures referred to in paragraph 13K(2)(e) set out in the provider’s approved standard marketing plan; or
(b) the procedures referred to in paragraph 13Q(2)(f) set out in the provider’s approved ATS marketing plan;
whichever are applicable.
(3) After receiving the notice, the ACA may determine in writing:
(a) the date on which the provider’s approval as a competing universal service provider in respect of that contestable service obligation ceases to have effect; and
(b) that section 13D does not apply, to the extent specified in the determination, to the provider from the day on which the ACA received the notice or a later day specified in the determination.
(4) A copy of the determination must be:
(a) given to the provider; and
(b) published in the Gazette.
Subdivision C—Policy statements and standard marketing plans of competing universal service providers
13F Meaning of expressions
(1) A draft policy statement for an applicant for approval as a competing universal service provider is a general statement of the policy the applicant will apply in supplying equipment, goods or services as a competing universal service provider.
(2) A draft policy statement that has been approved by the ACA under section 13J, and that is in force, is an approved policy statement for the applicant or competing universal service provider concerned.
(3) A draft standard marketing plan for an applicant for approval as a competing universal service provider for a universal service area in respect of a contestable service obligation is a plan that sets out:
(a) the equipment, goods or services that the applicant will supply in fulfilment of that contestable service obligation, so far as it relates to that area; and
(b) the arrangements for supplying and marketing the equipment, goods or services;
but does not deal with alternative telecommunications services.
(4) A draft standard marketing plan that has been approved by the ACA under section 13K, and that is in force, is an approved standard marketing plan for the applicant or competing universal service provider concerned.
(5) Each draft or approved standard marketing plan may cover one or more universal service areas in respect of one or more contestable service obligations.
13G Minister may determine requirements for drafts
(1) The Minister may determine in writing requirements for draft policy statements and draft standard marketing plans of competing universal service providers.
(2) These are some examples of requirements for draft standard marketing plans:
(a) timeframes for the supply of specified equipment, goods or services;
(b) performance standards relating to the fulfilment of the universal service obligation;
(c) processes for advising persons about the availability, offer and supply of equipment, goods or services in the fulfilment of the universal service obligation, and the terms and conditions on which the equipment, goods or services are offered or supplied;
(d) the form of a draft standard marketing plan.
(3) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
13H Public consultation on draft policy statement or standard marketing plan
Draft policy statement
(1) Before giving the ACA a draft policy statement, the applicant concerned must:
(a) publish a preliminary version of the draft and invite members of the public to make submissions to the applicant about the preliminary version within a specified period (which must be at least 30 days); and
(b) give consideration to any submissions received from members of the public within that period.
(2) When giving the draft to the ACA, the applicant must include advice on the submissions considered and any changes made to the draft as a result.
Draft standard marketing plan
(3) Before deciding whether to approve a draft standard marketing plan, the ACA may require the applicant concerned:
(a) to publish a preliminary version of the draft and invite members of the public to make submissions to the applicant about the preliminary version within a specified period (which must be at least 30 days); and
(b) to give consideration to any submissions received from members of the public within that period; and
(c) to advise the ACA on those submissions and any changes made to the draft as a result.
13J Approval of draft policy statement
(1) The ACA must approve, or refuse to approve, a draft policy statement that an applicant for approval as a competing universal service provider gives to the ACA.
(2) The ACA must not approve the draft unless it is satisfied that the draft adequately deals with the supply of appropriate equipment, goods or services to:
(a) people with a disability; and
(b) people with special needs.
(3) The ACA must also be satisfied that the draft sets out appropriate arrangements that the applicant will put in place if another competing universal service provider for the universal service area concerned, in respect of the contestable service obligation concerned, ceases to supply equipment, goods or services in that area in respect of that contestable service obligation.
Note: The arrangements may, for example, deal with the transfer of customers from one competing universal service provider to another.
(4) In deciding whether to approve the draft, the ACA must also have regard to:
(a) whether the draft complies with the requirements (if any) under section 13G; and
(b) any other matters determined in writing by the Minister for the purposes of this paragraph; and
(c) such other matters as the ACA considers relevant.
(5) A copy of a determination made for the purposes of paragraph (4)(b) must be published in the Gazette.
13K Approval of draft standard marketing plan
(1) The ACA must approve, or refuse to approve, a draft standard marketing plan that an applicant for approval as a competing universal service provider gives to the ACA.
(2) The ACA must not approve the draft unless it is satisfied that:
(a) the draft specifies appropriate equipment, goods or services that the applicant will supply in fulfilment of the contestable service obligation concerned, so far as it relates to the universal service area concerned; and
(b) the draft adequately deals with how the applicant will fulfil that contestable service obligation, so far as it relates to that area; and
(c) the draft sets out appropriate terms and conditions on which the equipment, goods or services are to be supplied; and
(d) the draft sets out appropriate arrangements for the marketing of the supply of the equipment, goods or services to persons in that area; and
(e) the draft sets out appropriate procedures that the applicant will comply with if the applicant ceases:
(i) to supply any of the equipment, goods or services; or
(ii) to fulfil that contestable service obligation, so far as it relates to that area;
including the giving of at least 45 days’ notice to the ACA, or such other notice as the ACA determines in writing is adequate.
(3) In deciding whether to approve the draft, the ACA must also have regard to:
(a) whether the draft complies with the requirements (if any) under section 13G; and
(b) any other matters determined in writing by the Minister for the purposes of this paragraph; and
(c) any other matters the ACA considers relevant.
(4) A copy of a determination made for the purposes of paragraph (3)(b) must be published in the Gazette.
13L Notice of decision
(1) The ACA must give written notice of the ACA’s decision whether to approve a draft policy statement, or draft standard marketing plan, given to the ACA by an applicant for approval as a competing universal service provider.
(2) If the ACA refuses to approve the draft, the ACA must give the applicant written notice of the reasons for that refusal.
(3) A copy of a notice under subsection (1), if the decision is to approve the draft, must be published in the Gazette.
Subdivision D—ATS marketing plans of competing universal service providers
13M Meaning of expressions
(1) A draft ATS marketing plan for an applicant for approval as a competing universal service provider for a universal service area in respect of a contestable service obligation is a plan that sets out:
(a) the alternative telecommunications services that the applicant will supply in fulfilment of that contestable service obligation, so far as it relates to that area; and
(b) the arrangements for supplying and marketing those services.
(2) A draft ATS marketing plan that has been approved by the ACA under section 13Q, and that is in force, is an approved ATS marketing plan for the applicant or competing universal service provider concerned.
(3) Each draft or approved ATS marketing plan must cover only one universal service area and only one contestable service obligation. However, the ACA may determine in writing that this subsection does not apply to:
(a) draft or approved ATS marketing plans generally; or
(b) a draft or approved ATS marketing plan of a particular applicant or competing universal service provider.
(4) A copy of a determination made under subsection (3) must be published in the Gazette.
13N Minister may determine requirements for drafts
(1) The Minister may determine in writing requirements for draft ATS marketing plans of competing universal service providers.
(2) These are some examples of requirements:
(a) timeframes for the supply of specified equipment, goods or services;
(b) performance standards relating to the fulfilment of the universal service obligation;
(c) processes for advising persons about the availability, offer and supply of equipment, goods or services in the fulfilment of the universal service obligation, and the terms and conditions on which the equipment, goods or services are offered or supplied;
(d) the form of a draft ATS marketing plan.
(3) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
13P Public consultation required on draft ATS marketing plan
(1) Before deciding whether to approve a draft ATS marketing plan, the ACA must require the applicant concerned:
(a) to publish a preliminary version of the draft and invite members of the public to make submissions to the applicant about the preliminary version within a specified period (which must be at least 30 days); and
(b) to give consideration to any submissions received from members of the public within that period; and
(c) to advise the ACA on those submissions and any changes made to the draft as a result.
(2) Subsection (1) applies only if a draft ATS marketing plan is materially different from an ATS marketing plan previously approved by the ACA.
13Q Approval of draft ATS marketing plan
(1) The ACA must approve, or refuse to approve, a draft ATS marketing plan that an applicant for approval as a competing universal service provider gives to the ACA.
(2) The ACA must not approve the draft unless it is satisfied that:
(a) the draft specifies appropriate equipment, goods or services that the applicant will supply in supplying the alternative telecommunications services; and
(b) the draft adequately deals with how the applicant will supply alternative telecommunications services in fulfilment of the contestable service obligation concerned, so far as it relates to the universal service area concerned; and
(c) the alternative telecommunications services are of general appeal and are appropriate for fulfilling that contestable service obligation, so far as it relates to that area; and
(d) the draft sets out appropriate terms and conditions on which the equipment, goods or services are to be supplied; and
(e) the draft sets out appropriate arrangements for the marketing of the supply of the equipment, goods or services to persons within that area; and
(ea) the draft includes a requirement that, before entering into an agreement to supply a person with alternative telecommunications services, the provider must give to the person information about the substantive differences between:
(i) what is to be supplied under the draft in fulfilment of the service obligation concerned, so far as it relates to the area concerned; and
(ii) what would be supplied under the approved standard marketing plan of the relevant primary universal service provider in fulfilment of the same service obligation, so far as it relates to the same area; and
(f) the draft sets out appropriate procedures that the applicant will comply with if the applicant ceases:
(i) to supply any of the equipment, goods or services; or
(ii) to fulfil that contestable service obligation, so far as it relates to that area;
including the giving of at least 45 days’ notice to the ACA, or such other notice as the ACA determines in writing is adequate; and
(g) the requirements of section 13P have been met.
(3) In deciding whether to approve the draft, the ACA must also have regard to:
(a) whether the draft complies with the requirements (if any) under section 13N; and
(b) any other matters determined in writing by the Minister for the purposes of this paragraph; and
(c) any other matters the ACA considers relevant.
(4) A copy of a determination made for the purposes of paragraph (2)(f) or (3)(b) must be published in the Gazette.
13R Notice of decision
(1) The ACA must give the applicant written notice of the ACA’s decision on whether to approve the draft ATS marketing plan.
(2) If the ACA refuses to approve the draft, the ACA must give the applicant written notice of the reasons for that refusal.
(3) A copy of a notice under subsection (1) must be published in the Gazette, if the decision is to approve the draft.
