Part XIB - The Telecommunications Industry: Anti-competitive conduct and record-keeping rules
The following is a simplified outline of this Part:
• This Part sets up a special regime for regulating anti‑competitive conduct in the telecommunications industry. The regime applies in addition to Part IV.
• The Part sets out the circumstances in which carriers and carriage service providers are said to engage in anti‑competitive conduct.
• A carrier or carriage service provider must not engage in anti‑competitive conduct. This rule is called the competition rule.
• The Commission may issue a notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in anti‑competitive conduct. The notice is called a Part A competition notice.
• Proceedings for the enforcement of the competition rule (other than proceedings for injunctive relief) must not be instituted unless the alleged conduct is of a kind dealt with in a Part A competition notice that was in force at the time when the alleged conduct occurred.
• The Commission may issue a notice stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule. The notice is called a Part B competition notice.
• A Part B competition notice is prima facie evidence of the matters in the notice.
• The Commission may make an order exempting specified conduct from the scope of the definition of anti‑competitive conduct. The order is called an exemption order.
• Carriers and carriage service providers may be directed to file tariff information with the Commission. The direction is called a tariff filing direction.
• The Commission may make record‑keeping rules that apply to carriers and carriage service providers.
• Carriers and carriage service providers may be directed by the Commission to make certain reports available. The direction is called a disclosure direction.
In this Part, unless the contrary intention appears:
ACMA means the Australian Communications and Media Authority.
anti‑competitive conduct has the meaning given by section 151AJ.
carriage servicehas the same meaning as in the Telecommunications Act 1997.
carriage service provider has the same meaning as in the Telecommunications Act 1997.
carrier has the same meaning as in the Telecommunications Act 1997.
carrier licence has the same meaning as in the Telecommunications Act 1997.
competition notice means:
(a) a Part A competition notice; or
(b) a Part B competition notice.
competition rule means the rule set out in section 151AK.
content service has the same meaning as in the Telecommunications Act 1997.
data processing device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device.
disclosure direction means a direction under subsection 151BUB(2), 151BUC(2), 151BUDB(2) or 151BUDC(2).
eligible partnership has the same meaning as in the Telecommunications Act 1997.
exemption order means an order under section 151BA.
facility has the same meaning as in the Telecommunications Act 1997.
Federal Court means the Federal Court of Australia.
listed carriage service has the same meaning as in the Telecommunications Act 1997.
Ministerially‑directed report has the meaning given by section 151BUAA.
Part A competition notice means a notice issued under subsection 151AKA(1) or (2).
Part B competition notice means a notice issued under subsection 151AL(1).
person includes a partnership.
Note: Section 151CH sets out additional rules about partnerships.
record‑keeping rule means a rule under section 151BU.
service provider rule has the same meaning as in the Telecommunications Act 1997.
tariff filing direction means a direction under section 151BK.
telecommunications market has the meaning given by section 151AF.
151AC Extension to external Territories
This Part, and the other provisions of this Act so far as they relate to this Part, extend to each eligible Territory (within the meaning of the Telecommunications Act 1997).
151AD Continuity of partnerships
For the purposes of this Part, a change in the composition of a partnership does not affect the continuity of the partnership.
151AE Additional operation of Part
(1) Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.
(2) This Part has, by force of this subsection, the effect it would have if:
(a) any references in this Part to a carrier were, by express provision, confined to a carrier that is a corporation; and
(b) any references in this Part to a carriage service provider were, by express provision, confined to a carriage service provider that is a corporation.
(3) In addition to the effect that this Part has as provided by subsection (2), this Part has, by force of this subsection, the effect it would have if subsections 151AJ(2) and (3) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to:
(a) trade or commerce between
(b) trade or commerce among the States; or
(c) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or
(d) the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth.
151AF Telecommunications market
For the purposes of this Part, a telecommunications market is a market in which any of the following goods or services are supplied or acquired:
(a) carriage services;
(b) goods or services for use in connection with a carriage service;
(c) access to facilities.
Note: Market has a meaning affected by section 4E.
151AG When a body corporate is related to a partnership
For the purposes of this Part, if:
(a) a carrier or a carriage service provider is a partnership; and
(b) a body corporate is related to a partner in the partnership;
the body corporate is taken to be related to the carrier or carriage service provider, as the case requires.
151AH Degree of power in a telecommunications market
(1) For the purposes of this Part, if:
(a) a body corporate is related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) the body corporate has a substantial degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(2) For the purposes of this Part, if:
(a) 2 or more bodies corporate are related to the one:
(i) carrier; or
(ii) carriage service provider; and
(b) those bodies corporate together have a substantial degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(3) For the purposes of this Part, if:
(a) a body corporate is related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) the body corporate and the carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(4) For the purposes of this Part, if:
(a) 2 or more bodies corporate are related to:
(i) a carrier; or
(ii) a carriage service provider; and
(b) those bodies corporate and that carrier or carriage service provider, as the case may be, together have a substantial degree of power in a telecommunications market;
the carrier or carriage service provider, as the case requires, is taken to have a substantial degree of power in that market.
(5) In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard must be had to the extent to which the conduct of the person or any of those persons in that market is constrained by the conduct of:
(a) competitors, or potential competitors, of the person or of any of those persons in that market; or
(b) persons to whom or from whom the person or any of those persons supplies or acquires goods or services in that market.
(5A) In determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market, regard may be had to the power that the person has, or that the persons have, in that market that results from:
(a) any contracts, arrangements or understandings, or proposed contracts, arrangements or understandings, that the person has or may have, or that the persons have or may have, with another party or parties; and
(b) any covenants, or proposed covenants, that the person is or would be, or that the persons are or would be, bound by or entitled to the benefit of.
(6) Subsections (5) and (5A) do not, by implication, limit the matters to which regard may be had in determining, for the purposes of this Part, the degree of power that a person has, or that persons have, in a telecommunications market.
(6A) For the purposes of this Part, without limiting the matters to which the Court may have regard for the purpose of determining whether a person has a substantial degree of power in a telecommunications market, a person may have a substantial degree of power in a telecommunications market even though:
(a) the person does not substantially control the market; or
(b) the person does not have absolute freedom from constraint by the conduct of:
(i) competitors, or potential competitors, of the person in that market; or
(ii) persons to whom or from whom the person supplies or acquires goods or services in that market.
(6B) To avoid doubt, for the purposes of this Part, more than 1 person may have a substantial degree of power in a telecommunications market.
(7) In this Part:
(a) a reference to power is a reference to market power; and
(b) a reference to power in relation to, or to conduct in, a telecommunications market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.
151AI Interpretation of Part IV or VII not affected by this Part
In determining the meaning of a provision of Part IV or VII, the provisions of this Part are to be ignored.
Division 2—Anti‑competitive conduct
151AJ Anti‑competitive conduct
(1) This section sets out the 2 circumstances in which:
(a) a carrier; or
(b) a carriage service provider;
is said to engage in anti‑competitive conduct for the purposes of this Part.
