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Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 (47 of 2020)

Schedule 4 Funding of fixed wireless broadband and satellite broadband

Telecommunications (Consumer Protection and Service Standards) Act 1999

13 After Part 2

Insert:

Part 3 - Funding of fixed wireless broadband and satellite broadband

Division 1 - Introduction

75 Simplified outline of this Part

• The Secretary is responsible for entering into contracts, and making grants, relating to:

(a) fixed wireless broadband; and

(b) satellite broadband.

• The ACMA will assess and collect the charge imposed on carriers by the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

• The proceeds of the charge will be used to:

(a) pay contractors and grant recipients; and

(b) offset designated administrative costs.

76 Definitions

In this Part:

administrative cost instalment of charge has the meaning given by subsection 102D(5).

amount includes a nil amount.

annual administrative cost amount , for a financial year, has the same meaning as in the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

annual base amount , for a financial year, has the same meaning as in the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

annual chargeable premises amount , for a financial year, has the same meaning as in the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

associate has the same meaning as in Part 8 of the Telecommunications Act 1997.

base instalment of charge has the meaning given by subsection 102D(5).

broadcast television stream means a continuous stream of program material that is identical to the program material provided by:

(a) a licensed television broadcasting service; or

(b) a national television broadcasting service.

charge means charge imposed by the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

chargeable premises associated with a local access line of a personhas the meaning given by section 93.

charge offset certificate means a certificate issued under section 98.

contractor has the meaning given by section 80.

declared service has the same meaning as in Part XIC of the Competition and Consumer Act 2010.

designated administrative costs means:

(a) remuneration, and other employment-related costs and expenses, incurred in respect of APS employees whose duties relate to the performance of the ACMA's functions, or the exercise of the ACMA's powers, under this Part; or

(b) any other costs, expenses and other obligations incurred by the ACMA in connection with the performance of the ACMA's functions, or the exercise of the ACMA's powers, under this Part; or

(c) remuneration, and other employment-related costs and expenses, incurred in respect of APS employees whose duties relate to the performance of the ACCC's functions, or the exercise of the ACCC's powers, under this Part or the Telecommunications (Regional Broadband Scheme) Charge Act 2020; or

(d) any other costs, expenses and other obligations incurred by the ACCC in connection with the performance of the ACCC's functions, or the exercise of the ACCC's powers, under this Part or the Telecommunications (Regional Broadband Scheme) Charge Act 2020;

but does not include:

(e) amounts incurred under contracts made under section 80; and

(f) amounts incurred by way of grants made under section 80.

designated broadband service has the meaning given by section 76AA.

designated start date means 1 January 2021.

eligible financial year has the meaning given by section 79.

eligible funding recipient has the meaning given by section 78.

eligible service has the same meaning as in section 152AL of the Competition and Consumer Act 2010.

exempt line has the meaning given by section 96.

exempt premises has the meaning given by section 95.

financial year has a meaning affected by section 78A.

fixed wireless broadband service has the meaning given by section 76AB.

grant recipient has the meaning given by section 80.

instalment of charge: see subsection 102D(5).

licensed television broadcasting service means a broadcasting service that:

(a) is provided in accordance with:

(i) a licence allocated by the ACMA under the Broadcasting Services Act 1992; or

(ii) a class licence determined by the ACMA under the Broadcasting Services Act 1992; and

(b) provides television programs.

local access line has the meaning given by section 76A.

month means calendar month.

multi-unit building means:

(a) a building that has 2 or more units for occupation as a place of residence or business; or

(b) a building in a complex, where each building has 2 or more units for occupation as a place of residence or business.

national television broadcasting service means a broadcasting service that:

(a) is a national broadcasting service within the meaning of the Broadcasting Services Act 1992; and

(b) provides television programs.

NBN Co has the same meaning as in the National Broadband Network Companies Act 2011.

nominal funding entitlement of a person for a financial year means the amount specified in a nominal funding entitlement certificate that:

(a) is held by the person; and

(b) relates to the financial year.

nominal funding entitlement certificate means a certificate issued under section 86.

potentially chargeable premises has the meaning given by section 94.

potentially concessional premises has the meaning given by section 96A.

Note: See also subsection 100(5).

premises has a meaning affected by section 79A.

recently connected greenfield premises , in relation to a person for a month,has the meaning given by section 96B.

Note: See also subsection 100(11).

Regional Broadband Scheme Special Account means the Regional Broadband Scheme Special Account established by section 89.

residential customer has the same meaning as in Part 8 of the Telecommunications Act 1997.

satellite broadband service has the meaning given by section 77.

small business customer means:

(a) a customer who is a small business employer (within the meaning of the Fair Work Act 2009); or

(b) a customer who:

(i) carries on a business; and

(ii) does not have any employees.

For the purposes of paragraph (a) of this definition, it is to be assumed that each reference in section 23 of the Fair Work Act 2009 to a national system employer were a reference to an employer (within the ordinary meaning of that expression).

superfast carriage service means a carriage service, where:

(a) the carriage service enables end-users to download communications; and

(b) the download transmission speed of the carriage service is normally 25 megabits per second or more; and

Note: The line does not need to be physically connected to the premises. This is because using has an extended meaning - see subsection 5(1) of this Act and section 24 of the Telecommunications Act 1997 (when read together with section 18A of the Acts Interpretation Act 1901).

76A Local access line

(1) For the purposes of this Part, a local access line is a line that is part of the infrastructure of a local access network.

(2) However, a line does not form part of a local access line to the extent that the line is on the customer side of the boundary of a telecommunications network.

(3) Subsection (2) has effect subject to subsection (4).

(4) For the purposes of this Part, if a line in a multi-unit building is used to supply a carriage service to a unit in the building, the line is taken to be a local access line .

(5) For the purposes of this section, the boundary of a telecommunications network is to be determined in the same manner in which it is determined under section 22 for the purposes of sections 20, 21 and 30.