Subdivision E—Replacement, variation and revocation of policy statements, standard marketing plans and ATS marketing plans
13S Replacement of approved policy statement, approved standard marketing plan or approved ATS marketing plan
(1) An approved policy statement for a competing universal service provider ceases to be in force if a later draft policy statement, that is expressed to replace it, becomes an approved policy statement.
(2) An approved standard marketing plan for a competing universal service provider ceases to be in force if a later draft standard marketing plan, that is expressed to replace it, becomes an approved standard marketing plan.
(3) An approved ATS marketing plan for a competing universal service provider ceases to be in force if a later draft ATS marketing plan, that is expressed to replace it, becomes an approved ATS marketing plan.
13T Variation of approved policy statement, approved standard marketing plan or approved ATS marketing plan
(1) This section applies if:
(a) an approved policy statement for a competing universal service provider (the current statement) is in force; or
(b) an approved standard marketing plan for a competing universal service provider (the current plan) is in force; or
(c) an approved ATS marketing plan for a competing universal service provider (the current plan) is in force;
and the provider gives the ACA a draft variation of the current statement or current plan.
(2) The ACA must:
(a) approve the variation; or
(b) refuse to approve the variation.
(3) Before deciding whether to approve the variation, the ACA may, if the ACA considers it appropriate, require the provider:
(a) to publish a preliminary version of the draft variation and invite members of the public to make submissions to the provider about the preliminary version within a specified period; and
(b) to give consideration to any submissions from members of the public received within that period; and
(c) to advise the ACA on those submissions and any changes made to the draft variation as a result.
(4) The ACA must not approve the variation unless it is satisfied that:
(a) in the case of a draft variation of an approved policy statement—if the provider were to give the ACA a draft policy statement in the same terms as the current statement as varied, the ACA would approve that draft; or
(b) in the case of a draft variation of an approved standard marketing plan—if the provider were to give the ACA a draft standard marketing plan in the same terms as the current plan as varied, the ACA would approve that draft; or
(c) in the case of a draft variation of an approved ATS marketing plan—if the provider were to give the ACA a draft ATS marketing plan in the same terms as the current plan as varied, the ACA would approve that draft.
13U Notice of decision
(1) After deciding whether to approve a variation under section 13T, the ACA must give a written notice setting out the decision to the provider concerned.
(2) If the ACA refuses to approve the variation, the ACA must give a written notice setting out the reasons for the refusal to the provider.
(3) If the ACA approves the variation:
(a) the current statement or plan is varied accordingly; and
(b) a copy of the notice given to the provider must be published in the Gazette, unless the variation is only of a minor technical nature.
13V Minister may revoke approved ATS marketing plan
(1) The Minister may, by giving written notice to a competing universal service provider, revoke the provider’s approved ATS marketing plan if the Minister considers that it is in the public interest to do so. A copy of the notice must be given to the ACA.
(2) An approved ATS marketing plan that is revoked by the Minister ceases to be in force when the revocation takes effect.
(3) The revocation takes effect on the day specified in the notice which must be on or after the day on which the notice is given to the provider.
(4) The Minister may determine in writing arrangements to deal with issues of a transitional nature that may arise as a result of the revocation. A copy of the determination must be:
(a) given to the provider; and
(b) published in the Gazette.
(5) The provider must comply with the arrangements (if any) in a determination under subsection (4).
Division 7—Determination of alternative arrangements for fulfilling the universal service obligation
14 Determination of alternative arrangements
(1) The Minister may determine in writing that specified alternative arrangements apply to a universal service area in respect of a service obligation (whether or not it is a contestable service obligation).
(2) A determination under subsection (1) may expressly modify:
(a) the extent to which the default arrangements set out in Division 5 apply to the area; or
(b) the way in which any of the provisions in this Part apply to the area.
(3) The Minister must give to the ACA a copy of each determination made under this section.
(4) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(5) In this section:
modify includes excluding the application of a provision entirely, as well as omitting, adding and substituting provisions.
14A Effect of determination
(1) A determination under section 14 takes effect on the day specified in the determination. That day must not be before the day on which notice of the determination is published in the Gazette.
(2) If a determination under section 14 is expressed to cease to have effect at a specified time, the determination ceases to have effect at that time.
(3) A variation or revocation of a determination under section 14 takes effect on the day specified for the purpose in the instrument of variation or revocation. That day must not be before notice of the instrument is published in the Gazette.
(4) If the Minister revokes a determination under section 14, the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the revocation.
(5) A copy of a determination under subsection (4) must be published in the Gazette.
Division 8—Digital data service providers
Subdivision A—General
15 Digital data service providers
(1) The Minister may make a written determination stating that a specified carrier or carriage service provider is a general digital data service provider for a specified general digital data service area.
(2) The Minister may make a written determination stating that a specified carrier or carriage service provider is a special digital data service provider for a specified special digital data service area.
(3) In deciding whether to make a determination under subsection (1) or (2) in relation to a person and an area, the Minister is limited to considering factors that are relevant to achieving the objects of this Act.
(4) A determination under subsection (1) or (2) has effect accordingly.
(5) A determination under subsection (1) or (2) takes effect on the day specified in it. That day must not be before the day on which the notice of the determination is published in the Gazette.
(6) A revocation of a determination under subsection (1) or (2) takes effect on the day specified in the instrument of revocation. That day must not be before the day on which notice of the instrument is published in the Gazette.
(7) If:
(a) a determination is in force under subsection (1) or (2) in relation to a particular carrier; and
(b) at a particular time, the carrier ceases to hold a carrier licence;
the determination ceases to be in force at that time.
(8) If:
(a) a determination is in force under subsection (1) or (2) in relation to a particular carriage service provider that is not a carrier; and
(b) at a particular time, the carriage service provider ceases to be such a provider;
the determination ceases to be in force at that time.
(9) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
15A Effect of digital data service provider determination
(1) A digital data service provider in relation to a particular service area is a digital data service provider:
(a) for that area; and
(b) for each service area that is within that area.
(2) For the purposes of this Part, a person in relation to whom a determination is in force under subsection 15(1) or (2) at any time during a claim period is a digital data service provider for the claim period.
(3) For the purposes of this Part, the areas for which a person is a digital data service provider are taken to be a single area.
(4) A general digital data service provider for a general digital data service area must take all reasonable steps to fulfil the general digital data service obligation, so far as the obligation relates to that area.
(5) A special digital data service provider for a special digital data service area must take all reasonable steps to fulfil the special digital data service obligation, so far as the obligation relates to that area.
15B Former digital data service provider may be required to provide information to current digital data service provider
(1) This section applies if:
(a) the Minister determines under section 15 that a carrier or carriage service provider (the current provider) is a digital data service provider for a particular area (the relevant area); and
(b) another person, who is or was a digital data service provider for some or all of the relevant area, is determined to be a former provider under subsection (4).
(2) This section also applies if:
(a) either:
(i) the Minister revokes or varies a determination under section 15 so that a person (the former provider) ceases to be a digital data service provider for a digital data service area (the relevant area); or
(ii) a person otherwise ceases to be a digital data service provider for a particular area (the relevant area); and
(b) a person (the current provider), who was also a digital data service provider for some or all of the relevant area, continues to be a digital data service provider for some or all of the area:
(i) if subparagraph (a)(i) applies—after the revocation or variation; or
(ii) if subparagraph (a)(ii) applies—after the cessation.
(3) Subsections (1) and (2) can apply before the determination, revocation or variation under section 15 or the cessation takes effect.
(4) The Minister may determine in writing that a person is a former provider for the purposes of this section.
(5) The current provider may, by written notice given to the former provider, require the former provider to give to the current provider specified information of the kind referred to in subsection (6). A notice of this kind cannot be given more than 6 months after:
(a) if subsection (1) applies—the later of the following days:
(i) the day on which the current provider became a digital data service provider for the relevant area; or
(ii) the day on which the determination under subsection 15(1) or (2) was made in respect of the current provider; or
(b) if subsection (2) applies—the day on which the former provider ceases to be a digital data service provider for the relevant area.
(6) The information that may be required to be given must be information that will assist the current provider in doing something that the current provider is or will be required or permitted to do by or under a provision of this Part. The notice must identify the doing of that thing as the purpose for which the information is required.
Note 1: If, for example, information about service location and customer contact details will assist the current provider in fulfilling its obligation under subsection 15A(4) or (5), the former provider may be required to provide that kind of information.
Note 2: See also subsection (8), which allows the Minister to determine that a specified kind of information is information referred to in this subsection.
(7) If a requirement made by a notice under subsection (5) is reasonable, the former provider must comply with the requirement as soon as practicable after receiving the notice. However, if the requirement is unreasonable, the former provider does not have to comply with it.
(8) The Minister may make a written determination to the effect that, either generally or in a particular case, information of a kind specified in the determination is taken to be information that will assist a person in doing a specified thing that the person is or will be required or permitted to do by or under a provision of this Part. The determination has effect accordingly.
(9) If a former provider has been given notice of a requirement under subsection (5), the ACA may, in writing, direct the former provider to comply with the requirement or with specified aspects of the requirement. The former provider must comply with the direction.
(10) In deciding whether to give a direction under subsection (9), the ACA must consider whether the requirement under subsection (5) is reasonable.
(11) A determination under subsection (8) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Subdivision B—Digital data service plans
15C Digital data service provider must submit draft digital data service plan
(1) A digital data service provider for a particular area must give the Minister a draft digital data service plan for that area.
(2) The provider must give the Minister the plan within 90 days after the provider became a digital data service provider for that area.
15D Digital data service plans
A draft or approved digital data service plan for an area is a plan that sets out how a digital data service provider for that area will progressively fulfil:
(a) if that area is a general digital data service area—the general digital data service obligation (in so far as the obligation relates to that area); or
(b) if that area is a special digital data service area—the special digital data service obligation (in so far as the obligation relates to that area).
Note: An approved digital data service plan is a draft digital data service plan that has been approved by the Minister.
15E Replacement of approved digital data service plan
If an approved digital data service plan (the original plan) for an area is in force, a draft digital data service plan for the area may be expressed to replace the original plan. When the draft plan becomes an approved digital data service plan, the original plan ceases to be in force.
15F Approval of draft digital data service plan by Minister
(1) If a digital data service provider gives the Minister a draft digital data service plan, the Minister must:
(a) approve the draft plan; or
(b) refuse to approve the draft plan.