(2) A carrier or carriage service provider engages in anti‑competitive conduct if the carrier or carriage service provider:
(a) has a substantial degree of power in a telecommunications market; and
(b) either:
(i) takes advantage of that power in that or any other market with the effect, or likely effect, of substantially lessening competition in that or any other telecommunications market; or
(ii) takes advantage of that power in that or any other market, and engages in other conduct on one or more occasions, with the combined effect, or likely combined effect, of substantially lessening competition in that or any other telecommunications market.
(2A) Without limiting the matters to which regard may be had for the purpose of determining whether a carrier or carriage service provider has engaged in anti‑competitive conduct as defined in subsection (2), regard may be had to:
(a) any conduct of the carrier or carriage service provider that consisted of supplying goods or services for a sustained period at a price that was less than the relevant cost to the carrier or carriage service provider of supplying such goods or services; and
(b) the reasons for that conduct.
(3) A carrier or carriage service provider engages in anti‑competitive conduct if the carrier or carriage service provider:
(a) engages in conduct in contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48; and
(b) the conduct relates to a telecommunications market.
(4) For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation, in determining whether conduct of the carrier or provider is in contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48
the following assumptions are to be made:
(a) the assumption that each reference to a corporation in:
(i) those sections; and
(ii) sections 44ZZRL and 44ZZRM;
included a reference to a carrier, or a carriage service provider, that is not a corporation;
(b) the assumption that subsections 45(8) and 47(12) and section 44ZZRN had not been enacted.
(5) For the purposes of the application of subsection (3) to a carrier, or a carriage service provider, that is not a corporation or a partnership, in determining whether conduct of the carrier or provider is in contravention of section 45, 45B, 46, 47 or 48, the following assumptions are to be made:
(a) the assumption that the expression “or any body corporate related to such a corporation” were omitted from subsection 45(3);
(b) the assumption that the expression “or a body corporate related to the corporation” were omitted from paragraph 45(4)(b);
(c) the assumption that the expression “or of a body corporate that is related to the corporation” were omitted from paragraphs 46(1)(a) and (1AA)(a);
(d) the assumption that subsection 46(2) had not been enacted;
(e) the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from each of the following provisions:
(i) paragraphs 47(2)(d) and (e);
(ii) paragraphs 47(3)(d) and (e);
(iii) subparagraphs 47(8)(a)(i) and (ii);
(f) the assumption that the expression “not being a body corporate related to the corporation” were omitted from subsections 47(6) and (7) and paragraphs 47(8)(c) and 47(9)(d);
(g) the assumption that the expression “or from a competitor of a body corporate related to the corporation” were omitted from paragraphs 47(9)(a) and (b);
(h) the assumption that the expression “, or by a body corporate related to the corporation,” were omitted from paragraph 47(10)(b);
(i) the assumption that the expression “or any body corporate related to that corporation” were omitted from subparagraph 47(13)(b)(i);
(j) the assumption that the expression “or any body corporate related to either of those corporations” were omitted from paragraph 47(13)(c) and the expression “any body corporate related to the last‑mentioned corporation” were substituted;
(k) the assumption that the expression “where the second person mentioned in that paragraph is a corporation” were omitted from subsection 96(2).
(6) A person may be taken to have engaged in anti‑competitive conduct even if the conduct involves the exercise, or proposed exercise, of an existing legal or equitable right (whether under a contract or otherwise).
(7) Despite anything in subsection (2) or (3), a carrier or carriage service provider does not engage in anti‑competitive conduct if that conduct does not constitute a contravention of section 44ZZRJ, 44ZZRK, 45, 45B, 46, 47 or 48:
(a) because an authorisation is in force; or
(b) because of the operation of subsection 44ZZRL(1) or 45(8A) or section 93; or
(c) because of the operation of subsection 45(9); or
(d) because of the operation of subsection 45B(8); or
(e) because of the operation of section 44ZZRM.
(8) A carrier or carriage service provider does
not engage in anti‑competitive conduct if that conduct occurred before
(1) A carrier or carriage service provider must not engage in anti‑competitive conduct.
(2) For the purposes of this Part, the rule set out in subsection (1) is to be known as the competition rule.
Note: For enforcement of the competition rule, see Division 7.
Division 3—Competition notices and exemption orders
Subdivision A—Competition notices
151AKA Part A competition notices
Particular anti‑competitive conduct
(1) The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in a specified instance of anti‑competitive conduct.
Kind of anti‑competitive conduct
(2) The Commission may issue a written notice stating that a specified carrier or carriage service provider has engaged, or is engaging, in at least one instance of anti‑competitive conduct of a kind described in the notice.
Part A competition notice
(3) A notice under subsection (1) or (2) is to be known as a Part A competition notice.
Part A competition notices under subsection (2)
(4) For the purposes of this Part, a kind of anti‑competitive conduct described in a Part A competition notice under subsection (2) is taken to be conduct of a kind dealt with in the notice.
(5) To avoid doubt, a Part A competition notice under subsection (2) is not required to specify any instance of anti‑competitive conduct.
(6) In deciding how to describe a kind of anti‑competitive conduct in a Part A competition notice under subsection (2), the Commission may have regard to:
(a) whether the carrier or carriage service provider concerned could, by varying its conduct, continue to engage in anti‑competitive conduct and avoid proceedings against it under one or more provisions of Division 7; and
(b) any other matters that the Commission thinks are relevant.
Threshold for issuing Part A competition notices
(7) The Commission may issue a Part A competition notice under subsection (1) that specifies an instance of anti‑competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in that instance of anti‑competitive conduct.
(8) The Commission may issue a Part A competition notice under subsection (2) that describes a kind of anti‑competitive conduct if the Commission has reason to believe that the carrier or carriage service provider concerned has engaged, or is engaging, in at least one instance of anti‑competitive conduct of that kind.
Consultation
(9) The Commission must not issue a Part A competition notice under subsection (1) in relation to a carrier or carriage service provider unless the Commission has first:
(a) given the carrier or provider a written notice:
(i) stating that the Commission proposes to issue a Part A competition notice under subsection (1) in relation to the carrier or provider; and
(ii) describing, in summary form, the instance of anti‑competitive conduct that is proposed to be specified in the Part A competition notice; and
(iii) inviting the carrier or provider to make a submission to the Commission on the proposal by a specified time limit; and
(b) considered any submission that was received within that time limit.
(10) The Commission must not issue a Part A competition notice under subsection (2) in relation to a carrier or carriage service provider unless the Commission has first:
(a) given the carrier or provider a written notice:
(i) stating that the Commission proposes to issue a Part A competition notice under subsection (2) in relation to the carrier or provider; and
(ii) describing, in summary form, the kind of anti‑competitive conduct that is proposed to be specified in the Part A competition notice; and
(iii) inviting the carrier or provider to make a submission to the Commission on the proposal by a specified time limit; and
(b) considered any submission that was received within that time limit.
Note: For the effect of a Part A competition notice, see subsections 151BY(3), 151CB(3), 151CC(3) and 151CE(5).