(6) For the purposes of this section, local access network has the meaning generally accepted within the telecommunications industry.

76AA Designated broadband services

(1) For the purposes of this Part, designated broadband service means a carriage service that is supplied using a local access line, where:

(a) the carriage service enables end-users to download communications; and

(b) the local access line is part of the infrastructure of a telecommunications network in Australia; and

but does not include:

(d) a carriage service that can only be used by an end-user to make and receive voice calls; or

(e) a carriage service that can only be used by an end-user to view one or more broadcast television streams; or

(f) a carriage service that belongs to a class determined under subsection (2).

Note: See also section 102ZH.

(2) The Minister may, by legislative instrument, determine one or more classes of carriage service for the purposes of paragraph (1)(f).

Note: See also section 102ZFB (disallowance of determinations).

76AB Fixed wireless broadband service

(1) For the purposes of this Part, fixed wireless broadband service means a carriage service, where:

(a) the carriage service is supplied using a fixed wireless technology platform; and

(b) the carriage service is marketed to customers, or potential customers, as a fixed wireless service; and

(d) the peak download transmission speed of the carriage service is at least 25 megabits per second; and

(e) the peak upload transmission speed of the carriage service is at least 5 megabits per second; and

(f) the carriage service is not a public mobile telecommunications service; and

(g) the carriage service is a listed carriage service; and

(h) the conditions (if any) determined under subsection (2) are satisfied.

(2) The Minister may, by legislative instrument, determine one or more conditions for the purposes of paragraph (1)(h).

(3) For the purposes of this section, fixed wireless technology platform has the meaning generally accepted within the telecommunications industry.

77 Satellite broadband service

(1) For the purposes of this Part, satellite broadband service means a carriage service, where:

(a) the carriage service is supplied using a satellite; and

(b) the carriage service enables end-users to download communications; and

(d) the peak upload transmission speed of the carriage service is at least 5 megabits per second; and

(e) the carriage service is not a public mobile telecommunications service; and

(f) the carriage service is a listed carriage service; and

(g) the conditions (if any) determined under subsection (2) are satisfied.

(2) The Minister may, by legislative instrument, determine one or more conditions for the purposes of paragraph (1)(g).

78 Eligible funding recipients

(1) For the purposes of this Part, eligible funding recipient means a carrier that is:

(a) an NBN corporation; or

(b) determined under subsection (2).

(2) The Minister may, by legislative instrument, determine one or more carriers for the purposes of paragraph (1)(b).

78A Financial year

For the purposes of this Part (other than section 85), the 6-month period beginning on the designated start date is taken to be a financial year.

79 Eligible financial year

For the purposes of this Part, eligible financial year means:

(a) the financial year beginning on the designated start date; or

(b) a later financial year.

79A Premises

(1) The Minister may, by legislative instrument, determine that, if a location satisfies one or more specified conditions, the location is taken to be premises for the purposes of this Part.

Note: See also section 102ZFB (disallowance of determinations).

(2) The Minister may, by legislative instrument, determine that, if a location satisfies one or more specified conditions, the location is taken not to be premises for the purposes of this Part.

Note: See also section 102ZFB (disallowance of determinations).

(3) A determination under subsection (1) or (2) must be of a legislative character.

Division 2 - Contracts and grants relating to fixed wireless broadband and satellite broadband

80 Contracts and grants

(1) The Secretary may, on behalf of the Commonwealth:

(a) enter into a contract with; or

(b) make a grant of financial assistance to;

an eligible funding recipient in relation to:

(i) fixed wireless broadband services to an end-user at the premises; or

(ii) satellite broadband services to an end-user at the premises; or

(d) the supply of eligible services to a carriage service provider in order that the carriage service provider can provide:

(i) fixed wireless broadband services to an end-user at premises; or

(ii) satellite broadband services to an end-user at premises; or

(e) facilities that are used, or proposed to be used, to supply:

(i) fixed wireless broadband services; or

(ii) satellite broadband services; or

(f) a matter that is incidental or ancillary to a matter mentioned in paragraph (c), (d) or (e).

(2) For the purposes of this Part, if the Secretary enters into a contract with a person under subsection (1), the person is a contractor .

(3) For the purposes of this Part, if the Secretary makes a grant of financial assistance to a person under subsection (1), the person is a grant recipient .

(4) A contract under subsection (1) may provide for the Commonwealth to reimburse, or partly reimburse, costs or expenses.

(5) A grant under subsection (1) may be made by way of the reimbursement, or partial reimbursement, of costs or expenses.

(6) Subsections (4) and (5) do not limit subsection (1).

(7) To avoid doubt, the use of the word "Regional"in:

(a) the short title of the Telecommunications (Regional Broadband Scheme) Charge Act 2020; or

(b) the name of the Regional Broadband Scheme Special Account; or

does not limit subsection (1) of this section.

81 Terms and conditions of grants

Scope

(1) This section applies to a grant of financial assistance made under section 80.

Terms and conditions

(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the grant recipient.

(3) An agreement under subsection (2) is to be entered into by the Secretary on behalf of the Commonwealth.

(4) Subsection (2) does not apply to a condition under section 82.

82 Condition about compliance with Ministerial determination

Condition

(1) It is a condition of:

(a) a contract entered into under section 80; or

(b) a grant made under section 80;

that the contractor or grant recipient, as the case may be, must comply with a determination under subsection (2) in so far as the determination applies to the contract or grant, as the case may be.

Determination

(2) The Minister may, by legislative instrument, make a determination that sets out either or both of the following:

(a) standards or rules that must be complied with by contractors or grant recipients, as the case may be, in relation to contracts entered into, or grants made, under section 80;

(b) minimum benchmarks that must be met or exceeded by contractors or grant recipients, as the case may be, in relation to contracts entered into, or grants made, under section 80.

Application of determinations

(3) A determination under subsection (2) may be of general application or may be limited as provided in the determination.