(2) If the Minister approves the draft plan, the draft plan becomes an approved digital data service plan.
(3) If the Minister refuses to approve the draft plan, the Minister may, by written notice given to the provider, direct the provider to give the Minister, within the period and in the terms specified in the direction, a fresh draft digital data service plan for the area concerned. The provider must comply with the direction.
15G Public consultation—draft plan
(1) Before giving the Minister a draft digital data service plan under section 15F, a digital data service provider must:
(a) publish a preliminary version of the draft plan and invite members of the public to make submissions to the provider about the preliminary version within a specified period; and
(b) give consideration to any submissions received from members of the public within that period.
(2) The period specified in the invitation must run for at least 30 days.
(3) This section does not apply to a draft plan given to the Minister in accordance with a direction under subsection 15F(3).
(4) This section does not apply to a draft plan given to the Minister in accordance with a notice under paragraph 15N(2)(b).
15H Minister to have regard to certain matters
(1) In deciding whether to approve a draft digital data service plan for a general digital data service area or a special digital data service area, the Minister must have regard to whether:
(a) the draft plan provides for the general digital data service obligation, or special digital data service obligation, (so far as it relates to that area) to be fulfilled:
(i) as efficiently and economically as practicable; and
(ii) at performance standards that reasonably meet the social, industrial and commercial needs of the Australian community; and
(iii) progressively throughout that area within such period as the Minister considers reasonable; and
(aa) the draft plan addresses the needs of people with a disability; and
(b) the draft plan complies with any requirements in force under section 15J.
(2) Subsection (1) does not, by implication, limit the matters to which regard may be had.
15J Minister may formulate requirements for draft plans
(1) The Minister may, by writing, formulate requirements for draft digital data service plans.
(2) The following are examples of requirements:
(a) timetables for the supply of services;
(b) performance standards relating to the fulfilment of the digital data service obligation;
(c) the form of a draft digital data service plan.
(3) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
15K Notification of decision
(1) After deciding whether to approve a draft digital data service plan for an area, the Minister must give a written notice setting out the decision to:
(a) the digital data service provider concerned; and
(b) the ACA.
(2) A copy of a notice under subsection (1) must be published in the Gazette.
(3) If the Minister refuses to approve a draft digital data service plan for an area, the Minister must give a written notice setting out the reasons for the refusal to the digital data service provider concerned.
15L Variation of approved digital data service plan
(1) This section applies if:
(a) an approved digital data service plan for an area (the current plan) is in force; and
(b) the digital data service provider concerned gives the Minister a draft variation of the plan.
(2) The Minister must:
(a) approve the variation; or
(b) refuse to approve the variation.
(3) Before deciding whether to approve the variation, the Minister may, if he or she considers it appropriate, require the provider:
(a) to publish a preliminary version of the draft variation and invite members of the public to make submissions to the provider about the preliminary version within a specified period; and
(b) to give consideration to any submissions from members of the public received within that period; and
(c) to advise the Minister on those submissions and any changes made to the draft variation as a result.
(4) The Minister must not approve the variation unless the Minister is satisfied that, if the provider were to give the Minister a draft digital data service plan in the same terms as the current plan as proposed to be varied, the Minister would approve that draft.
15M Notice of decision on variation
(1) After deciding whether to approve a draft variation of an approved digital data service plan, the Minister must give a written notice setting out the decision to both the digital data service provider concerned and the ACA.
(2) A copy of the notice must be published in the Gazette.
(3) If the Minister refuses to approve the variation, the Minister must give a written notice setting out the reasons for the refusal to the provider.
(4) If the Minister approves the variation, the current plan is varied accordingly.
(5) The Minister must give to the ACA a copy of each variation approved under section 15L.
15N Minister may direct variation or replacement of plan
(1) This section applies if an approved digital data service plan (the current plan) for an area is in force.
(2) The Minister may give the digital data service provider concerned a written notice requiring the provider:
(a) within the period and in the terms set out in the notice, to give the Minister a draft variation of the current plan; or
(b) within the period and in the terms set out in the notice, to give the Minister a fresh draft digital data service plan for the area that is expressed to replace the current plan.
(3) The provider must comply with the notice.
15P Compliance with approved digital data service plan
If an approved digital data service plan is in force, the general digital data service provider, or special digital data service provider, concerned must take all reasonable steps to ensure that the plan is complied with.
Division 9—Universal service subsidy
16 Determination of universal service subsidy
(1) Before the end of a claim period, the Minister must determine in writing one or more universal service subsidies for the period. A copy of a determination under this subsection must be published in the Gazette.
(2) The Minister must ensure that there is a subsidy for each universal service area in respect of each service obligation. A subsidy may cover one or more universal service areas in respect of one or more service obligations.
(3) A determination under this section must specify:
(a) the amount, or a method for working out the amount, of the subsidy; and
(b) the circumstances in which a universal service provider for the claim period is eligible to be paid the subsidy.
(4) The circumstances that may be specified include, but are not limited to:
(a) whether the subsidy is payable to a primary universal service provider or a competing universal service provider; and
(b) the types or amount of equipment, goods or services that are supplied to persons in a universal service area.
(5) The determination must specify that a subsidy is only payable to a universal service provider who complies with the provider’s obligations under section 12C or 13D (whichever is applicable).
(6) A determination may specify an amount of subsidy as zero.
16A Minister must seek ACA’s advice
(1) Before making or varying a determination under section 16, the Minister must direct the ACA to give the Minister advice about the proposed determination or variation. However, this subsection does not apply to a proposed variation of a minor technical nature.
(2) The ACA must comply with the direction.
(3) If the Minister has received advice from the ACA about a proposed determination or variation and does not make the determination or variation in accordance with the advice, the Minister must ensure that a notice of his or her reasons for departing from the advice:
(a) is published in the Gazette within 14 days after making the determination or variation; and
(b) is laid before each House of the Parliament within 5 sitting days of that House after making the determination or variation.
(4) Subsection (1) does not, by implication, limit the Minister’s powers under section 486 of the Telecommunications Act 1997 (which deals with public inquiries).
16B Effect of the determination
(1) A determination under section 16 takes effect on the day specified in the determination (which may be before, on or after the day on which the determination is made).
(2) A determination under section 16 applies for the period specified in the determination, which must not be longer than 3 years.
(3) A variation or revocation of such a determination takes effect on the day specified for the purpose in the instrument of variation or revocation (which may be before, on or after the day on which the instrument is made).
Division 10—Digital data cost of digital data service providers
17 Digital data cost of a digital data service provider for a claim period
(1) A person’s digital data cost for a claim period depends on which of the following paragraphs is applicable for that claim period:
(a) if:
(i) the person is a digital data service provider for that claim period; and
(ii) a determination is in force under subsection (4) in relation to that claim period;
the person’s digital data cost for the claim period is worked out in accordance with the determination;
(b) if:
(i) the person is a digital data service provider for that claim period; and
(ii) no determination is in force under subsection (4) in relation to that claim period;
then:
(iii) if the amount worked out using the formula in subsection (2) is greater than zero—the person’s digital data cost for the claim period is equal to that amount; or
(iv) if the amount worked out using the formula in subsection (2) is not greater than zero—the person’s digital data cost for the claim period is zero.
Note: The digital data cost is needed for the purposes of making a claim for levy credit for a claim period (see section 20J).
(2) The formula referred to in paragraph (1)(b) is as follows:
where:
customer charges means the total amount payable by persons in the area referred to in subsection (3) by way of charges for the supply by the person during the claim period of customer equipment covered by paragraph (3)(a).
customer equipment costs means the person’s customer equipment costs for the claim period.
supplementary amount means the amount (if any) specified in, or ascertained in accordance with, regulations made for the purposes of this definition.
(3) For the purposes of this section, if a person is a digital data service provider for an area for a claim period, the person’s customer equipment costs for the claim period is an amount equal to the sum of:
(a) the total costs incurred by the person in acquiring customer equipment that:
(i) is covered by a determination that was in force under section 19A during the claim period in relation to charges imposed, or proposed to be imposed, by the person for the supply of customer equipment of a kind specified in regulations made for the purposes of paragraph 10F(1)(a) or 10G(1)(a); and
(ii) was supplied by the person during the claim period to persons in the area; and
(b) the total rebates that became payable during the claim period by the person, in accordance with regulations made for the purposes of subsection 10D(1), in respect of customer equipment acquired or hired by persons in the area.
(4) The Minister may make a written determination specifying a method of ascertaining an amount for the purposes of paragraph (1)(a).
(5) The amount worked out under such a determination may be zero.
(6) A copy of a determination under subsection (4) must be published in the Gazette.
17A Reduction of excessive costs
(1) The Minister may, by written instrument, formulate principles or rules that are to be applied in determining the extent (if any) to which costs are to be treated as excessive for the purposes of subsection 17(3).
(2) For the purposes of the application of subsection 17(3) in relation to a particular claim period, if:
(a) a person has incurred costs of a kind mentioned in paragraph 17(3)(a); and
(b) the costs are treated, under the principles or rules in force under subsection (1), as excessive to any extent;
the amount of the costs is to be reduced by the amount of the excess.
(3) An instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Division 11—Regulation of universal service charges
18 Universal service charges
(1) This section applies if a person is the universal service provider for a universal service area.
(2) For the purposes of this Division, a universal service charge is a charge imposed, or proposed to be imposed, by the person for:
(a) the supply of standard telephone services to persons in the area; or
(b) calls made from payphones in the area; or
(c) the supply of prescribed carriage services to persons in the area.
18A Determination subjecting universal service charges to price control arrangements
(1) The Minister may, by notice published in the Gazette, determine that specified universal service charges are subject to price control arrangements under this Division.
(2) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
18B Price control determinations
(1) This section applies if a determination is in force under section 18A in relation to a particular universal service charge.
(2) The Minister may make a written determination setting out:
(a) price‑cap arrangements and other price control arrangements that are to apply in relation to the charge; or
(b) principles or rules in accordance with which the universal service provider may impose or alter the charge;
or both.
(3) A determination under subsection (2) has effect accordingly and takes effect on the day specified in the determination which must be on or after notice of the determination is published in the Gazette.