151AL Part B competition notices
(1) The Commission may issue a written notice:
(a) stating that a specified carrier or carriage service provider has contravened, or is contravening, the competition rule; and
(b) setting out particulars of that contravention.
(2) A notice under subsection (1) is to be known as a Part B competition notice.
Threshold for issuing Part B competition notices
(3) The Commission may issue a Part B competition notice relating to a particular contravention if the Commission has reason to believe that the carrier or carriage service provider concerned has committed, or is committing, the contravention.
Notice may be issued after proceedings have been instituted
(4) To avoid doubt, a Part B competition notice may be issued even if any relevant proceedings under Division 7 have been instituted.
Note: For the effect of a Part B competition notice, see subsection 151AN(1).
151AM Competition notice to be given to carrier or carriage service provider
As soon as practicable after issuing a competition notice, the Commission must give a copy of the competition notice to the carrier or carriage service provider concerned.
151AN Evidentiary effect of competition notice
(1) In any proceedings under, or arising out of, this Part, a Part B competition notice is prima facie evidence of the matters in the notice.
(2) A document purporting to be a competition notice must, unless the contrary is established, be taken to be a competition notice and to have been properly issued.
(3) The Commission may certify that a document is a copy of a competition notice.
(4) This section applies to the certified copy as if it were the original.
151AO Duration of Part A competition notice
(1) A Part A competition notice comes into force:
(a) when it is issued; or
(b) if the notice specifies a later time—at that later time;
and, unless sooner revoked, remains in force until the end of the period specified in the notice. The period must not be longer than 12 months.
(2) If a Part A competition notice expires, this Part does not prevent the Commission from issuing a fresh Part A competition notice under section 151AKA that relates to the same matter as the expired notice.
151AOA Variation of competition notice
(1) If a competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice so long as the variation is of a minor nature.
(2) If a Part A competition notice is in force in relation to a carrier or carriage service provider, the Commission may vary the competition notice by omitting the time at which the notice is expressed to come into force and substituting a later time.
(3) If a competition notice is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation.
151AOB Revocation of competition notice
(1) The Commission may revoke a competition notice.
(2) If a competition notice is revoked, the Commission must give the carrier or carriage service provider concerned a written notice stating that the notice has been revoked.
(1) In deciding whether to issue a competition notice, the Commission must have regard to:
(a) any guidelines in force under subsection (2); and
(b) such other matters as the Commission considers relevant.
(2) The Commission must, by written instrument, formulate guidelines for the purposes of subsection (1).
(3) Guidelines under subsection (2) must address the appropriateness of the Commission issuing a competition notice as opposed to the Commission taking other action under this Act.
(4) The Commission must take all reasonable steps to ensure that guidelines under subsection (2) comply with subsection (3) within 12 months after the commencement of this subsection.
151AQ Commission to act expeditiously
(1) If the Commission has reason to suspect that a carrier or carriage service provider has contravened, or is contravening, the competition rule, the Commission must act expeditiously in deciding whether to issue a competition notice in relation to that contravention.
(2) A failure to comply with subsection (1) does not affect the validity of a competition notice.
151AQA Stay of proceedings relating to competition notices
(1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the Administrative Decisions (Judicial Review) Act 1977 do not apply to a decision to issue a competition notice.
(2) If a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice, the Court must not make any orders staying or otherwise affecting the operation or implementation of the decision pending the finalisation of the application. However, this subsection does not apply to an order under subsection (3).
(3) If:
(a) either:
(i) a person applies to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 for review of a decision to issue a competition notice; or
(ii) a person applies to the Federal Court under subsection 39B(1) of the Judiciary Act 1903 for a writ or injunction in relation to a decision to issue a competition notice; and
(b) any relevant proceedings have been instituted under Division 7 of this Part;
the Federal Court or a Judge of the Federal Court may, by order, on such conditions as the Court or the Judge thinks fit, stay those proceedings.
(4) If:
(a) a person applies to the Federal
(b) any relevant proceedings have been instituted under Division 7 of this Part;
the Federal Magistrates Court or a Federal Magistrate may, by order, on such conditions as the Court or the Federal Magistrate thinks fit, stay those proceedings.
Issue of advisory notice
(1) The Commission may give a carrier or carriage service provider a written notice (an advisory notice) advising the carrier or provider of the action it should take, or consider taking, in order to ensure that it does not engage, or continue to engage, in anti‑competitive conduct.
(2) The Commission does not have a duty to consider whether to issue an advisory notice in relation to:
(a) a particular instance of anti‑competitive conduct; or
(b) a particular kind of anti‑competitive conduct;
before it issues a Part A competition notice in relation to that instance or kind of conduct.
Nature of advisory notice
(3) An advisory notice is an instrument of an advisory character.
Varying or revoking advisory notice
(5) The Commission may vary or revoke an advisory notice.
(6) If an advisory notice is varied, the Commission must give the carrier or carriage service provider concerned a written notice setting out the terms of the variation.
(7) If an advisory notice is revoked, the Commission must give the carrier or carriage service provider concerned a written notice stating that the advisory notice has been revoked.
Publication of advisory notice
(8) If the Commission is satisfied that:
(a) the publication of an advisory notice would result, or be likely to result, in a benefit to the public; and
(b) that benefit would outweigh any substantial prejudice to the commercial interests of a person that would result, or be likely to result, if the advisory notice were published;
the Commission may publish the advisory notice in such manner as it thinks fit.
151AR Register of competition notices
(1) The Commission must keep a Register in relation to competition notices.
(2) The Register must include particulars of all competition notices (including notices that have expired).
(3) The Register may be maintained by electronic means.
(4) A person may, on payment of the fee (if any) specified in the regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(5) For the purposes of this section, if the 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 Commission gives the person a printout of, or of the relevant parts of, the Register.
(6) If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
Subdivision B—Exemption orders
(1) A person may apply to the Commission for an order exempting specified conduct of the person from the scope of section 151AJ (which deals with anti‑competitive conduct). The order is called an exemption order.
(2) An exemption order is not invalid only because the conduct specified in the order is conduct of a kind that, apart from the order, is outside the scope of section 151AJ (which deals with anti‑competitive conduct).
An application for an exemption order must be:
(a) in writing; and
(b) in a form approved in writing by the Commission; and
(c) accompanied by the prescribed fee.
(1) The Commission may request an applicant for an exemption order to give the Commission further information about the application.
(2) The Commission may refuse to consider the application until the applicant gives the Commission the information.
(3) The Commission may withdraw its request for further information, in whole or in part.
151AV Withdrawal of application
An applicant for an exemption order may withdraw the application by written notice given to the Commission.
151AW Commission must publicise receipt of applications
If the Commission receives an application for an exemption order, the Commission must publicise the receipt of the application in such manner as it thinks fit.
151AX Commission may refuse to consider application if it relates to the same conduct as an authorisation application
(1) This section applies if:
(a) the Commission receives, or has received, an application for an exemption order; and
(b) the Commission receives, or has received, an application for an authorisation under Division 1 of Part VII; and
(c) the application for the exemption order and the application for the authorisation relate to the same conduct.