(4) Subsection (3) does not, by implication, limit subsection 33(3A) of the Acts Interpretation Act 1901.

Other terms and conditions

(5) This section does not, by implication, limit:

(a) the terms and conditions that may be included in a contract entered into under section 80; or

(b) the terms and conditions that may be included in an agreement under section 81.

Determination prevails over inconsistent contract or agreement

(6) A term or condition:

(a) of a contract entered into under section 80; or

(b) set out in an agreement under section 81;

has no effect to the extent to which it is inconsistent with a determination under subsection (2) that applies to the contract or to the grant to which the agreement relates, as the case may be.

(7) Despite subsection (6), a determination under subsection (2) has no effect to the extent to which it overrides a term or condition:

(a) of a contract entered into under section 80; and

(b) that gives the contractor a right to adjustment of payment for a change in the services, facilities or customer equipment to be supplied by the contractor in accordance with the contract.

(8) Despite subsection (6), a determination under subsection (2) has no effect to the extent to which it specifies the price, or a method of ascertaining the price, for any of the services, facilities or customer equipment to be supplied by a contractor in accordance with a section 80 contract.

(9) Despite subsection (6), a determination under subsection (2) has no effect to the extent to which it overrides a term or condition:

(a) set out in an agreement under section 81; and

(b) that gives the grant recipient a right to adjustment of payment for a change in the services, facilities or customer equipment to be supplied by the grant recipient in accordance with the terms and conditions of the grant.

(10) Despite subsection (6), a determination under subsection (2) has no effect to the extent to which it specifies the price, or a method of ascertaining the price, for any of the services, facilities or customer equipment to be supplied by the grant recipient of a section 80 grant in accordance with the terms and conditions of the grant.

83 Secretary has powers etc. of the Commonwealth

(1) The Secretary, on behalf of the Commonwealth, has all the rights, responsibilities, duties and powers of the Commonwealth in relation to the Commonwealth's capacity as:

(a) a party to a contract entered into under section 80; or

(b) the grantor of a grant made under section 80.

(2) Without limiting subsection (1):

(a) an amount payable by the Commonwealth under a section 80 contract is to be paid by the Secretary on behalf of the Commonwealth; and

(b) an amount payable to the Commonwealth under a section 80 contract is to be paid to the Secretary on behalf of the Commonwealth; and

(d) an amount payable to the Commonwealth by way of the repayment of the whole or a part of a section 80 grant is to be paid to the Secretary on behalf of the Commonwealth; and

(e) the Secretary may institute an action or proceeding on behalf of the Commonwealth in relation to a matter that concerns:

(i) a section 80 contract; or

(ii) a section 80 grant.

84 Conferral of powers on the Secretary

The Secretary may exercise a power conferred on the Secretary by:

(a) a contract entered into under section 80; or

(b) an agreement under section 80.

85 Monitoring of performance

(1) The Secretary must monitor, and report each financial year to the Minister on, all significant matters relating to:

(a) the performance of contractors; and

(b) the performance of grant recipients.

(2) A report under subsection (1) for a financial year must set out details of the following matters:

(a) the adequacy of each contractor's compliance, during that year, with the terms and conditions of a section 80 contract;

(b) the adequacy of each grant recipient's compliance, during that year, with the terms and conditions of a section 80 grant;

(d) any notice of breach by a grant recipient of a term or condition of a section 80 grant, where the notice was given during that year;

(e) any remedial action taken by the Secretary during that year in response to a breach of a section 80 contract;

(f) any remedial action taken by the Secretary during that year in response to a breach of the terms or conditions of a section 80 grant;

(g) the result of any such remedial action.

(3) Subsection (2) does not limit subsection (1).

(4) A report under subsection (1) for a financial year must be included in the annual report prepared by the Secretary and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for the financial year.

86 Nominal funding entitlement certificate

Funding financial year

(1) For the purposes of this section, funding financial year means:

(a) the second eligible financial year; or

(b) a later eligible financial year.

Issue of certificate

(2) If a carrier is an eligible funding recipient at the start of 1 February in a funding financial year, the Secretary must:

(a) issue to the carrier a certificate stating that a specified amount is the nominal funding entitlement of the carrier for the funding financial year; and

(b) do so:

(i) by the end of 31 March in the funding financial year; and

(ii) if the carrier has applied under subsection 98(1) for a charge offset certificate in relation to the previous financial year - before making a decision in response to the application.

(3) A certificate issued under subsection (1) is to be known as a nominal funding entitlement certificate .

Estimated balance of Regional Broadband Scheme Special Account

(4) The following provisions have effect in relation to the issue of nominal funding entitlement certificates in relation to a funding financial year:

(a) before issuing those certificates, the Secretary must make an estimate of so much of the balance of the Regional Broadband Scheme Special Account as at 7 May in the funding financial year as is attributable to amounts paid to the Commonwealth by way of:

(i) so much of an amount of charge as is attributable to the annual base amount for a financial year; or

(ii) a base instalment of charge; and

(b) in issuing those certificates, the Secretary must have regard to that estimate.

Payments to holder of certificate

(5) If:

(a) a carrier is an eligible funding recipient; and

(b) the carrier is the holder of a nominal funding entitlement certificate in relation to a funding financial year;

the Secretary must take all reasonable steps to ensure that the total of:

(c) the amounts that have, or will, become due and payable by the Commonwealth to the carrier under section 80 contracts during the funding financial year; and

(d) the section 80 grants that were, or will be, made to the carrier during the funding financial year;

equals whichever of the following amounts is applicable:

(e) if the carrier holds a charge offset certificate for the previous financial year - the nominal funding entitlement of the carrier for the funding financial year, reduced by the amount specified in the charge offset certificate;

(f) if the carrier does not hold a charge offset certificate for the previous financial year - the nominal funding entitlement of the carrier for the funding financial year.

Copy of certificate to be given to the ACMA

(6) If the Secretary issues a nominal funding entitlement certificate, the Secretary must give a copy of the certificate to the ACMA.