(4) A determination under subsection (2) may make different provision with respect to different customers. This section does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
(5) A determination under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
18C Content of price control determinations
(1) A determination under section 18B relating to a universal service charge may:
(a) prohibit the charge from being imposed or altered without the Minister’s consent; or
(b) prohibit the charge from being imposed or altered without the ACCC’s consent; or
(c) prohibit the charge from being imposed or altered without prior notice being given to the Minister; or
(d) prohibit the charge from being imposed or altered without prior notice being given to the ACCC; or
(e) empower the Minister to direct the ACCC to give the Minister such reports and advice as the Minister requires for the purposes of assisting the Minister in deciding whether to give a consent in accordance with the determination.
(2) Subsection (1) does not, by implication, limit section 18B.
18D Price control determinations subject to determinations under Part 9
(1) This section applies if a determination under subsection 154(1) or 157(1) is in force in relation to a charge imposed, or proposed to be imposed, by Telstra.
(2) A determination under this Division is of no effect so far as it relates to that charge.
18E Compliance with price control determinations
A universal service provider must comply with a determination in force under this Division.
Division 12—Regulation of digital data service charges
19 Digital data service charges
(1) For the purposes of this Division, if a person is a general digital data service provider for a particular area, a digital data service charge is a charge imposed, or proposed to be imposed, by the person for the supply of general digital data services to persons in the area.
(2) For the purposes of this Division, if a person is a special digital data service provider for a particular area, a digital data service charge is a charge imposed, or proposed to be imposed, by the person for the supply of special digital data services to persons in the area.
19A Determination subjecting digital data service charges to price control arrangements
(1) The Minister may, by notice published in the Gazette, determine that specified digital data service charges are subject to price control arrangements under this Division.
(2) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
19B Price control determinations
(1) This section applies if a determination is in force under section 19A in relation to a particular digital data service charge.
(2) The Minister may make a written determination setting out:
(a) price‑cap arrangements and other price control arrangements that are to apply in relation to the charge; or
(b) principles or rules in accordance with which the digital data service provider may impose or alter the charge;
or both.
(3) A determination under subsection (2) has effect accordingly and takes effect on the day specified in the determination which must be on or after notice of the determination is published in the Gazette.
(4) A determination under subsection (2) may make different provision with respect to different customers. This section does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.
(5) A determination under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
19C Content of price control determinations
(1) A determination under section 19B relating to a digital data service charge may:
(a) prohibit the charge from being imposed or altered without the Minister’s consent; or
(b) prohibit the charge from being imposed or altered without the ACCC’s consent; or
(c) prohibit the charge from being imposed or altered without prior notice being given to the Minister; or
(d) prohibit the charge from being imposed or altered without prior notice being given to the ACCC; or
(e) empower the Minister to direct the ACCC to give the Minister such reports and advice as the Minister requires for the purposes of assisting the Minister in deciding whether to give a consent in accordance with the determination.
(2) Subsection (1) does not, by implication, limit section 19B.
19D Price control determinations subject to determinations under Part 9
(1) This section applies if a determination under subsection 154(1) or 157(1) is in force in relation to a charge imposed, or proposed to be imposed, by Telstra.
(2) A determination under this Division is of no effect so far as it relates to that charge.
19E Compliance with price control determinations
A digital data service provider must comply with a determination in force under this Division.
Division 13—Assessment, collection, recovery and distribution of levy
Subdivision A—Eligible revenue of participating persons
20 Participating person must lodge return of eligible revenue
(1) A participating person for an eligible revenue period must give the ACA a written return of the person’s eligible revenue for that period.
(2) The return must be:
(a) given to the ACA within the period specified in writing by the ACA for providing returns; and
(b) in a form approved in writing by the ACA.
The approved form may require verification, by a statutory declaration, of statements made in the return.
(3) The return must set out:
(a) the eligible revenue for the eligible revenue period of the participating person; and
(b) details of how the eligible revenue was worked out; and
(c) such other information (if any) as the approved form of return requires.
Note: It is an offence to make a false or misleading statement in connection with the operation of this Act (see section 578 of the Telecommunications Act 1997).
20A Who is a participating person?
(1) For the purposes of this Act, a person is a participating person for an eligible revenue period if:
(a) the person was a carrier at any time during the eligible revenue period; or
(b) the Minister makes a written determination that carriage service providers are participating persons for the eligible revenue period and the person was a carriage service provider at any time during the eligible revenue period.
(2) However, a person is not a participating person for an eligible revenue period if:
(a) the person’s gross telecommunications revenue for the eligible revenue period is less than the amount determined in writing by the Minister for the purposes of this paragraph; or
(b) the person is of a kind, determined in writing by the Minister for the purposes of this paragraph, to be exempt from this section.
(3) A determination made for the purposes of subsection (1), or paragraph (2)(a) or (b), is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(4) In this section:
gross telecommunications revenue for an eligible revenue period has the meaning given by the determination made for the purposes of paragraph (2)(a).
20B What is eligible revenue?
(1) For the purposes of this Part, a participating person’s eligible revenue for an eligible revenue period is the amount that is taken to be the person’s eligible revenue for that period in accordance with a determination in writing made by the ACA for the purposes of this subsection.
(2) To avoid doubt, the determination may, in providing the amount that is taken to be a person’s eligible revenue, refer to revenue of other persons.
(3) The ACA is, immediately after the commencement of Schedule 1 to the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000, taken to have made a determination under subsection (1) in the same terms as the regulations that were referred to in section 17 of this Act, and in force, immediately before that commencement.
(4) A determination under this section, other than a determination taken to have been made because of subsection (3), is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
20C What is an eligible revenue period?
(1) For the purposes of this Act, an eligible revenue period is:
(a) the 1999‑2000 financial year and each later financial year; or
(b) if the Minister determines in writing another period—that other period.
(2) If the Minister determines another period, the Minister may, in the determination, modify the way in which this Part applies to participating persons. The modifications may include additions, omissions and substitutions.
(3) A determination under paragraph (1)(b) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
20D Audit report of eligible revenue return
(1) An eligible revenue return given to the ACA under section 20 must be accompanied by a report of an approved auditor that:
(a) is in a form approved in writing by the ACA; and
(b) states that the auditor has audited the return; and
(c) contains a determination, in the terms specified in the form, of the auditor’s opinion; and
(d) states that the auditor has been given sufficient information and assistance in order to audit the return; and
(e) includes all other statements and information required by the form to be included.
(2) However, the Minister may, by making a written determination, modify the requirements in subsection (1), including by omitting, adding or substituting requirements.
(3) This section does not apply to a person if the ACA gives written notice to the person to that effect.
(4) A copy of a determination under subsection (2) must be published in the Gazette.
20E ACA may inquire into correctness of return
The ACA may make whatever inquiries it thinks necessary or desirable in order to determine whether or not a participating person’s eligible revenue return for an eligible revenue period correctly states the person’s eligible revenue for that period.
20F ACA to assess eligible revenue
(1) The ACA must make a written assessment of each participating person’s eligible revenue for an eligible revenue period.
Note: The assessment may be included in the same document as any other assessment the ACA makes under this Part (see section 20Y).
(2) A person’s eligible revenue:
(a) must be assessed as zero if the person’s eligible revenue is less than the amount (the threshold amount) determined in writing by the Minister for the purposes of this subsection; or
(b) in any other case—must be reduced by the threshold amount.
(3) Subject to section 20G and subsection (2), the assessment must be based on:
(a) the person’s eligible revenue return; and
(b) the information and documents obtained by the ACA because of its inquiries into the correctness of the return; and
(c) any other information or documents that the ACA has and that it thinks relevant to making the assessment.
(4) A determination made for the purposes of subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(5) The ACA must give a copy of an assessment of a person’s eligible revenue to the person concerned.
20G Assessment based on estimate of eligible revenue
(1) If a participating person fails to give the ACA an eligible revenue return for an eligible revenue period, the ACA may:
(a) estimate the person’s eligible revenue for that period; and
(b) make a written assessment under section 20F of the person’s eligible revenue for that period based on that estimate (but taking into account subsection 20F(2)).
(2) The ACA must give at least 14 days’ notice to the person of the ACA’s proposal to make the assessment based on the estimate, and of the amount of eligible return proposed to be assessed. The notice must be in writing.
(3) The ACA must not make an assessment based on an estimate after receiving an eligible revenue return for the period from the person concerned.
(4) However, if the ACA has made an assessment based on the estimate, the ACA is not required to change it if an eligible revenue return is later given to the ACA.
20H Levy contribution factor
(1) After the ACA has assessed the eligible revenue of participating persons for an eligible revenue period, the ACA must work out a levy contribution factor for the period for each of those persons.
Note: The levy contribution factor is used to work out the levy debit of a participating person. See section 20R.
(2) The levy contribution factor for an eligible revenue period is the amount worked out using the following formula:
where:
individual eligible revenue means the assessed eligible revenue of the participating person for the eligible revenue period.
total eligible revenue means the total assessed eligible revenue for the eligible revenue period of all the participating persons for the period.
Subdivision B—Levy credits
20J Claims for levy credit
(1) Within the period of 45 days after the end of a claim period, or such other period as is determined in writing by the Minister, a carrier or carriage service provider who is a:
(a) universal service provider; or
(b) a digital data service provider;
for the claim period may give to the ACA a claim for a levy credit for that period.
(2) A person’s levy credit for a claim period is the total of:
(a) all amounts of universal service subsidy to which the person is entitled for the period; and
(b) the person’s digital data cost for the period.
(3) A claim must be in a form approved in writing by the ACA, and must include:
(a) in the case of a universal service provider—details of:
(i) the provider’s entitlement to universal service subsidy for the claim period; and
(ii) how that entitlement has been worked out; and
(b) in the case of a digital data service provider—details of:
(i) the person’s digital data cost for the claim period; and
(ii) how that amount has been worked out.
The claim must include such other information (if any) as is required by the approved form.
(4) The approved form may require verification, by a statutory declaration, of statements in the claim.
(5) A copy of a determination made under subsection (1) must be published in the Gazette.
Note: It is an offence to make a false or misleading statement in connection with the operation of this Act (see section 578 of the Telecommunications Act 1997).
20K Audit report of claim
(1) A claim must be accompanied by a report of an approved auditor that:
(a) is in a form approved in writing by the ACA; and
(b) states that the auditor has audited the claim; and
(c) contains a determination, in the terms specified in the form, of the auditor’s opinion; and
(d) states that the auditor has been given sufficient information and assistance in order to audit the claim; and
(e) includes all other statements and information required by the form to be included.