(2) The Commission may refuse to:
(a) consider the application for the exemption order; or
(b) convene a conference under section 151AZ to discuss the application for the exemption order;
until:
(c) the Commission has made a determination under section 90 in relation to the application for the authorisation; or
(d) if the Commission makes such a determination—the expiry of the time limit allowed for a person to apply to the Tribunal for a review of the determination; or
(e) if a person applies to the Tribunal for a review of the determination—the review (including any court proceedings arising out of the review) is finalised.
151AY Commission may refuse to consider application if it relates to the same conduct as a Part VII notification
(1) This section applies if:
(a) the Commission receives, or has received, an application for an exemption order; and
(b) the Commission receives, or has received, a notice under subsection 93(1) or 93AB(1A) or (1); and
(c) the application for the exemption order and the notice relate to the same conduct.
(2) The Commission may refuse to:
(a) consider the application for the exemption order; or
(b) convene a conference under section 151AZ to discuss the application for the exemption order;
until:
(c) the Commission decides whether or not to give a notice under subsection 93(3) or (3A) or 93AC(1) or (2); or
(d) if the Commission gives such a notice—the expiry of the time limit allowed for a person to apply to the Tribunal for review of the decision; or
(e) if a person applies to the Tribunal for a review of the decision—the review (including any court proceedings arising out of the review) is finalised.
151AZ Commission may convene conference to discuss application
(1) If the Commission receives an application for an exemption order, the Commission may convene a conference to discuss the application.
(2) If the Commission decides to convene a conference, the Commission must give:
(a) the applicant (or a representative of the applicant); and
(b) any other persons whom the Commission considers interested;
a reasonable opportunity to attend and take part in the conference.
(3) This Act does not prevent a conference under this section from being combined with a conference under section 90A or 93A if the combined conference relates to the same conduct.
151BA Commission must grant or reject application
If the Commission receives an application for an exemption order, the Commission must either:
(a) make the order; or
(b) refuse to make the order.
151BB Commission to give opportunity for submissions
Before making an exemption order, the Commission must give:
(a) the applicant; and
(b) any other person whom the Commission considers interested;
a reasonable opportunity to make submissions to the Commission about the order.
151BC Criteria for making exemption order
(1) The Commission must not make an exemption order in relation to particular conduct of a person unless it is satisfied that:
(a) both:
(i) the conduct will result, or is likely to result, in a benefit to the public; and
(ii) that benefit outweighs, or will outweigh, the detriment to the public constituted by any lessening of competition that will result, or is likely to result, from engaging in the conduct; or
(b) the conduct is not anti‑competitive conduct.
(2) In determining whether the Commission is satisfied about the matters referred to in paragraph (1)(a), the Commission may have regard to the following matters:
(a) the extent to which the conduct relates to the supply of goods or services on favourable terms and conditions to:
(i) a financially disadvantaged individual; or
(ii) an individual who is disadvantaged on health grounds; or
(iii) a non‑profit community organisation or a non‑profit charitable organisation; or
(iv) an educational institution; or
(v) a health facility;
(b) the extent to which the conduct relates to the supply of goods or services for:
(i) community, charitable or educational purposes; or
(ii) the promotion of health or safety;
on favourable terms and conditions;
(c) the need to satisfy any applicable universal service obligation;
(d) the extent to which the conduct prevents or reduces, or is likely to prevent or reduce, pollution or other forms of degradation of environmental amenity;
(e) the extent to which the conduct contributes, or is likely to contribute, to technical innovation, or the development of new goods or services, by Australian industry.
(3) Subsection (2) does not, by implication, limit the matters to which the Commission may have regard.
(4) The Commission must not make an exemption order in relation to particular conduct of a person if:
(a) the conduct is in contravention of section 46; and
(b) subsection 46(6) does not apply to the conduct.
(5) Subsections 151AJ(4) and (5) apply for the purposes of subsection (4) of this section in a corresponding way to the way in which they apply for the purposes of subsection 151AJ(3).
(6) In this section:
environment includes all aspects of the surroundings of human beings, whether affecting human beings as individuals or in social groupings.
151BD Notification of decision
(1) If the Commission makes an exemption order, the Commission must give the applicant a written notice setting out the order and the reasons for the order.
(2) If the Commission refuses to make an exemption order, the Commission must give the applicant a written notice stating that the order has been refused and setting out the reasons for the refusal.
151BE Duration of exemption order may be limited
An exemption order may be expressed to be in force for a period specified in the order.
151BF Conditions of exemption order
An exemption order may be expressed to be subject to such conditions as are specified in the order.
151BG Revocation of exemption order
(1) If:
(a) an exemption order is in force in relation to a person; and
(b) the Commission is satisfied that:
(i) the order was made on the basis of information that was false or misleading in a material particular; or
(ii) a condition to which the order is subject has been contravened; or
(iii) there has been a material change of circumstances since the order was made;
the Commission may revoke the order.
(2) The Commission must not revoke an exemption order unless the Commission has first:
(a) published a draft notice of revocation and invited people to make submissions to the Commission on the draft notice; and
(b) considered any submissions that were received within the time limit specified by the Commission when it published the draft notice.
(3) The Commission may make a further exemption order under section 151BA in substitution for the revoked order.
(4) If the Commission revokes an exemption order relating to a person, the Commission must give the person a written notice stating that the order has been revoked and setting out the reasons for the revocation.
(5) A revocation of an exemption order takes effect:
(a) at the time when notice of the revocation is given; or
(b) if a later time is specified in the notice of the revocation—at that later time.
151BH Register of exemption orders
(1) The Commission must keep a Register in relation to exemption orders.
(2) The Register must include the following:
(a) particulars of all exemption orders (including orders that have expired);
(b) applications for exemption orders received by the Commission (including applications that have been withdrawn);
(c) particulars of decisions refusing to make exemption orders;
(d) particulars of decisions revoking, or refusing to revoke, exemption orders;
(e) particulars of the Commission’s reasons for making exemption orders.
(3) Despite subsection (2), the Register must not set out information covered by subsection (2) if the disclosure of the information could reasonably be expected to prejudice substantially the commercial interests of the person, or any of the persons, to whom the information relates.
(4) The Register may be maintained by electronic means.
(5) A person may, on payment of the fee (if any) specified in the regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(6) For the purposes of this section, if the 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 Commission gives the person a printout of, or of the relevant parts of, the Register.
(7) If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
151BJ Conduct includes proposed conduct
A reference in this Division to conduct includes a reference to proposed conduct.
151BK Tariff filing directions
(1) This section applies to a person who is a carrier or carriage service provider if the Commission is satisfied that the person has a substantial degree of power in a telecommunications market.
(2) The Commission may give the person a written direction that:
(a) contains a statement to the effect that any or all of the following are within the scope of the direction:
(i) specified carriage services;
(ii) specified ancillary goods;
(iii) specified ancillary services; and
(b) complies with subsection (3), (4) or (5).
The direction is called a tariff filing direction.