Publication of certificate

(7) If the Secretary issues a nominal funding entitlement certificate, the Secretary must publish a copy of the certificate on the Department's website.

Certificate cannot be transferred

(8) A nominal funding entitlement certificate cannot be transferred.

87 Secretary to comply with rules

(1) The Minister may, by legislative instrument, make rules to be complied with by the Secretary in relation to the performance of the Secretary's functions, or the exercise of the Secretary's powers, under this Division.

(2) The Secretary must comply with any rules in force under subsection (1).

88 Executive power of the Commonwealth

This Division does not, by implication, limit the executive power of the Commonwealth.

Division 3 - Regional Broadband Scheme Special Account

89 Regional Broadband Scheme Special Account

(1) The Regional Broadband Scheme Special Account is established by this section.

(2) The Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.

90 Credits to the Account

There must be credited to the Regional Broadband Scheme Special Account:

(a) an amount equal to an amount paid to the Commonwealth by way of:

(i) charge; or

(ii) an instalment of charge; and

(b) an amount equal to an amount paid to the Commonwealth under a section 80 contract; and

(c) an amount equal to an amount paid to the Commonwealth by way of damages or compensation for a breach of a section 80 contract; and

(d) an amount equal to an amount paid to the Commonwealth by way of the repayment of the whole or a part of a section 80 grant.

Note: An Appropriation Act may contain a provision to the effect that, if any of the purposes of a special account is a purpose that is covered by an item in the Appropriation Act (whether or not the item expressly refers to the special account), then amounts may be debited against the appropriation for that item and credited to that special account.

91 Distribution of whole or part of balance of the Account

(1) If:

(a) the whole or a part of the balance standing to the credit of the Regional Broadband Scheme Special Account at a particular time is attributable to charge paid by particular carriers; and

(b) a determination is in force under subsection (2);

the Secretary may, on behalf of the Commonwealth, distribute to those carriers the whole or a part of the balance.

(2) The Minister may, by legislative instrument, determine:

(a) rules to be complied with by the Secretary in relation to the timing of distributions under subsection (1); and

(b) a method to be applied by the Secretary in making distributions under subsection (1).

(3) The Secretary must comply with a determination in force under subsection (2).

92 Purposes of the Account

The purposes of the Regional Broadband Scheme Special Account are as follows:

(a) to pay amounts payable by the Commonwealth under a contract entered into under section 80;

(b) to make grants under section 80;

(d) to pay refunds under section 99 or 102J.

Note: See section 80 of the Public Governance, Performance and Accountability Act 2013 (which deals with special accounts).

92A Offset for designated administrative costs - transfer to general CRF

(1) The Secretary may, by notifiable instrument, direct that a specified amount is to be debited from the Regional Broadband Scheme Special Account.

(2) The total of the amounts debited under subsection (1) must not exceed whichever is the lesser of the following:

(a) the total of the relevant Budget amounts (see subsection (3));

(b) the total of the amounts paid to the Commonwealth by way of:

(i) so much of an amount of charge as is attributable to the annual administrative cost amount for a financial year; or

(ii) an administrative cost instalment of charge.

(3) For the purposes of this section, relevant Budget amounts are to be ascertained using the following table.

R elevant Budget amounts
Item	Document	Location in document	Relevant Budget amount
1	Portfolio Additional Estimates Statements for 2016-17 for the Treasury Portfolio	table that relates to the ACCC's Entity 2016-17 measures since Budget	the amount shown in the table in the column headed 2016-17 opposite the entry relating to Regional Broadband Scheme Departmental expenses
2	Portfolio Additional Estimates Statements for 2016-17 for the Communications and the Arts Portfolio	table that relates to the ACMA's Entity 2016-17 measures since Budget	the amount shown in the table in the column headed 2016-17 opposite the entry relating to Regional Broadband Scheme Departmental capital
3	Portfolio Budget Statements for 2018-19 for the Department	table that relates to Budgeted expenses for the Department	the amount shown in the table in the column headed 2017-18 opposite the entry relating to Regional Broadband Scheme Special Account Departmental expenses
4	Portfolio Budget Statements for: (a) the 2018-19 financial year; or (b) a later financial year; for the Department	table that relates to Budgeted expenses for the Department	the amount shown in the table in the column relating to that financial year opposite the entry relating to Regional Broadband Scheme Special Account Departmental expenses

Division 4 - Chargeable premises associated with a local access line

93 Chargeable premises associated with a local access line

For the purposes of this Part, if:

(a) a person is a carrier; and

(b) particular premises are potentially chargeable premises in relation to the person for a month; and

the premises are chargeable premises associated with a local access line of the person for the month.

94 Potentially chargeable premises

If:

(a) a person is a carrier; and

(b) during a period comprising the whole or a part of a month in an eligible financial year, either:

(i) the person owns a local access line, but no nominated carrier declaration is in force in relation to the line; or

(ii) under a nominated carrier declaration, the person is the nominated carrier in relation to a local access line; and

(d) during the whole or a part of the period, a carriage service provider (who may be the person) supplies a designated broadband service to particular premises in Australia using the line;

the premises are potentially chargeable premises in relation to the person for the month.

95 Exempt premises - small networks

(1) If:

(a) a person is a member of an associated group during the whole or a part of a month; and

(b) the total number of potentially chargeable premises in relation to the members of the group for that month is less than 2,000; and

(c) one or more of those potentially chargeable premises are potentially chargeable premises in relation to the person for that month;

each of the potentially chargeable premises mentioned in paragraph (c) are exempt premises in relation to the person for that month.

(2) If:

(a) a person is not a member of an associated group during the whole or a part of a month; and

(b) the total number of potentially chargeable premises in relation to the person for that month is less than 2,000;

each of those potentially chargeable premises are exempt premises in relation to the person for that month.