(2) However, the Minister may, by making a written determination, modify the requirements in subsection (1), including by omitting, adding or substituting requirements.
(3) This section does not apply to a person if the ACA gives written notice to the person to that effect.
(4) A copy of a determination under subsection (2) must be published in the Gazette.
20L ACA to publish claims or a summary of claims
(1) Within 14 days after the end of the period for making claims for levy credit for a claim period, the ACA must publish on the Internet or by any other means that the ACA considers appropriate:
(a) a copy of each claim made under section 20J in respect of the claim period; or
(b) a summary of all the claims made under that section in respect of the claim period.
(2) In this section:
claim includes a variation of a claim.
20M ACA may inquire into correctness of claim
The ACA may make whatever inquiries it thinks necessary or desirable in order to determine:
(a) whether or not a claim by a universal service provider for a levy credit for a claim period correctly states the provider’s entitlement to universal service subsidy for the period; or
(b) whether or not a claim by a digital data service provider for a levy credit for a claim period correctly states the amount of the digital data cost of the provider for the period.
20N ACA to assess levy credit
(1) The ACA must make a written assessment, in respect of each person who submits a claim for levy credit for a claim period in accordance with section 20J, of the person’s levy credit for that period.
Note: The assessment may be included in the same document as any other assessment the ACA makes under this Part (see section 20Y).
(2) The assessment must set out:
(a) if the person is a universal service provider for the claim period—the universal service subsidy to which the person is entitled for that period; and
(b) if the person is a digital data service provider for the claim period—the person’s digital data cost for that period.
(3) The assessment must be based on:
(a) the claim lodged by the person; and
(b) the information and documents obtained by the ACA because of its inquiries into the correctness of the claim; and
(c) any other information or documents that the ACA has and that it thinks relevant to making the assessment.
(4) The ACA must give a copy of the assessment to the person concerned.
20P Principles for assessing and adjusting claims
(1) The Minister may determine in writing principles that are to be applied in assessing (including adjusting) claims for a levy credit. The principles apply from the date specified in the determination.
(2) Before making the determination, the Minister must invite all affected carriers and carrier service providers to make submissions within a specified period to the Minister about the proposed principles. The period specified must be reasonable.
(3) The ACA must apply the principles (if any) made by the Minister under this section in making assessments under this Part.
(4) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Subdivision C—Entitlement to levy distributions and liability for levy
20Q No levy payable unless at least one claim for a levy credit is made
If no claim for a levy credit for a claim period has been made under section 20J within the period for making such claims, no person is liable to pay an amount of levy in respect of that period.
20R Levy debit of a participating person
(1) For each claim period, the ACA must work out a levy debit for each participating person for the last eligible revenue period that ended before the start of the claim period.
(2) The levy debit is the amount worked out using the formula:
where:
levy contribution factor means the person’s levy contribution factor for that eligible revenue period worked out under section 20H.
total levy credits means the total of all the levy credits to which persons are entitled for that claim period.
(3) The Minister may, by written determination, modify the formula in subsection (2).
Note: The Minister may, for example, increase the amount of total levy credits to take account of the possibility of defaults in the payment of levy for a claim period.
(4) A determination under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
20S Levy debit balance
If a person’s levy debit (if any) under section 20R for a claim period exceeds the person’s assessed levy credit (if any) under section 20N for the claim period, then:
(a) the person has a levy debit balance for the period; and
(b) the amount of that balance is the amount of the excess.
20T Levy credit balance
If a person’s assessed levy credit (if any) under section 20N for a claim period exceeds the person’s levy debit under subsection 20R for the claim period, then:
(a) the person has a levy credit balance for the period; and
(b) the amount of that balance is the amount of the excess.
20U ACA to make written assessment
(1) For each claim period, the ACA must make a written assessment setting out:
(a) the matters in subsections (2), (3) and (4); and
(b) the total of all levy credits to which persons are entitled for the claim period.
(2) For each participating person for the last eligible revenue period that ended before the start of the claim period, the assessment must set out:
(a) the person’s levy debit under section 20R for the claim period; and
(b) the person’s levy debit balance (if any) under section 20S for the claim period; and
(c) if the person has a levy debit balance—the levy payable by the person on that balance.
Note: Section 20Z sets out when the levy is payable.
(3) For each universal service provider for the claim period, the assessment must set out:
(a) the universal service subsidy to which the ACA assesses the provider is entitled for the claim period; and
(b) the provider’s levy credit balance (if any) under section 20T for the claim period; and
(c) if the provider has a levy credit balance—the amount payable to the provider under section 21C for the claim period.
(4) For each digital data service provider for the claim period, the assessment must set out:
(a) the provider’s digital data cost for the claim period; and
(b) the provider’s levy credit balance (if any) under section 20T for the claim period; and
(c) if the provider has a levy credit balance—the amount payable to the provider under section 21C for the claim period.
(5) The assessment must be made on the basis of:
(a) the assessments under section 20N of levy credits for the claim period; and
(b) the assessments under section 20F of eligible revenue for each participating person for the last eligible revenue period that ended before the start of the claim period; and
(c) any other information or documents that the ACA has and that it thinks relevant to making the assessment.
(6) The ACA must act expeditiously in preparing its assessment. However, a failure to comply with this subsection does not affect the validity of the assessment.
20V Publication of assessment
As soon as practicable after making an assessment under section 20U for a claim period, the ACA must:
(a) cause a copy of the assessment to be published in the Gazette; and
(b) give a copy of the assessment to each of the persons referred to in subsections 20U(2), (3) and (4).
20W Variation of assessments
(1) The ACA may vary an assessment made under this Part by making such alterations and additions as it thinks necessary, even if levy credits or levy has been paid in respect of an assessment.
(2) Unless the contrary intention appears, an amended assessment is taken, for the purposes of this Part, to be an assessment under section 20F, 20N or 20U (as the case may be).
20X ACA may accept statements
Despite anything in this Part, the ACA may, for the purposes of making an assessment under this Part, partly or completely accept a statement in a claim for levy credit or an eligible revenue return.
20Y Multiple assessments in the same document
The ACA may include in the same document more than one assessment made under this Part.
Subdivision D—Collection and recovery of levy
20Z When levy payable
(1) Levy assessed under section 20U becomes due and payable on:
(a) the 28th day; or
(b) such later day as is determined in writing by the ACA;
after the ACA gives a copy of the assessment to the participating person in respect of which the levy has been assessed.
(2) A copy of a determination under paragraph (1)(b) must be published in the Gazette.
20ZA Levy a debt due to the Commonwealth
Levy may be recovered in a court of competent jurisdiction as a debt due to the Commonwealth.
20ZB Validity of assessment
The validity of an assessment under this Division is not affected by a contravention of this Act.
20ZC Evidence of assessment
(1) This section applies if:
(a) a copy of the Gazette is produced that sets out what purports to be a copy of an assessment made under section 20U; or
(b) a document that purports to be such a copy is produced.
(2) Except so far as the contrary is established, it must be presumed:
(a) that the copy of the Gazette sets out, or that the document is, as the case may be, a copy of such an assessment; and
(b) that the ACA has duly made the assessment; and
(c) that the amounts and other particulars set out in the assessment are correct.
20ZD Onus of establishing incorrectness of assessment
In any proceeding, the onus of establishing that an assessment under section 20U is incorrect is on the party making that assertion.
20ZE Refund of overpayment of levy
If there is an overpayment of levy, the overpayment is to be refunded.
20ZF Cancellation of certain exemptions from levy
(1) This section cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay levy.
(2) The cancellation does not apply if the provision of the other Act is enacted after the commencement of this section and refers specifically to levy imposed by the Telecommunications (Universal Service Levy) Act 1997.
20ZG Commonwealth not liable to levy
(1) The Commonwealth is not liable to pay levy.
(2) A reference in this section to the Commonwealth includes a reference to an authority of the Commonwealth that cannot, by law of the Commonwealth, be made liable to taxation by the Commonwealth.
20ZH Performance bonds and guarantees
(1) The Minister may, by written determination, require a person who has a liability to pay levy, or an anticipated liability to pay levy, to obtain, in accordance with the determination, performance bonds or guarantees in respect of the person’s liability or anticipated liability.
(2) The person must comply with the determination.
(3) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(4) In this section:
performance bond has the meaning given by the determination.
Division 14—The Universal Service Account and distributions of levy
21 Universal Service Account
(1) The Universal Service Account that was, immediately before the commencement of this section, in existence because of section 82 of the unamended Act continues in existence under and subject to the provisions of this Act.
(2) The Universal Service Account is a Special Account within the meaning of the FMA Act.
(3) The Universal Service Account is to be administered by:
(a) the Department; or
(b) the ACA, if the ACA is a prescribed Agency within the meaning of the FMA Act.
(4) If there is a change to who is to administer the Universal Service Account in accordance with subsection (3), the Minister may determine in writing arrangements to deal with any issues of a transitional nature that may arise as a result of the change.
(5) A copy of a determination under subsection (4) must be published in the Gazette.
(6) In this section:
FMA Act means the Financial Management and Accountability Act 1997.
unamended Act means this Act as in force immediately before the commencement of Schedule 1 to the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000.
21A Credits to Universal Service Account
There must be credited to the Universal Service Account:
(a) amounts equal to amounts of levy paid from time to time under this Part; and
(b) all money appropriated by law for the purposes of the Universal Service Account; and
(c) amounts equal to amounts that were overpaid under section 21C and have been recovered; and
(d) amounts equal to amounts of penalty paid from time to time under section 23D.
21B Purposes of Universal Service Account
(1) Amounts standing to the credit of the Universal Service Account may be expended:
(a) in payment of any amounts payable under section 21C; and
(b) in payment of any refunds under section 20ZE; and
(c) in refunding any amounts paid into the Universal Service Account in error; and
(d) in making distributions in accordance with section 21D; and
(e) in reimbursing the Commonwealth for:
(i) the costs or expenses incurred by the Commonwealth or the ACA in administering the Telecommunications (Universal Service Levy) Act 1997 and this Division during any period; and
(ii) without limiting subparagraph (i), costs or expenses incurred in connection with recovering levy; and
(iii) costs incurred by the Commonwealth during the period in collecting, compiling, analysing and publishing information about the operation of that Act and this Division.