Note: For enforcement of tariff filing directions, see Division 7.
(3) A direction complies with this subsection if it contains a requirement that if, at the time the direction is given, the person has charges for goods or services within the scope of the direction, the person must give the Commission, within the period and in the form specified in the direction, a written statement setting out such information about those charges as is specified in the direction.
(4) A direction complies with this subsection if it contains a requirement that the person must, at least 7 days before:
(a) imposing a new charge for goods or services within the scope of the direction at any time when the direction is in force; or
(b) varying a charge for goods or services within the scope of the direction at any time when the direction is in force; or
(c) ceasing to impose a charge for goods or services within the scope of the direction at any time when the direction is in force;
give the Commission, in the form specified in the direction, a written statement setting out such information about the person’s intentions as is specified in the direction.
Note: See subsection (6) for a special rule relating to this subsection.
(5) A direction complies with this subsection if it contains a requirement that, in the event that the person:
(a) imposes a new charge for goods or services within the scope of the direction at any time when the direction is in force; or
(b) varies a charge for goods or services within the scope of the direction at any time when the direction is in force; or
(c) ceases to impose a charge for goods or services within the scope of the direction at any time when the direction is in force;
the person must give the Commission:
(d) within such period after the imposition, variation or cessation, as the case may be, as is specified in the direction; and
(e) in the form specified in the direction;
a written statement setting out such information about the imposition, variation or cessation, as the case may be, as is specified in the direction.
(6) The Commission may, on the application of the person, make a written determination that subsection (4) has effect, in relation to a specified matter, as if the reference in that subsection to 7 days were a reference to such shorter period as is specified in the determination. The determination has effect accordingly.
(7) This section does not, by implication, limit section 87B or 155.
(8) This section does not prevent 2 or more tariff filing directions being given to the same person at the same time.
(9) For the purposes of this section, information relating to the terms and conditions on which goods or services have been, are being or are proposed to be supplied is taken to be information relating to charges that have been imposed, are being imposed or are proposed to be imposed for those goods or services.
(10) A tariff filing direction given before
(11) In this section:
ancillary goods means goods for use in connection with a carriage service.
ancillary service means a service for use in connection with a carriage service.
variation, in relation to a charge, means a variation of the nature of the charge or the amount of the charge, or both.
151BL Specification of goods and services
(1) Goods or services may be specified in a tariff filing direction by reference to any or all of the following:
(a) the nature of the goods or services;
(b) the customers to whom the goods or services are, or are proposed to be, supplied (whether those customers are identified by name, by inclusion in a specified class or in any other way);
(c) the kinds of terms and conditions on which the goods or services are, or are proposed to be, supplied.
(2) Subsection (1) does not, by implication, limit the ways in which goods and services may be specified in a tariff filing direction.
If the Commission gives a tariff filing direction to a person, the Commission must give the person a written notice setting out the reasons for the direction.
151BN Duration of direction may be limited
A tariff filing direction may be expressed to cease to be in force at a time ascertained in accordance with the direction.
Note: A time specified in accordance with the direction may be the time of occurrence of a specified event or the time when a specified condition is satisfied.
(1) If a tariff filing direction relating to a person is in force, the Commission may revoke the direction.
(2) The Commission must give the person a written notice stating that the direction has been revoked.
(3) A revocation of a tariff filing direction takes effect:
(a) at the time when the notice of revocation is given; or
(b) if a later time is specified in the notice of revocation—at that later time.
(1) If a tariff filing direction relating to a person is in force, the Commission may vary the direction.
(2) The Commission must give the person a written notice setting out:
(a) the terms of the variation; and
(b) the reasons for the variation.
(3) A variation of a tariff filing direction takes effect:
(a) at the time when the notice of variation is given; or
(b) if a later time is specified in the notice of variation—at that later time.
151BQ Public access to tariff information
(1) This section applies to a particular item of information given to the Commission by a person (the first person) in accordance with a tariff filing direction.
(2) If the Commission is satisfied that:
(a) the disclosure of the information would result, or be likely to result, in a benefit to the public; and
(b) that benefit would outweigh both:
(i) the detriment to the public constituted by any lessening of competition that would result, or be likely to result, if the information were disclosed; and
(ii) any substantial prejudice to the commercial interests of a person that would result, or be likely to result, if the information were disclosed;
the Commission must give the first person a written notice stating that the Commission intends to make copies of the information, together with copies of the direction, available for inspection and purchase by the public.
(3) If the Commission gives the first person a notice under subsection (2), the Commission must make copies of the information, together with copies of the direction, available for inspection and purchase by the public:
(a) as soon as practicable after the end of the 7‑day period that began when the notice was given to the first person; or
(b) if the Commission decides that the information and direction should not be made available during a further period of up to 14 days—after the end of that further period.
151BR Register of tariff filing directions
(1) The Commission must keep a Register in relation to tariff filing directions.
(2) The Register must include the following:
(a) particulars of all tariff filing directions (including directions that have expired);
(b) particulars of all revocations of tariff filing directions;
(c) particulars of all variations of tariff filing directions.
(3) The Register may be maintained by electronic means.
(4) A person may, on payment of the fee (if any) specified in the regulations:
(a) inspect the Register; and
(b) make a copy of, or take extracts from, the Register.
(5) For the purposes of this section, if the 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 Commission gives the person a printout of, or of the relevant parts of, the Register.
(6) If a person requests that a copy be provided in an electronic form, the Commission may provide the relevant information:
(a) on a data processing device; or
(b) by way of electronic transmission.
151BT Meaning of terms and conditions
In this Division:
terms and conditions, in relation to the supply of goods or services, includes:
(a) charges for the supply of the goods or services; and
(b) any discounts, allowances, rebates or credits given or allowed in relation to the supply of the goods or services; and
(c) any commissions or similar benefits (whether monetary or otherwise) payable or given in relation to the supply of the goods or services; and
(d) the supply of other goods or services, where the other goods or services are supplied in connection with the first‑mentioned goods or services; and
(e) the making of payments for such other goods or services.
Division 5—Tariff filing by Telstra
151BTA Tariff filing by Telstra
(1) This section applies to a charge for a basic carriage service.
(2) At least 7 days before:
(a) imposing a new charge; or
(b) varying a charge; or
(c) ceasing to impose a charge;
Telstra must give the Commission, in a form approved in writing by the Commission, a written statement setting out such information about Telstra’s intentions as the Commission requires.
(3) The Commission may, on the application of Telstra, make a written determination that subsection (2) has effect, in relation to a specified matter, as if the reference in that subsection to 7 days were a reference to such shorter period as specified in the determination.
(4) A determination under subsection (3) has effect accordingly.
(5) Divisions 6 and 7 apply to a contravention of subsection (2) in a corresponding way to the way in which they apply to a contravention of a tariff filing direction.
(6) This section does not, by implication, limit the application of Division 4 to Telstra.
(7) The Commission may, by written notice given to Telstra, exempt a charge for a specified basic carriage service from the scope of subsection (2).