Associated group

(3) For the purposes of this section, if:

(a) a person is in a position to exercise control of:

(i) a local access line; or

(ii) a telecommunications network; and

(b) the person has one or more associates;

then:

(d) the associated group consists of the person and those associates.

(4) For the purposes of subsection (3), the question of whether a person is in a position to exercise control of:

(a) a local access line; or

(b) a telecommunications network;

is to be determined in the same manner in which that question is determined for the purposes of Part 8 of the Telecommunications Act 1997.

(5) For the purposes of subsection (3), the question of whether a person has one or more associates is to be determined in the same manner in which that question is determined for the purposes of Part 8 of the Telecommunications Act 1997.

96 Exempt lines - local access lines transitioning to the NBN

Telstra

(1) If:

(a) a person is a carrier; and

(b) during a period comprising the whole or a part of a month in an eligible financial year, either:

(i) the person owns a local access line, but there is no nominated carrier declaration in force in relation to the line; or

(ii) under a nominated carrier declaration, the person is the nominated carrier in relation to a local access line; and

(d) the line is not used by an NBN corporation to supply a declared service at any time during that month; and

(e) during the whole of that month, there was in force a legally enforceable agreement that satisfies the following conditions:

(i) the agreement provides for the transfer of ownership or control of the line to an NBN corporation;

(ii) the agreement is covered by a determination made under subsection 577BA(9) of the Telecommunications Act 1997;

(iii) the agreement is not specified in an instrument under subsection (2);

the line is an exempt line in relation to the person for that month.

(2) The Minister may, by legislative instrument, specify one or more agreements for the purposes of subparagraph (1)(e)(iii).

Optus

(3) If:

(a) a person is a carrier; and

(b) during a period comprising the whole or a part of a month in an eligible financial year, either:

(i) the person owns a local access line, but there is no nominated carrier declaration in force in relation to the line; or

(ii) under a nominated carrier declaration, the person is the nominated carrier in relation to a local access line; and

(d) the line is not used by an NBN corporation to supply a declared service at any time during that month; and

(e) during the whole of that month, there was in force a contract that satisfies the following conditions:

(i) the contract provides for the deactivation or decommissioning of lines that form part of the infrastructure of a hybrid fibre-coaxial network;

(ii) the contract was entered into between NBN Co and the listed Optus companies (see subsection (10));

(iii) the contract applies to the line;

(iv) the agreement is not specified in an instrument under subsection (4);

the line is an exempt line in relation to the person for that month.

(4) The Minister may, by legislative instrument, specify one or more agreements for the purposes of subparagraph (3)(e)(iv).

Other networks

(5) If:

(a) a person is a carrier; and

(b) during a period comprising the whole or a part of a month in an eligible financial year, either:

(i) the person owns a local access line, but there is no nominated carrier declaration in force in relation to the line; or

(ii) under a nominated carrier declaration, the person is the nominated carrier in relation to a local access line; and

(d) the line is not owned by an NBN corporation at any time during that month; and

(e) the line is not used by an NBN corporation to supply a declared service at any time during that month; and

(f) during the whole of that month, there was in force a legally enforceable agreement that satisfies the following conditions:

(i) the agreement provides for the transfer of ownership or control of the line to an NBN corporation;

(ii) the agreement was in force immediately before the commencement of this section;

(iii) the agreement is not covered by subparagraph (1)(e)(ii) or (3)(e)(ii);

(iv) the agreement is not specified in an instrument under subsection (6);

(v) such other conditions (if any) as are determined under subsection (7);

the line is an exempt line in relation to the person for that month.

(6) The Minister may, by legislative instrument, specify one or more agreements for the purposes of subparagraph (5)(f)(iv).

(7) The Minister may, by legislative instrument, determine one or more conditions for the purposes of subparagraph (5)(f)(v).

When agreement comes into force

(8) For the purposes of this section, an agreement is taken to come into force when the agreement is entered into.

No specification by class

(9) Subsection 13(3) of the Legislation Act 2003 does not apply to subsection (2), (4) or (6) of this section.

Listed Optus company

(10) For the purposes of this section, listed Optus company means:

(a) Optus Networks Pty Limited (ACN 008 570 330); or

(b) Optus Internet Pty Limited (ACN 083 164 532); or

(d) Optus Vision Media Pty Limited (ACN 070 870 647); or

(e) Optus Systems Pty Limited (ACN 056 541 167); or

(f) SingTel Optus Pty Limited (ACN 052 833 208).

96A Potentially concessional premises

For the purposes of this Part, if particular premises are potentially chargeable premises in relation to a person for a month because a carriage service provider (who may be the person) supplies a designated broadband service to:

(a) a residential customer who occupies the premises; or

(b) a small business customer who occupies the premises;

the premises are potentially concessional premises in relation to the person for that month.

96B Recently connected greenfield premises

(1) If:

(a) during a period comprising the whole or a part of a month in an eligible financial year, a person is a carrier; and

(b) a declaration made under subsection 63(2) of the Telecommunications Act 1997 was in force on 30 June 2018 in relation to the carrier licence held by the person; and

(c) the declaration provides that the person must (upon request by an end-user at relevant premises) connect, or arrange for another person on the person's behalf to connect, premises located in a development area (however described) specified in the declaration to a telecommunications network owned by the person (as specified in the declaration); and

(d) the person, or another person on the person's behalf:

(i) has connected one or more premises located in the development area to the telecommunications network; and

(ii) has done so before the end of 30 June 2019; and

(e) one or more of the connected premises are potentially chargeable premises in relation to the person for that month;

each of the potentially chargeable premises mentioned in paragraph (e) are recently connected greenfield premises in relation to the person for that month.

(2) If:

(a) a person is a carrier; and

(b) during a period comprising the whole or a part of a month in an eligible financial year, the person supplies an eligible local bitstream access service using a local access line; and

(c) during a whole or a part of that period, a carriage service provider supplies a designated broadband service to one or more premises using the line; and

(d) one or more of those premises are potentially chargeable premises in relation to the person for that month;

each of the potentially chargeable premises mentioned in paragraph (d) are recently connected greenfield premises in relation to the person for that month.