(2) For the purposes of paragraph (1)(e), the Minister administering the Financial Management and Accountability Act 1997 may, from time to time, determine the amount of a reimbursement to be made to the Commonwealth in relation to a period on such basis as he or she thinks appropriate.
(3) Despite subsection (2), the total of the amounts reimbursed under paragraph (1)(e) must not exceed the total of the amounts paid into the Universal Service Account under paragraph 21A(b) (including any interest earned on those amounts).
21C Levy distribution
(1) If a person has a levy credit balance for a claim period because of section 20T, an amount equal to the amount of that balance is payable to the person out of the Universal Service Account.
(2) No amount is payable out of the Universal Service Account for a claim period unless and until the ACA has made an assessment under section 20U for that claim period.
(3) If the total of the amounts payable to persons out of the Universal Service Account is more than the balance of the Universal Service Account, after paying any refunds that are due under section 20ZE, the ACA must:
(a) work out the amount payable to each person as a proportion of the total amounts payable; and
(b) ensure that any payments out of the Universal Service Account are made in accordance with those proportions (rounding amounts to whole dollars as the ACA considers appropriate).
(4) However, if the Minister determines in writing a different method for making payments out of the Universal Service Account than the method provided in subsection (3), the ACA must act in accordance with that determination.
(5) A determination under subsection (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(6) A person’s levy credit balance for the claim period is reduced by the amount (worked out under this section) that is paid to the person.
(7) This section continues to apply until each person’s levy credit balance for the period is reduced to nil.
21D Distribution of remaining balance of the Universal Service Account
(1) The ACA may distribute to persons who are or were participating persons any balance of the Universal Service Account that remains after all amounts payable out of it for a claim period have been paid.
(2) The Minister may determine in writing rules for making those distributions. The ACA must comply with those rules.
(3) A determination under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
21E Recovery of overpayments
(1) For the purposes of this section, an overpaid amount is so much of an amount paid under section 21C as represents an overpayment.
(2) An overpaid amount is a debt due to the Commonwealth.
(3) An overpaid amount may be recovered by the Commonwealth by action in a court of competent jurisdiction.
(4) If a person is liable to pay an overpaid amount, the overpaid amount may be deducted from one or more other amounts that are payable to the person under this Part, and if it is so deducted, the other amounts are taken to have been paid in full to the person.
Division 15—Disclosure of information
22 Public may request information
(1) A person may request the ACA to make available to the person:
(a) specified information or documents on the basis of which the ACA may make, or has made, its assessment under section 20U for a claim period; or
(b) specified information about how the ACA may work out, or has worked out, the matters that such an assessment will set out, or sets out, because of subsection 20U(2), (3) or (4).
(2) The ACA must comply with a request as provided in section 22B. This subsection has effect subject to subsection (3).
(3) The ACA must not make available under this section:
(a) information (other than information prescribed for the purposes of this paragraph):
(i) that was obtained from, or relates to, a universal service provider, or a digital data service provider, for a claim period; and
(ii) the making available of which under this section can reasonably be expected to cause substantial damage to that provider; or
(b) information prescribed for the purposes of this paragraph; or
(c) so much of a document as sets out information of a kind referred to in paragraph (a) or (b).
22A Request for information that is unavailable under section 22
(1) For the purposes of this section, each of the following persons is an eligible person:
(a) a person who is a universal service provider for a claim period;
(b) a person who is a digital data service provider for a claim period;
(c) a person who is a participating person for a claim period.
(2) An eligible person may request the ACA to make available to it specified information or documents of a kind referred to in subsection 22(1) that subsection 22(3) prevents the ACA from making available to the eligible person under section 22.
(3) The ACA must comply with a request as provided for in section 22B. This section has effect subject to subsection (4).
(4) The ACA must not, under this section, make available to an eligible person (the first eligible person) information, or so much of a document as sets out information:
(a) that was obtained from, or relates to, another eligible person; and
(b) the making available of which to the first eligible person can reasonably be expected to cause substantial damage to the other eligible person’s commercial or other interests;
unless the ACA is satisfied:
(c) that the information could be obtained by the first eligible person lawfully, and without the other eligible person’s consent, from a source other than the ACA; or
(d) in the case of a request under paragraph 22(1)(a) or (b)—that:
(i) the first eligible person has made the request in good faith for the sole purpose of informing itself about the basis on which, or the methods by which, the ACA made the assessment concerned; and
(ii) having regard to the policy principles in section 8A, the first eligible person’s interest in being able to examine that basis and those methods in order to see how its liability to pay levy, or its entitlement to a payment under section 21C, as the case requires, has been assessed outweighs the other eligible person’s interest in avoiding the damage referred to in paragraph (b); or
(e) in the case of a request under paragraph 22(1)(c)—that:
(i) the first eligible person has made the request in good faith for the sole purpose of informing itself about the basis on which, or the methods by which, the ACA made the decision to make the determination concerned; and
(ii) having regard to the policy principles in section 8A, the first eligible person’s interest in being able to examine that decision outweighs the other eligible person’s interest in avoiding the damage referred to in paragraph (b).
(5) In determining the question referred to in paragraph (4)(b), the ACA must have regard to:
(a) whether any undertakings have been given under subsection (6) and, if so, the nature of those undertakings; and
(b) such other matters (if any) as the ACA considers relevant.
(6) For the purposes of this section, a person may give the ACA a written undertaking that, if specified information, or the whole or a part of a specified document, is made available to the person under this section, the person will not disclose the information, or the contents of the document, except to one or more specified persons.
Note: Information, documents or persons may be specified by name, by inclusion in a class or in any other way.
(7) If a person gives an undertaking under subsection (6), the person must comply with the undertaking.
22B How the ACA is to comply with a request
(1) The ACA may comply with a request by a person under section 22 or 22A by:
(a) communicating information to the person in writing or in some other form; or
(b) making documents available for inspection by the person or by an employee, agent or professional adviser of the person; or
(c) giving to the person copies of, extracts from, or summaries of, documents.
(2) In this section:
document includes a part of a document.
22C Minister’s information‑gathering powers
(1) This section applies if the Minister has reason to believe that a carrier or carriage service provider has information that is relevant to the exercise of the Minister’s powers, or performance of the Minister’s functions, under this Part.
(2) The Minister may give written notice to the carrier or provider requiring the carrier or provider to give the information to the Minister, within the period and in the manner specified in the notice.
(3) The carrier or provider must comply with the notice.
(4) A notice under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
22D Minister may modify way in which this Division applies
(1) The Minister may determine in writing that this Division applies to information subject to such modifications as are specified in the determination.
(2) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(3) In this section:
modifications includes omissions, additions and substitutions.
Division 16—Other matters
23 ACA must maintain Register/s
(1) The ACA is to maintain a Register or Registers in which the ACA includes a copy of each of the following documents (indicating whether the document is currently in force):
(a) a determination made under section 11C, (contestable service obligations);
(b) a determination made under section 14 (alternative arrangements for fulfilling the universal service obligation);
(c) an approved policy statement for a primary universal service provider or a competing universal service provider;
(d) an approved standard marketing plan for a primary universal service provider or a competing universal service provider;
(e) an approved ATS marketing plan for a primary universal service provider or a competing universal service provider;
(f) an approved digital data service plan for a digital data service provider.
(2) The Register or Registers may be maintained by electronic means.
(3) A person may, on payment of the charge (if any) fixed by a determination under section 53 of the Australian Communications Authority Act 1997:
(a) inspect the Register or Registers; and
(b) make a copy of, or take extracts from, the Register or Registers.
(4) For the purposes of this section, if a Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the ACA gives the person a printout of some or all of the Register.
(5) If a person requests that a copy be provided in an electronic form, the ACA may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
23A Delegation to the ACA
(1) The Minister may delegate one or more of his or her powers under this Part to an SES employee, or an acting SES employee, of the ACA. The delegation must be in writing.
(2) The delegation may be made subject to specified conditions.
(3) A notice of a delegation made under this section must be published in the Gazette, including details of the delegation.
23B Effect of failure to publish notices in the Gazette
A failure by the Minister or the ACA to publish a notice in the Gazette as required by a provision of this Act does not affect the validity of anything else done in accordance with this Act.
23C Offence of failing to lodge eligible revenue return
(1) A person is guilty of an offence if:
(a) the person is required under section 20 to give the ACA an eligible revenue return for an eligible revenue period; and
(b) the person fails to do so; and
(c) the ACA has not made an assessment under section 20U that includes an estimate of the person’s eligible revenue for the eligible revenue period.
This is an offence of strict liability.
Maximum penalty: 50 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: For strict liability, see section 6.1 of the Criminal Code.
Note 3: The maximum penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.
(2) A person who is guilty of an offence under subsection (1) is guilty of a separate offence in respect of each day on which the failure continues (including the day of a conviction for the offence or any later day).
(3) Despite anything in section 583 of the Telecommunications Act 1997, that section does not apply to an offence under subsection (1).
23D Penalty for late payment of levy
(1) If any amount of levy assessed under section 20U that is payable by a person remains unpaid after the day by which it must be paid, the person is liable to a penalty on the unpaid amount for each day until all of the levy has been paid.
(2) The penalty rate is 20% per year, or such lower rate as the ACA determines in writing for the purposes of this subsection.
(3) The ACA may remit the whole or part of a penalty that a person is liable to pay under subsection (2).
(4) The penalty for a day is due and payable to the ACA at the end of that day and may be recovered by the ACA, on the Commonwealth’s behalf, as a debt due to the Commonwealth.
(5) Amounts of penalty received are to be paid into the Consolidated Revenue Fund.
(6) If the amount of the penalty is not an amount of whole dollars, the penalty is rounded to the nearest dollar (rounding 50 cents upwards).
(7) As soon as practicable after a person fails to pay an amount of levy by the time by which it must be paid, the ACA must, in writing, notify the person that the person is liable to a penalty under this section. However, a failure to do so does not affect the person’s liability.
(8) A determination made for the purposes of subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Schedule 2—Application and transitional provisions
1 Application of repealed Part 2
Despite the repeal and substitution of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 by Schedule 1 to this Act, that Part continues to apply, after that Schedule commences in relation to the financial year that ended on 30 June 2000, as if that repeal and substitution had not happened.