(8) A basic carriage service may be specified for the purposes of subsection (7) by reference to any or all of the following:
(a) the customers to whom the services are, or are proposed to be, supplied;
(b) the kinds of terms and conditions on which the services are, or are proposed to be, supplied.
(9) Subsection (8) does not, by implication, limit subsection (7).
(10) An exemption under subsection (7) may be unconditional or subject to such conditions (if any) as are specified in the exemption.
(11) Section 151BQ applies to information given to the Commission under this section in a corresponding way to the way in which it applies to information given to the Commission in accordance with a tariff filing direction.
(13) In this section:
basic carriage service has the meaning given by section 174
of the Telecommunications Act 1991,
as in force before
existing carrier means a person who held a general
telecommunications licence, or a public mobile licence, that was in force under
the Telecommunications Act 1991 immediately before
Telstra has the same meaning as in the Telstra Corporation Act 1991.
terms and conditions has the same meaning as in section 151BT.
variation, in relation to a charge, means a variation of the nature of the charge or the amount of the charge, or both.
Division 6—Record‑keeping rules and disclosure directions
151BU Commission may make record‑keeping rules
(1) The Commission may, by written instrument, make rules for and in relation to requiring one or more specified carriers or one or more specified carriage service providers to keep and retain records. Rules under this subsection may also require those carriers or carriage service providers to prepare reports consisting of information contained in those records. Rules under this subsection may also require those carriers or carriage service providers to give any or all of the reports to the Commission. Rules under this subsection are to be known as record‑keeping rules.
Note 1: Carriers and carriage service providers may be specified by name, by inclusion in a specified class or in any other way.
Note 2: For enforcement of the record‑keeping rules, see Division 7.
(2) The rules may specify the manner and form in which the records are to be kept.
(2A) The rules may specify the manner and form in which reports are to be prepared.
(2B) The rules may provide for:
(a) the preparation of reports as and when required by the Commission; or
(b) the preparation of periodic reports relating to such regular intervals as are specified in the rules.
(2C) The rules may require or permit a report prepared in accordance with the rules to be given to the Commission, in accordance with specified software requirements and specified authentication requirements:
(a) on a specified kind of data processing device; or
(b) by way of a specified kind of electronic transmission.
(2D) Subsections (2), (2A), (2B) and (2C) do not limit subsection (1).
(3) If the rules apply to a particular carrier or carriage service provider, the Commission must give the carrier or provider a copy of the rules.
(4) The Commission must not exercise its powers under this section so as to require the keeping or retention of records unless the records contain, or will contain, information that is relevant to:
(a) ascertaining whether the competition rule has been, or is being, complied with; or
(b) ascertaining whether tariff filing directions have been, or are being, complied with; or
(c) the operation of this Part (other than this Division); or
(d) the operation of Part XIC (which deals with access); or
(e) the operation of Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or
(f) the operation of Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges).
(5) Record‑keeping rules made before
(6) This section does not limit section 155 (which is about the general information‑gathering powers of the Commission).
151BUAA Minister may give directions to Commission
(1) The Minister may give written directions to the Commission in relation to the exercise of its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC.
(1A) The Minister may only give a direction under subsection (1) that:
(a) requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC; or
(b) requires the Commission to exercise its powers under section 151BU, 151BUDA, 151BUDB or 151BUDC in a particular way.
(1B) The Minister may give a written direction to the Commission requiring it, in the event that it receives a specified Ministerially‑directed report, to:
(a) prepare a specified kind of analysis of the report; and
(b) publish the analysis within a specified period after receiving the report.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(1C) The Minister may give a written direction to the Commission requiring it, in the event that it receives a report in a specified series of Ministerially‑directed periodic reports, to:
(a) prepare a specified kind of analysis of the report; and
(b) publish the analysis within a specified period after receiving the report.
(2) The Commission must comply with a direction under this section.
(3) If:
(a) a record‑keeping rule is made as a result of a direction under subsection (1); and
(b) the rule requires the preparation of a report;
then:
(c) the rule must contain a statement to the effect that the rule was made as a result of a Ministerial direction; and
(d) a report prepared under the rule is to be known as a Ministerially‑directed report.
(4) A direction under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
151BUAAA Minister to give direction to Commission about Telstra’s wholesale operations and retail operations
(1) The Minister must take all reasonable steps to ensure that a special Telstra direction is given within 6 months after the commencement of this section.
(2) For the purposes of this section, a special Telstra direction is a direction under section 151BUAA that:
(a) relates to Telstra’s wholesale operations and retail operations; and
(b) requires the Commission to exercise its powers under section 151BU to make rules requiring Telstra to:
(i) keep and retain particular records; and
(ii) prepare reports consisting of information contained in those records; and
(iii) give those reports to the Commission; and
(c) requires the Commission to exercise its powers under at least one of sections 151BUDA, 151BUDB and 151BUDC in relation to those reports.
(3) Before giving a special Telstra direction in compliance with subsection (1), the Minister must:
(a) publish a draft of the direction and invite people to make submissions to the Minister on the draft direction; and
(b) consider any submissions that are received within the time limit specified by the Minister when he or she published the draft direction.
(4) This section does not, by implication, limit the Minister’s powers to give subsequent directions to the Commission in relation to Telstra’s wholesale operations and retail operations.
(5) In this section:
Telstra has the same meaning as in the Telstra Corporation Act 1991.
wholesale operations includes operations in relation to services that Telstra supplies:
(a) to itself; or
(b) to other persons, in order that the other persons can provide carriage services and/or content services.
151BUAB Request for disclosure
(1) A person may request the Commission to exercise its powers under:
(a) section 151BUA or 151BUB in relation to a particular report; or
(b) section 151BUC in relation to a particular series of periodic reports.
(2) The request must be in writing.
(3) The Commission must consider the request.
(4) However, the Commission need not consider the request if it considers that the request is frivolous, vexatious or was not made in good faith.
151BUA Commission gives access to reports
(1) This section applies to a particular report given to the Commission by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.
Criteria for disclosure
(2) If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to:
(a) promote competition in markets for listed carriage services; or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(iii) Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider concerned:
(c) a written notice stating that the Commission intends to make copies of the report or extracts, together with other relevant material (if any) specified in the notice, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the notice; or
(d) a written notice stating that the Commission intends to make copies of the report or extracts, together with other relevant material (if any) specified in the notice, available for inspection and purchase:
(i) by such persons as are specified in the notice; and
(ii) on such terms and conditions (if any) as are specified in the notice;
as soon as practicable after the end of the period specified in the notice.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Period specified in notice
(3) The period specified in a notice under subsection (2) must run for at least 28 days after the notice was given.
Criteria for giving notice
(4) In deciding whether to give a notice under subsection (2), the Commission must have regard to:
(a) the legitimate commercial interests of the carrier or carriage service provider concerned; and
(b) such other matters as the Commission considers relevant.
Consultation before giving notice
(5) The Commission must not give the carrier or carriage service provider concerned a notice under subsection (2) unless the Commission has first:
(a) given the carrier or carriage service provider a written notice:
(i) setting out a draft version of the notice under subsection (2); and
(ii) inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and
(b) considered any submission that was received within that time limit.