(3) In this section:

eligible local bitstream access service means a local bitstream access service that is first supplied at a time during the period:

(a) beginning at the start of 1 January 2011; and

(b) ending at the end of 30 June 2019.

local bitstream access service has the meaning given by a declaration that:

(a) was made:

(i) under subsection 152AL(3) of the Competition and Consumer Act 2010; and

(ii) in compliance with repealed subsection 152AL(3C) of the Competition and Consumer Act 2010; and

(b) was in force immediately before the commencement of Schedule 1 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020.

Division 5 - Anti-avoidance

97 Anti-avoidance

(1) A carrier must not, either alone or together with one or more other persons, enter into, begin to carry out or carry out a scheme if it would be concluded that the carrier did so for the sole or dominant purpose of avoiding the application of:

(a) section 93 of this Act; or

(b) any provision of the Telecommunications (Regional Broadband Scheme) Charge Act 2020 (other than section 20 of that Act);

in relation to:

(d) any other carrier.

(1A) A carrier must not, either alone or together with one or more other persons, enter into, begin to carry out or carry out a scheme if it would be concluded that the carrier did so for the sole or dominant purpose of obtaining the benefit of section 20 of the Telecommunications (Regional Broadband Scheme) Charge Act 2020 in relation to:

(a) the carrier; or

(b) any other carrier.

Ancillary contraventions

(2) A person must not:

(a) aid, abet, counsel or procure a contravention of subsection (1) or (1A); or

(b) induce, whether by threats or promises or otherwise, a contravention of subsection (1) or (1A); or

(c) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of subsection (1) or (1A); or

(d) conspire with others to effect a contravention of subsection (1) or (1A).

Civil penalty provisions

(3) Subsections (1), (1A) and (2) are civil penalty provisions .

Note: Part 31 of the Telecommunications Act 1997 provides for pecuniary penalties for breaches of civil penalty provisions.

Offences

(4) A carrier commits an offence if:

(a) the carrier, either alone or together with one or more other persons, enters into, begins to carry out or carries out a scheme; and

(b) the carrier did so for the sole or dominant purpose of avoiding the application of:

(i) section 93 of this Act; or

(ii) any provision of the Telecommunications (Regional Broadband Scheme) Charge Act 2020 (other than section 20 of that Act);

in relation to:

(iii) the carrier; or

(iv) any other carrier.

Penalty: 10,000 penalty units.

(4A) A carrier commits an offence if:

(a) the carrier, either alone or together with one or more other persons, enters into, begins to carry out or carries out a scheme; and

(b) the carrier did so for the sole or dominant purpose of obtaining the benefit of section 20 of the Telecommunications (Regional Broadband Scheme) Charge Act 2020 in relation to:

(i) the carrier; or

(ii) any other carrier.

Penalty: 10,000 penalty units.

Validity of transactions

(5) A contravention of subsection (1), (1A), (2), (4) or (4A) does not affect the validity of any transaction.

Scheme

(6) For the purposes of this section, scheme means:

(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied; or

(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.

Division 6 - Charge offset certificate

98 Charge offset certificate

Application

(1) If:

(a) a person is an eligible funding recipient; and

(b) the ACMA has made an assessment under section 102 setting out the charge payable by the person for a financial year (the charge financial year );

the person may, at any time during the period:

(d) ending at the end of the standard due date (within the meaning of section 102D) for the charge financial year;

apply to the Secretary for the issue to the person of a charge offset certificate for the charge financial year.

(2) An application under subsection (1) must:

(a) be in writing; and

(b) be in a form approved, in writing, by the Secretary; and

Issue of certificate

(3) If:

(a) an application under subsection (1) has been made for the issue to a person of a charge offset certificate for the charge financial year; and

(b) the person is the holder of a nominal funding entitlement certificate in relation to the next financial year; and

(d) the conditions set out in those rules are satisfied;

the Secretary must:

(e) issue a certificate stating that the person is entitled to a charge offset for the charge financial year equal to the amount specified in the certificate; and

(f) do so by the end of 31 March next following the charge financial year.

(4) The amount specified in the certificate:

(a) must be the amount ascertained in accordance with rules made under subsection (9); and

(b) must not exceed the nominal funding entitlement of the person for the next financial year; and

(5) A certificate issued under subsection (3) is to be known as a charge offset certificate .

Refusal

(6) If the Secretary decides to refuse to issue a charge offset certificate to a person, the Secretary must give written notice of the decision to the person.

Copy of certificate

(7) If the Secretary issues a charge offset certificate, the Secretary must give a copy of the certificate to the ACMA.

Charge offset certificate cannot be transferred

(8) A charge offset certificate cannot be transferred.

Rules

(9) The Minister may, by legislative instrument, make rules for the purposes of this section.

99 Remission or refund of charge

Remission

(1) If:

(a) a person becomes the holder of a charge offset certificate for a financial year; and

(b) a base instalment of charge is payable by the person in relation to the financial year; and

the Secretary must, on behalf of the Commonwealth, remit so much of the base instalment of charge as equals the amount specified in the certificate.

Note: For base instalment of charge, see section 102D.

(2) The Secretary must inform the ACMA of a remission of charge under subsection (1).

(3) If:

(a) the ACMA has made an assessment under section 102 setting out the charge payable by a person for a financial year; and

(b) the base instalment of charge is remitted, to any extent, under subsection (1) of this section; and

the ACMA must, under subsection 102B(1), vary the assessment to reflect the remission.

Refund

(4) If:

(a) a person becomes the holder of a charge offset certificate for a financial year; and

(b) a base instalment of charge was payable by the person in relation to the financial year; and

the Secretary must, on behalf of the Commonwealth, refund so much of the base instalment of charge as equals the amount specified in the certificate.