2 Things done under repealed Part 2
(1) If:
(a) something was done (other than something covered by item 3), before this Act received the Royal Assent, under or for the purposes of a provision of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999; and
(b) immediately after the repeal and substitution of that Part by Schedule 1 to this Act, there is a provision in that Part that requires or allows the same, or an equivalent, thing to be done;
then, after the commencement of Schedule 1, the thing is taken to have been done under or for the purposes of the latter provision.
(2) If the thing would have been done by another person or body, had it been done after the commencement of Schedule 1, then it is taken to have been done by that other person or body for the purposes of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.
3 Effect of instruments made under repealed Part 2
(1) For the purposes of this item, an eligible instrument means regulations, a declaration, a determination, a direction, a notice or any other instrument that was:
(a) made or given under a provision (the original provision) of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 in the table in subitem (3), or made or given for the purposes of such a provision; and
(b) in force immediately before this Act received the Royal Assent.
(2) Despite the repeal and substitution of that Part by Schedule 1 to this Act, an eligible instrument has effect, after that Schedule commences, as if:
(a) it had been made or given under, or for the purposes of, the equivalent provision of that Part in the table in subitem (3); and
(b) any requirement for the making or giving of the eligible instrument had been satisfied.
(3) This table sets out the original provisions, and their equivalent provisions, of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.
Equivalent provisions of the Telecommunications (Consumer Protection and Service Standards) Act 1999
Item
This original provision (before this Act receives the Royal Assent):
... is equivalent, after Schedule 1 commences, to this provision:
1
subparagraph 11(b)(iii)
subparagraph 9C(b)(iii)
2
section 12
section 9D
3
section 13
section 9E
4
section 14
section 9F
5
subsection 14A(1)
subsection 10F(1)
6
subsection 14A(5)
subsection 10G(1)
7
section 17
subsection 20B(1)
8
section 18
section 8F
9
subsection 19(3)
subsection 9(3)
10
subsection 19(5)
subsection 9A(2)
11
subsection 19A(8)
subsection 10D(1)
12
subsection 19B(1)
subsection 10H(1)
13
subsection 19C(1)
subsection 10J(1)
14
section 26A
section 15
15
subsection 38(2)
subsection 12Y(2)
16
subsection 40G(1)
subsection 15J(1)
17
subsection 40M(2)
subsection 15N(2)
18
subsection 42(1)
subsection 18A(1)
19
subsection 43(2)
subsection 18B(2)
20
subsection 46B(1)
subsection 19A(1)
21
subsection 46C(2)
subsection 19B(2)
22
section 61A
section 17
23
subsection 61B(1)
subsection 17A(1)
4 References to certain terms in eligible instruments
(1) For the purposes of this item, an eligible instrument means regulations, a declaration, a determination, a direction, a notice or any other instrument that:
(a) was in force immediately before this Act received the Royal Assent; and
(b) contains a reference to a term the definition of which is repealed by this Act.
(2) For the purposes of the amendments made by Schedule 1 to this Act, the Minister or the ACA may determine in writing that a specified eligible instrument has effect, after that Schedule commences, as if a reference in the instrument to a specified term were a reference to another specified term.
Note: An instrument may be specified by name, by inclusion in a specified class or in any other way.
5 Treatment of draft universal service plans
(1) This item applies to a draft universal service plan given to the Minister under Division 4 of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999, that the Minister has neither approved nor refused to approve, before this Act received the Royal Assent.
(2) To the extent that the draft contains statements of the policy that the universal service provider concerned will apply in supplying equipment, goods or services, the draft is, after Schedule 1 to this Act commences, taken to be a draft policy statement for the purposes of the Telecommunications (Consumer Protection and Service Standards) Act 1999.
(3) The remainder of the draft is, after Schedule 1 commences, taken to be a draft standard marketing plan for the purposes of that Act.
6 Treatment of approved universal service plans
(1) This item applies to an approved universal service plan under Division 4 of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 that was in force immediately before this Act received the Royal Assent.
(2) To the extent that the plan contains statements of the policy that the universal service provider concerned will apply in supplying equipment, goods or services, the plan is, after Schedule 1 to this Act commences, taken to be an approved policy statement for the purposes of the Telecommunications (Consumer Protection and Service Standards) Act 1999.
(3) The remainder of the plan is, after Schedule 1 commences, taken to be an approved standard marketing plan for the purposes of that Act.
6A ACA advice under section 16A
If, before 31 December 2000, the ACA has given an advice relating to universal service subsidies to the Minister, the advice is taken to have been given to the Minister in accordance with section 16A.
7 Meaning of eligible person
After Schedule 1 to this Act commences, each of the following persons, in relation to a financial year that ended on or before 30 June 2000, is taken to be an eligible person for the purposes of section 22A of the Telecommunications (Consumer Protection and Service Standards) Act 1999:
(a) a universal service provider;
(b) a digital data service provider;
(c) a participating carrier.
Note: Section 22A of that Act deals with requests for information.
8 Application of requirement to maintain Register/s
(1) Section 23 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which requires the ACA to maintain a Register or Registers) does not apply to the ACA until:
(a) 3 months after the day on which this Act receives the Royal Assent; or
(b) such later day as the Minister determines in writing for the purposes of this paragraph.
(2) A copy of a determination made for the purposes of paragraph (1)(b) must be published in the Gazette.
9 Transitional regulations
The Governor‑General may make regulations in relation to any matters of a transitional nature that may arise out of the amendments and repeals made by this Act.
Schedule 3—Consequential and other amendments
Telecommunications Act 1997
1 Section 7 (paragraphs (i) and (j) of the definition of civil penalty provision)
Repeal the paragraphs.
2 Section 66
Repeal the section.
3 Paragraph 105(3)(e)
Repeal the paragraph, substitute:
(e) the adequacy of compliance with obligations under Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999;
4 Paragraph 105(3)(ea)
Repeal the paragraph, substitute:
(ea) the operation of Parts 2 and 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999;
5 After paragraph (1)(j) of Schedule 4
Insert:
(ja) a decision of a kind referred to in subsection 23D(3) (which deals with remission of late payment penalty) of the Telecommunications (Consumer Protection and Service Standards) Act 1999;
(jb) a decision of a kind referred to in subsection 101A(3) (which deals with remission of late payment penalty) of the Telecommunications (Consumer Protection and Service Standards) Act 1999;
Telecommunications (Consumer Protection and Service Standards) Act 1999
6 Subsection 2(2)
Repeal the subsection, substitute:
(2) Part 3 commences on 1 July 1999.
7 Application
Despite the repeal and substitution of subsection 2(2) of the Telecommunications (Consumer Protection and Service Standards) Act 1999 made by item 6, that subsection continues to apply, after this item commences in relation to the financial year that ended on 30 June 2000, as if that repeal and substitution had not happened.
8 Subsection 5(2)
Repeal the subsection, substitute:
(2) In this Act:
alternative telecommunications services, or ATS, in Part 2 has the meaning given by section 8E.
approved ATS marketing plan:
(a) for a primary universal service provider has the meaning given by subsection 12P(2); and
(b) for a competing universal service provider, or applicant for approval as a competing universal service provider, has the meaning given by subsection 13M(2).
approved digital data service plan means an approved digital data service plan under Subdivision B of Division 8 of Part 2.
approved policy statement:
(a) for a primary universal service provider has the meaning given by subsection 12F(2); and
(b) for a competing universal service provider, or applicant for approval as a competing universal service provider, has the meaning given by subsection 13F(2).
approved standard marketing plan:
(a) for a primary universal service provider has the meaning given by subsection 12F(4); and
(b) for a competing universal service provider, or applicant for approval as a competing universal service provider, has the meaning given by subsection 13F(4).
claim period in Part 2 has the meaning given by section 8D.
competing universal service provider has the meaning given by section 13A.
contestable service obligation has the meaning given by section 11C.
default arrangements has the meaning given by section 12.
digital data service has the meaning given by subsection 10E(1).
digital data service charge has the meaning given by section 19.
digital data service obligation has the meaning given by section 10.
digital data service provider means:
(a) a general digital data service provider; or
(b) a special digital data service provider.
draft ATS marketing plan:
(a) for a primary universal service provider has the meaning given by subsection 12P(1); and
(b) for a competing universal service provider, or applicant for approval as a competing universal service provider, has the meaning given by subsection 13M(1).
draft digital data service plan means a draft digital data service plan under Subdivision B of Division 8 of Part 2.
draft policy statement:
(a) for a primary universal service provider has the meaning given by subsection 12F(1); and
(b) for an applicant for approval as a competing universal service provider has the meaning given by subsection 13F(1).
draft standard marketing plan:
(a) for a primary universal service provider has the meaning given by subsection 12F(3); and
(b) for a competing universal service provider, or applicant for approval as a competing universal service provider, has the meaning given by subsection 13F(3).
eligible revenue for an eligible revenue period has the meaning given by section 20B.
eligible revenue period has the meaning given by section 20C.
general digital data service has the meaning given by subsection 10E(2).
general digital data service area has the meaning given by section 10H.
general digital data service obligation has the meaning given by section 10A.
general digital data service provider has the meaning given by subsection 15(1).
levy means levy imposed by the Telecommunications (Universal Service Levy) Act 1997.
levy contribution factor has the meaning given by section 20H.
levy credit has the meaning given by subsection 20J(2).
levy debit has the meaning given by subsection 20R(2).
participating person for an eligible revenue period has the meaning given by section 20A.
primary universal service provider has the meaning given by section 12A.
service area has the meaning given by section 8C.
service obligation has the meaning given by section 9B.
special digital data service has the meaning given by subsection 10E(3).
special digital data service area has the meaning given by section 10J.
special digital data service obligation has the meaning given by section 10B.
special digital data service provider has the meaning given by subsection 15(2).
standard contestability arrangements has the meaning given by section 13.
standard telephone service has the meaning given by section 6.
Telecommunications Industry Ombudsman means the Telecommunications Industry Ombudsman appointed under the Telecommunications Industry Ombudsman scheme.
Telecommunications Industry Ombudsman scheme means the scheme referred to in section 128.
this Act includes the regulations.
universal service area has the meaning given by section 9G.
universal service charge has the meaning given by section 18.
universal service obligation has the meaning given by section 9.
universal service provider has the meaning given by section 11A.
universal service subsidy has the meaning given by section 16.