The time limit specified in a notice under paragraph (a) must be at least 28 days after the notice was given.
Public access
(6) If the Commission gives the carrier or carriage service provider concerned a notice under paragraph (2)(c), the Commission:
(a) must make copies of the report or extracts, together with the other material (if any) specified in the notice, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the notice; and
(b) may also give a written direction to the carrier or carriage service provider concerned requiring it to take such action as is specified in the direction to inform the public, or such persons as are specified in the direction, that the report is, or the extracts are, so available.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(7) A person must comply with a direction under paragraph (6)(b).
Limited access
(8) If the Commission gives the carrier or carriage service provider concerned a notice under paragraph (2)(d), the Commission must:
(a) make copies of the report or extracts, together with the other material (if any) specified in the notice, available for inspection and purchase by the persons specified in the notice as soon as practicable after the end of the period specified in the notice; and
(b) take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the notice.
(9) If, in accordance with subsection (8), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the notice concerned.
Offences
(10) A person who contravenes subsection (7) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.
(11) A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.
151BUB Carrier or carriage service provider gives access to reports
(1) This section applies to a report prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.
Disclosure direction
(2) If the Commission is satisfied that the disclosure of the report, or the disclosure of particular extracts from the report, would be likely to:
(a) promote competition in markets for listed carriage services; or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(iii) Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider concerned:
(c) a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase by the public as soon as practicable after the end of the period specified in the direction; or
(d) a written direction requiring it to make copies of the report or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase:
(i) by such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in the direction;
as soon as practicable after the end of the period specified in the direction.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(3) The period specified in a direction under subsection (2) must run for at least 28 days after the direction was given.
(4) A direction under paragraph (2)(d) is also taken to require the carrier or carriage service provider concerned to take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.
Criteria for giving direction
(5) In deciding whether to give a direction under subsection (2), the Commission must have regard to:
(a) the legitimate commercial interests of the carrier or carriage service provider concerned; and
(b) such other matters as the Commission considers relevant.
Consultation before giving direction
(6) The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first:
(a) given the carrier or carriage service provider a written notice:
(i) setting out a draft version of the direction; and
(ii) inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and
(b) considered any submission that was received within that time limit.
The time limit specified in the notice must be at least 28 days after the notice was given.
Direction to give information about availability of report
(7) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(c), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public that the report is, or extracts are, available for inspection and purchase.
(8) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(d), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(d) direction that the report is, or the extracts are, available for inspection and purchase.
(9) A person must comply with a direction under subsection (7) or (8).
Reasonable charge
(10) The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase.
Compliance with terms and conditions
(11) If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
(12) A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.
(13) A person who contravenes subsection (11) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.
Section 151BUC does not limit this section
(14) Section 151BUC does not limit this section.
151BUC Carrier or carriage service provider gives access to periodic reports
(1) This section applies to a particular series of periodic reports that are required to be prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.
Disclosure direction
(2) If the Commission is satisfied that the disclosure of each of the reports in that series, or the disclosure of particular extracts from each of the reports in that series, would be likely to:
(a) promote competition in markets for listed carriage services; or
(b) facilitate the operation of:
(i) this Part (other than this Division); or
(ii) Part XIC (which deals with access); or
(iii) Division 3 of Part 20 of the Telecommunications Act 1997 (which deals with Rules of Conduct relating to dealings with international telecommunications operators); or
(iv) Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (which deals with regulation of Telstra’s charges);
the Commission may give the carrier or carriage service provider concerned:
(c) a written direction requiring it to make copies of each of those reports or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase by the public by such times as are ascertained in accordance with the direction; or
(d) a written direction requiring it to make copies of each of those reports or extracts, together with other relevant material (if any) specified in the direction, available for inspection and purchase:
(i) by such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in the direction;
by such times as are ascertained in accordance with the direction.
Note 1: For example, a direction under paragraph (2)(c) could require that each report in a particular series of quarterly reports be made available by the 28th day after the end of the quarter to which the report relates.
Note 2: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(3) In the case of the first report in the series (or extracts from that report), the applicable time ascertained in accordance with a direction under subsection (2) must be later than the 28th day after the day on which the direction was given.
(4) A direction under paragraph (2)(d) is also taken to require the carrier or carriage service provider concerned to take reasonable steps to inform the persons who inspect or purchase copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.
Criteria for giving direction
(5) In deciding whether to give a direction under subsection (2), the Commission must have regard to:
(a) the legitimate commercial interests of the carrier or carriage service provider concerned; and
(b) such other matters as the Commission considers relevant.
Consultation before giving direction
(6) The Commission must not give the carrier or carriage service provider concerned a direction under subsection (2) unless the Commission has first:
(a) given the carrier or carriage service provider a written notice:
(i) setting out a draft version of the direction; and
(ii) inviting the carrier or carriage service provider to make a submission to the Commission on the draft by a specified time limit; and
(b) considered any submission that was received within that time limit.
The time limit specified in the notice must be at least 28 days after the notice was given.
Direction to give information about availability of reports
(7) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(c), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public that each of those reports is, or extracts are, available for inspection and purchase.
(8) If the Commission gives the carrier or carriage service provider concerned a direction under paragraph (2)(d), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(d) direction that each of those reports is, or the extracts are, available for inspection and purchase.
(9) A person must comply with a direction under subsection (7) or (8).
Reasonable charge
(10) The price charged by the carrier or carriage service provider concerned for the purchase of a copy of the report or extracts and the other material (if any) must not exceed the reasonable costs incurred by the carrier or carriage service provider concerned in making the copy of the report or extracts and the other material (if any) available for purchase.
Compliance with terms and conditions
(11) If, in accordance with a direction under paragraph (2)(d), a person inspects or purchases a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
(12) A person who contravenes subsection (9) is guilty of an offence punishable on conviction by a fine not exceeding 20 penalty units.
(13) A person who contravenes subsection (11) is guilty of an offence punishable on conviction by a fine not exceeding 100 penalty units.
151BUD Exemption of reports from access requirements
Full exemption
(1) The Commission may make a written determination exempting specified reports from the scope of sections 151BUA, 151BUB and 151BUC, either:
(a) unconditionally; or
(b) subject to such conditions (if any) as are specified in the determination.
The determination has effect accordingly.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(2) If all of the information contained in a report (the first report) is, or is to be, set out in a report under Division 12A, the first report is exempt from the scope of sections 151BUA, 151BUB and 151BUC.
Partial exemption
(3) The Commission may make a written determination that specified information is exempt information for the purposes of this section, either:
(a) unconditionally; or
(b) subject to such conditions (if any) as are specified in the determination.
The determination has effect accordingly.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(4) If some, but not all, of the information contained in a report is, or is to be, set out in a report under Division 12A, so much of the information as is, or is to be, set out in the Division 12A report is exempt information for the purposes of this section.