Note: For base instalment of charge, see section 102D.

Division 7 - Assessment, collection and recovery of charge

Subdivision A - Reporting obligations

100 Reporting obligations

(1) If there are one or more chargeable premises associated with a local access line of a person for a month in an eligible financial year, the person must:

(a) give the ACMA a written report about:

(i) those chargeable premises; and

(ii) the chargeable premises (if any) associated with a local access line of the person for each of the other months in the financial year; and

(b) do so before the end of 31 October next following the financial year.

(2) The report must be in a form approved, in writing, by the ACMA.

(3) The approved form may require verification, by a statutory declaration, of statements made in the report.

(3A) If, at any time during a month covered by the report, the person had an associate in relation to control of:

(a) a telecommunications network; or

(b) a company; or

the report must:

(d) set out the name of the associate; and

(e) set out the ACN (if any) of the associate; and

(f) identify the network, company or line, as the case requires; and

(g) identify which paragraph or paragraphs of subsection 152(1) of the Telecommunications Act 1997 resulted in the person having the associate.

Transitional

(4) If:

(a) the report relates to:

(i) the first eligible financial year; or

(ii) the second eligible financial year; or

(iii) the third eligible financial year; or

(iv) the fourth eligible financial year; or

(v) the fifth eligible financial year; and

(b) there are one or more potentially concessional premises in relation to the person for a month in the eligible financial year;

the report must set out the total number of potentially concessional premises in relation to the person for that month.

(5) If:

(a) particular premises are reported as potentially concessional premises in relation to the person for a month; and

(b) apart from this subsection, the premises are not potentially concessional premises in relation to the person for the month; and

(i) did not know; and

(ii) could not, with reasonable diligence, have ascertained;

that the premises are not potentially concessional premises in relation to the person for the month;

the premises are taken, for all purposes, to be potentially concessional premises in relation to the person for the month.

(6) If:

(a) the report relates to:

(i) the first eligible financial year; or

(ii) the second eligible financial year; or

(iii) the third eligible financial year; or

(iv) the fourth eligible financial year; or

(v) the fifth eligible financial year; and

(b) during the whole or a part of a month in the eligible financial year, the person was the controller of an associated group;

the report must:

(d) identify each of the members of the associated group; and

(e) set out the circumstances that resulted in the person being the controller of the associated group.

Associated group

(7) For the purposes of subsection (6), if:

(a) a person is in a position to exercise control of:

(i) a local access line; or

(ii) a telecommunications network; and

(b) the person has one or more associates;

then:

(d) the associated group consists of the person and those associates; and

(e) the person is the controller of the associated group.

(8) For the purposes of subsection (7), the question of whether a person is in a position to exercise control of:

(a) a local access line; or

(b) a telecommunications network;

is to be determined in the same manner in which that question is determined for the purposes of Part 8 of the Telecommunications Act 1997.

(9) For the purposes of subsection (7), the question of whether a person has one or more associates is to be determined in the same manner in which that question is determined for the purposes of Part 8 of the Telecommunications Act 1997.

Transitional - recently connected greenfield premises

(10) If:

(a) the report relates to:

(i) the first eligible financial year; or

(ii) the second eligible financial year; or

(iii) the third eligible financial year; or

(iv) the fourth eligible financial year; or

(v) the fifth eligible financial year; and

(b) there are one or more recently connected greenfield premises in relation to the person for a month in the eligible financial year;

the report must set out the total number of recently connected greenfield premises in relation to the person for that month.

(11) If:

(a) particular premises are reported as recently connected greenfield premises in relation to the person for a month; and

(b) apart from this subsection, the premises are not recently connected greenfield premises in relation to the person for the month; and

(i) did not know; and

(ii) could not, with reasonable diligence, have ascertained;

that the premises are not recently connected greenfield premises in relation to the person for the month;

the premises are taken, for all purposes, to be recently connected greenfield premises in relation to the person for the month.

101 Offence of failing to lodge report

(1) A person commits a strict liability offence if:

(a) the person is subject to a requirement under section 100; and

(b) the person omits to do an act; and

Penalty: 50 penalty units.

(2) A person who contravenes subsection (1) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

Subdivision B - Assessments

102 Assessments

(1) If a person has given the ACMA a section 100 report in relation to a financial year before the end of 31 October next following the financial year, the ACMA must:

(a) make a written assessment setting out:

(i) the total number of chargeable premises (if any) associated with a local access line of the person for each of the months in the financial year; and

(ii) the person's annual chargeable premises amount (if any) for the financial year; and

(iii) the person's annual base amount (if any) for the financial year; and

(iv) the person's annual administrative cost amount (if any) for the financial year; and

(v) the charge (if any) payable by the person in relation to the financial year; and

(b) do so by the assessment deadline for the financial year.

Note 1: Section 102D sets out when the charge is payable.

Note 2: If a month is in the first, second, third, fourth of fifth eligible financial year, the total number mentioned in paragraph (a) may be reduced - see subsection (6).

(2) If a person has not given the ACMA a section 100 report in relation to a financial year before the end of 31 October next following the financial year, the ACMA may, before the assessment deadline for the financial year, make a written assessment setting out:

(a) the total number of chargeable premises (if any) associated with a local access line of the person for each of the months in the financial year; and

(b) the person's annual chargeable premises amount (if any) for the financial year; and

(d) the person's annual administrative cost amount (if any) for the financial year; and

(e) the charge (if any) payable by the person in relation to the financial year.

Note 1: Section 102D sets out when the charge is payable.

Note 2: If a month is in the first, second, third, fourth of fifth eligible financial year, the total number mentioned in paragraph (a) may be reduced - see subsection (6).

(3) An assessment under this section is not a legislative instrument.