9 Application
Despite the repeal and substitution of subsection 5(2) of the Telecommunications (Consumer Protection and Service Standards) Act 1999 made by item 8, that subsection continues to apply, after this item commences in relation to the financial year that ended on 30 June 2000, as if that repeal and substitution had not happened.
10 Section 99
Repeal the section, substitute:
99 Persons liable to pay levy (taxpayers)
NRS levy is payable by each person who:
(a) is a participating person for the last eligible revenue period that ends before the start of the quarter; and
(b) is covered by the most recent levy assessment made before the start of the quarter.
Note: The most recent levy assessment is defined in section 101C.
11 Subsection 100(3) (definition of eligible revenue)
Repeal the definition, substitute:
eligible revenue, for a taxpayer for a quarter, means the taxpayer’s eligible revenue as shown in the most recent levy assessment made before the start of the quarter.
Note: The most recent levy assessment is defined in section 101C.
12 At the end of Division 3 of Part 3
Add:
101A Penalty for late payment of levy
(1) If any amount of levy that a person is liable to pay under section 99 remains unpaid after the day by which it must be paid, the person is liable to a penalty on the unpaid amount for each day until all of the levy has been paid.
(2) The penalty rate is 20% per year, or such lower rate as the ACA determines in writing for the purposes of this subsection.
(3) The ACA may remit the whole or part of a penalty that a person is liable to pay under subsection (2).
(4) The penalty for a day is due and payable to the ACA at the end of that day and may be recovered by the ACA, on the Commonwealth’s behalf, as a debt due to the Commonwealth.
(5) Amounts of penalty received are to be paid into the Consolidated Revenue Fund.
(6) If the amount of the penalty is not an amount of whole dollars, the penalty is rounded to the nearest dollar (rounding 50 cents upwards).
(7) As soon as practicable after a person fails to pay an amount of levy by the time by which it must be paid, the ACA must, in writing, notify the person that the person is liable to a penalty under this section. However, a failure to do so does not affect the person’s liability.
(8) A determination made for the purposes of subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
101B Performance bonds and guarantees
(1) The Minister may, by written determination, require a person who has a liability to pay levy, or an anticipated liability to pay levy, under section 99 to obtain, in accordance with the determination, performance bonds or guarantees in respect of the person’s liability or anticipated liability.
(2) The person must comply with the determination.
(3) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(4) In this section:
performance bond has the meaning given by the determination.
13 At the end of Division 3 of Part 3
Add:
101C Meaning of most recent levy assessment
In this Division:
most recent levy assessment means the assessment most recently made by the ACA under one of the following sections:
(a) section 193 of the Telecommunications Act 1997 as in force immediately before the commencement of item 15 of Schedule 4 to the Telecommunications Legislation Amendment Act 1999;
(b) section 64 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 as in force immediately before the commencement of Schedule 1 to the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000;
(c) section 20U of this Act.
14 After subsection 107(6)
Insert:
(6A) However, subsection (6) does not apply if obligations arising under one or any combination of the following:
(a) one or more agreements;
(b) this Act or the Telecommunications Act 1997;
(c) one or more disallowable instruments under this Act (other than regulations under subsection (2)) or the Telecommunications Act 1997;
have the effect of providing a scheme to give benefits of a kind mentioned in subsection (2).
15 After section 159
Insert:
159A Review of operation of Parts 2 and 5 of this Act
(1) The Minister must cause a review of the operation of Parts 2 and 5 of this Act to be commenced within 3 years after the Telecommunications (Consumer Protection and Service Standards) Amendment Act (No. 2) 2000 receives the Royal Assent.
(1A) The review must include an opportunity for the public to make written submissions.
(2) The review must consider:
(a) the operation of Parts 2 and 5; and
(b) whether those Parts best promote the objects of this Act and of Part 2 (as set out in section 3 of the Telecommunications Act 1997 and section 8A of this Act; and
(ba) whether the contestability regime, and the ability of providers to offer alternative telecommunications services, has resulted in an improvement in technologies and services available to people in rural and remote Australia compared with what is on offer to people in metropolitan Australia; and
(c) any other matters the Minister considers relevant.
(3) The Minister must cause a copy of a report of the review to be laid before each House of the Parliament within 15 sitting days of that House after the report is completed.
Schedule 4—Levy distribution for the 1998‑1999 financial year
1 Meaning of former law
In this Schedule:
former law means the Telecommunications Act 1997 as in force immediately before the commencement of item 15 of Schedule 4 to the Telecommunications Legislation Amendment Act 1999.
2 Levy distribution for 1998‑1999 financial year
Items 3 to 6 of this Schedule apply if section 215 of the former law prevents a payment being made out of the Universal Service Account for the 1998‑1999 financial year because of either or both of the following:
(a) the ACA has not yet made a written assessment under section 193 of the former law for that year;
(b) not all participating carriers in respect of which levy was assessed have paid the levy.
Note: The operation of the former law for the 1998‑1999 financial year is preserved by item 23 of Schedule 4 to the Telecommunications Legislation Amendment Act 1999.
3 Assessment based on estimate of eligible revenue
(1) If a participating carrier fails to give the ACA a return under section 191 of the former law for the 1998‑1999 financial year, the ACA may:
(a) estimate the carrier’s eligible revenue for the year; and
(b) make a written assessment under section 193 of the former law of the carrier’s eligible revenue for the year based on the estimate.
(2) The ACA must give at least 14 days’ notice to the carrier of the ACA’s proposal to make the assessment based on the estimate, and of the amount of eligible return proposed to be assessed. The notice must be in writing.
(3) The ACA must not make an assessment based on an estimate after receiving a return for the year from the carrier concerned.
(4) However, if the ACA has made an assessment based on the estimate, the ACA is not required to change it if a return is later given to the ACA.
4 Nil assessments
The ACA may make an assessment under section 193 of the former law or item 3 of this Schedule that a participating carrier’s eligible revenue for the 1998‑1999 financial year is nil if, in the ACA’s opinion, without such an assessment:
(a) it is unlikely that the carrier would be able to pay any levy that would be payable; or
(b) the carrier is unlikely to pay the levy unless the Commonwealth takes action to recover it and the cost of doing so would exceed the amount of the levy.
Note: However, the ACA could later amend a nil assessment under section 195 of the former law.
5 Distributions before all levies have been paid
Despite paragraph 215(b) of the former law, an amount is payable from the Universal Service Account for the 1998‑1999 financial year even if all of the participating carriers in respect of which the levy was assessed have not yet paid the levy.
6 Working out how much levy is payable
(1) If the total of the amounts payable to carriers out of the Universal Service Account is more than the balance of the Universal Service Account, after paying any refunds that are due under section 208 of the former law, the ACA must:
(a) work out the amount payable to each carrier as a proportion of the total amounts payable; and
(b) ensure that any payments out of the Universal Service Account are made in accordance with those proportions (rounding amounts to whole dollars as the ACA considers appropriate).
(2) However, if the Minister determines in writing a different method for making payments out of the Universal Service Account than the method provided in subitem (1), the ACA must act in accordance with that determination.
(3) A determination under subitem (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(4) A carrier’s levy credit balance for the 1998‑1999 financial year is reduced by the amount (worked out under this item) that is paid to the carrier.
(5) This item continues to apply until each carrier’s levy credit balance for the year is reduced to nil.
Schedule 5—Levy distribution for the 1999‑2000 financial year
1 Meaning of former law
In this Schedule:
former law means the Telecommunications (Consumer Protection and Service Standards) Act 1999 as in force immediately before the commencement of Schedule 1 to this Act.
2 Levy distribution for 1999‑2000 financial year
Items 3 to 6 of this Schedule apply if section 86 of the former law prevents a payment being made out of the Universal Service Account for the 1999‑2000 financial year because of either or both of the following:
(a) the ACA has not yet made a written assessment under section 64 of the former law for that year;
(b) not all participating carriers in respect of which levy was assessed have paid the levy.
Note: The operation of the former law for the 1999‑2000 financial year is preserved by item 1 of Schedule 2 to this Act.
3 Assessment based on estimate of eligible revenue
(1) If a participating carrier fails to give the ACA a return under section 62 of the former law for the 1999‑2000 financial year, the ACA may:
(a) estimate the carrier’s eligible revenue for the year; and
(b) make a written assessment under section 64 of the former law of the carrier’s eligible revenue for the year based on the estimate.
(2) The ACA must give at least 14 days’ notice to the carrier of the ACA’s proposal to make the assessment based on the estimate, and of the amount of eligible return proposed to be assessed. The notice must be in writing.
(3) The ACA must not make an assessment based on an estimate after receiving a return for the year from the carrier concerned.
(4) However, if the ACA has made an assessment based on the estimate, the ACA is not required to change it if a return is later given to the ACA.
4 Nil assessments
The ACA may make an assessment under section 64 of the former law or item 3 of this Schedule that a participating carrier’s eligible revenue for the 1999‑2000 financial year is nil if, in the ACA’s opinion, without such an assessment:
(a) it is unlikely that the carrier would be able to pay any levy that would be payable; or
(b) the carrier is unlikely to pay the levy unless the Commonwealth takes action to recover it and the cost of doing so would exceed the amount of the levy.
Note: However, the ACA could later amend a nil assessment under section 66 of the former law.
5 Distributions before all levies have been paid
Despite paragraph 86(b) of the former law, an amount is payable from the Universal Service Account for the 1999‑2000 financial year even if all of the participating carriers in respect of which the levy was assessed have not yet paid the levy.
6 Working out how much levy is payable
(1) If the total of the amounts payable to carriers out of the Universal Service Account is more than the balance of the Universal Service Account, after paying any refunds that are due under section 79 of the former law, the ACA must:
(a) work out the amount payable to each carrier as a proportion of the total amounts payable; and
(b) ensure that any payments out of the Universal Service Account are made in accordance with those proportions (rounding amounts to whole dollars as the ACA considers appropriate).
(2) However, if the Minister determines in writing a different method for making payments out of the Universal Service Account than the method provided in subitem (1), the ACA must act in accordance with that determination.
(3) A determination under subitem (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
(4) A carrier’s levy credit balance for the 1999‑2000 financial year is reduced by the amount (worked out under this item) that is paid to the carrier.
(5) This item continues to apply until each carrier’s levy credit balance for the year is reduced to nil.
(133/00)
[Minister’s second reading speech made in—
House of Representatives on 29 June 2000
Senate on 11 October 2000]