(5) If a report contains exempt information, sections 151BUA, 151BUB and 151BUC apply as if:
(a) the exempt information were not part of the report; and
(b) so much of the report as does not consist of the exempt information were a report in its own right.
Disallowable instrument
(6) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
151BUDA Commission gives access to Ministerially‑directed reports
(1) This section applies to a particular Ministerially‑directed report given to the Commission by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.
Public access
(2) The Commission:
(a) may make:
(i) copies of the report or copies of extracts from the report; and
(ii) such other relevant material (if any) as the Commission determines;
available to the public; and
(b) may also give a written direction to the carrier or provider requiring it to take such action as is specified in the direction to inform the public, or such persons as are specified in the direction, that the report is, or the extracts are, so available.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
Limited access
(3) The Commission may make:
(a) copies of the report or copies of extracts from the report; and
(b) such other relevant material (if any) as the Commission determines;
available:
(c) to particular persons; and
(d) on such terms and conditions (if any) as the Commission determines.
(4) If subsection (3) applies, the Commission must take reasonable steps to inform the persons who access copies of the report or extracts of the terms and conditions (if any) on which the copies are available.
(5) If, in accordance with subsection (3), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) on which the copy is available.
Offences
(6) A person is guilty of an offence if:
(a) the person is subject to a direction under paragraph (2)(b); and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(7) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (5); and
(b) the person does an act or omits to do an act; and
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(8) The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.
Application of section 151BUA
(9) This section does not limit section 151BUA.
151BUDB Carrier or carriage service provider gives access to Ministerially‑directed reports
(1) This section applies to a Ministerially‑directed report prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.
Disclosure direction
(2) The Commission may give the carrier or provider:
(a) a written direction requiring it to make copies of the report or copies of particular extracts from the report, together with other relevant material (if any) specified in the direction, available:
(i) to the public; and
(ii) in the manner specified in the direction; and
(iii) as soon as practicable after the end of the period specified in the direction; or
(b) a written direction requiring it to make copies of the report or copies of particular extracts from the report, together with other relevant material (if any) specified in the direction, available:
(i) to such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in the direction; and
(iii) in the manner specified in the direction; and
(iv) as soon as practicable after the end of the period specified in the direction.
Note: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(3) A direction under paragraph (2)(b) is also taken to require the carrier or provider to take reasonable steps to inform the persons who access the copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.
Direction to give information about availability of report
(4) If the Commission gives the carrier or provider a direction under paragraph (2)(a), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public:
(a) that the report is, or extracts are, available; and
(b) of the way in which the report or extracts may be accessed.
(5) If the Commission gives the carrier or provider a direction under paragraph (2)(b), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(b) direction that:
(a) the report is, or the extracts are, available; and
(b) of the way in which the report or extracts may be accessed.
Compliance with terms and conditions
(6) If, in accordance with a direction under paragraph (2)(b), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
(7) A person is guilty of an offence if:
(a) the person is subject to a direction under subsection (4) or (5); and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(8) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (6); and
(b) the person does an act or omits to do an act; and
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(9) The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.
Application of section 151BUB
(10) This section does not limit section 151BUB.
Application of section 151BUDC
(11) Section 151BUDC does not limit this section.
151BUDC Carrier or carriage service provider gives access to Ministerially‑directed periodic reports
(1) This section applies to a particular series of Ministerially‑directed periodic reports that are required to be prepared by a carrier, or a carriage service provider, in accordance with the record‑keeping rules.
Disclosure direction
(2) The Commission may give the carrier or provider:
(a) a written direction requiring it to make copies of each of the reports in that series or copies of particular extracts from each of the reports in that series, together with other relevant material (if any) specified in the direction, available:
(i) to the public; and
(ii) in the manner specified in the direction; and
(iii) by such times as are ascertained in accordance with the direction; or
(b) a written direction requiring it to make copies of each of the reports in the series or copies of particular extracts from each of the reports in the series, together with other relevant material (if any) specified in the direction, available:
(i) to such persons as are specified in the direction; and
(ii) on such terms and conditions (if any) as are specified in the direction; and
(iii) in the manner specified in the direction; and
(iv) by such times as are ascertained in accordance with the direction.
Note 1: For example, a direction under paragraph (2)(a) could require that each report in a particular series of quarterly reports be made available by the 28th day after the end of the quarter to which the report relates.
Note 2: For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901.
(3) A direction under paragraph (2)(b) is also taken to require the carrier or provider to take reasonable steps to inform the persons who access the copies of the report or extracts of the terms and conditions (if any) that are specified in the direction.
Direction to give information about availability of report
(4) If the Commission gives the carrier or provider a direction under paragraph (2)(a), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the public:
(a) that each of those reports is, or extracts are, available; and
(b) of the way in which those reports or extracts may be accessed.
(5) If the Commission gives the carrier or provider a direction under paragraph (2)(b), the Commission may also give it a written direction requiring it to take such action as is specified in the direction to inform the persons specified in the paragraph (2)(b) direction:
(a) that each of those reports is, or extracts are, available; and
(b) of the way in which those reports or extracts may be accessed.
Compliance with terms and conditions
(6) If, in accordance with a direction under paragraph (2)(b), a person accesses a copy of the report or extracts, the person must comply with the terms and conditions (if any) that are specified in the direction.
Offences
(7) A person is guilty of an offence if:
(a) the person is subject to a direction under subsection (4) or (5); and
(b) the person omits to do an act; and
(c) the omission breaches the direction.
Penalty: 20 penalty units.
(8) A person is guilty of an offence if:
(a) the person is subject to a requirement under subsection (6); and
(b) the person does an act or omits to do an act; and
(c) the act or omission breaches the requirement.
Penalty: 100 penalty units.
Exercise of power by Commission
(9) The Commission may only exercise a power under this section as required by a direction in force under section 151BUAA.
Application of section 151BUC
(10) This section does not limit section 151BUC.
Application of section 151BUDB
(11) Section 151BUDB does not limit this section.
151BUE Access via the Internet
If the Commission, a carrier or a carriage service provider is required under this Division to make copies of a report, extracts or other material available for inspection and purchase, the Commission, carrier or carriage service provider, as the case may be, may comply with that requirement by making the report, extracts or other material available for inspection and purchase on the Internet.
(1) An individual is not excused from giving a report under the record‑keeping rules, or from making a report or extracts available under this Division, on the ground that the report or extracts might tend to incriminate the individual or expose the individual to a penalty.
(2) However:
(a) giving the report or making the report or extracts available; or
(b) any information, document or thing obtained as a direct or indirect consequence of giving the report or making the report or extracts available;
is not admissible in evidence against the individual in:
(c) criminal proceedings other than proceedings under, or arising out of, section 151BV; or
(d) proceedings under section 151BY for recovery of a pecuniary penalty in relation to a contravention of a disclosure direction.
(1) A person must not, in purported compliance with a requirement imposed by the record‑keeping rules, make a record of any matter or thing in such a way that it does not correctly record the matter or thing.
(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by imprisonment for a term not exceeding 6 months.
Note: See also sections 4AA and 4B of the Crimes Act 1914.