Assessment deadline

(4) For the purposes of this section, the assessment deadline for a financial year is the end of:

(a) 30 November next following the financial year; or

(b) if:

(i) a later day is ascertained in accordance with a determination made under subsection (5); and

(ii) the day ascertained in accordance with the determination is not later than 2 months before the standard due date (within the meaning of section 102D) for the financial year;

the day ascertained in accordance with the determination.

(5) The ACMA may, by legislative instrument, make a determination for the purposes of subparagraph (4)(b)(i).

Transitional - reduction of total number of chargeable premises

(6) Section 20 of the Telecommunications (Regional Broadband Scheme) Charge Act 2020 applies for the purposes of subparagraph (1)(a)(i) and paragraph (2)(a) in the same way that it applies for the purposes of that Act.

102A Notification of assessment

As soon as practicable after making an assessment under section 102, the ACMA must give a copy of the assessment to:

(a) the person to whom the assessment relates; and

(b) the Secretary.

102B Variation of assessments

(1) The ACMA may vary an assessment made under this Division by making such alterations and additions as it thinks necessary, even if charge has been paid in respect of an assessment.

(2) Unless the contrary intention appears, a varied assessment is taken, for the purposes of this Division, to be an assessment under section 102.

102C ACMA may accept statements

Despite anything in this Division, the ACMA may, for the purposes of making an assessment under this Division, partly or completely accept a statement in a report under section 100.

Subdivision C - Collection and recovery of charge

102D When charge payable

Person other than an eligible funding recipient

(1) Charge payable by a person (other than an eligible funding recipient) in relation to a financial year becomes due and payable on:

(a) the standard due date for the financial year; or

(b) if the ACMA, by written notice given to the person, allows a later day - that later day.

(2) A day allowed under paragraph (1)(b) must not be later than 28 February next following the financial year.

(3) A copy of a notice under paragraph (1)(b) must be published on the ACMA's website.

(4) A notice under paragraph (1)(b) is not a legislative instrument.

Eligible funding recipient

(5) If a person is an eligible funding recipient, charge payable by the person in relation to a financial year is payable in 2 instalments, as follows:

(a) an instalment (the base instalment ) of so much of the amount of the charge as equals the annual base amount of the person for the financial year;

(b) an instalment (the administrative cost instalment ) of so much of the amount of the charge as equals the annual administrative cost amount of the person for the financial year.

(6) If a person is an eligible funding recipient, the base instalment of charge payable by the person in relation to a financial year becomes due and payable on:

(a) if the person has made an application under subsection 98(1) for a charge offset certificate for the financial year - 30 April next following the financial year; or

(b) otherwise:

(i) the standard due date for the financial year; or

(ii) if the ACMA, by written notice given to the person, allows a later day - that later day.

(7) A day allowed under subparagraph (6)(b)(ii) must not be later than 28 February next following the financial year.

(8) A copy of a notice under subparagraph (6)(b)(ii) must be published on the ACMA's website.

(9) A notice under subparagraph (6)(b)(ii) is not a legislative instrument.

(10) If a person is an eligible funding recipient, the administrative cost instalment of charge payable by the person in relation to a financial year becomes due and payable on:

(a) the standard due date for the financial year; or

(b) if the ACMA, by written notice given to the person, allows a later day - that later day.

(11) A day allowed under paragraph (10)(b) must not be later than 28 February next following the financial year.

(12) A copy of a notice under paragraph (10)(b) must be published on the ACMA's website.

(13) A notice under paragraph (10)(b) is not a legislative instrument.

Standard due date

(14) For the purposes of this section, the standard due date for a financial year is:

(a) 31 December next following the financial year; or

(b) if:

(i) a later day is ascertained in accordance with a determination made under subsection (15); and

(ii) the day ascertained in accordance with the determination is not later than 28 February next following the financial year;

the day ascertained in accordance with the determination.

(15) The ACMA may, by legislative instrument, make a determination for the purposes of subparagraph (14)(b)(i).

102E Recovery of charge

Charge, or an instalment of charge:

(a) is a debt due to the ACMA on behalf of the Commonwealth; and

(b) may be recovered by the ACMA, on behalf of the Commonwealth, in:

(i) the Federal Court; or

(ii) the Federal Circuit Court; or

(iii) a court of a State or Territory that has jurisdiction in relation to the matter.

102F Validity of assessment

The validity of an assessment under this Division is not affected by a contravention of this Division.

102G Evidence of assessment

Scope

(1) This section applies if a document that purports to be a copy of an assessment under section 102 is produced in a proceeding.

Evidence

(2) Except so far as the contrary is established, it must be presumed:

(a) that the document is a copy of the assessment; and

(b) that the ACMA has duly made the assessment; and

102H Onus of establishing incorrectness of assessment

In any proceeding, the onus of establishing that an assessment under section 102 is incorrect is on the party making that assertion.

102J Refund of overpayment of charge

If there is an overpayment of:

(a) charge; or

(b) an instalment of charge;

the overpayment is to be refunded by the Secretary on behalf of the Commonwealth.

102K Cancellation of certain exemptions from charge

(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 charge.

(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 charge imposed by the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

102L Commonwealth not liable to charge

(1) The Commonwealth is not liable to pay charge.

(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.

Subdivision D - Other matters

102N Late payment penalty

(1) If an amount of:

(a) charge; or

(b) an instalment of charge;

that is payable by a person remains unpaid after the day on which it becomes due and payable, the person is liable to pay a penalty ( late payment penalty ) on the unpaid amount for each day until all of:

(d) the instalment of charge;

as the case may be, has been paid.

(2) The late payment penalty rate is 20% per year, or such lower rate as the ACMA determines in writing for the purposes of this subsection.

(3) The ACMA may remit the whole or part of a late payment penalty that a person is liable to pay under subsection (1).

(4) The late payment penalty for a day is due and payable at the end of that day.

(5) Late payment penalty:

(a) is a debt due to the ACMA on behalf of the Commonwealth; and

(b) may be recovered by the ACMA, on behalf of the Commonwealth, in:

(i) the Federal Court; or

(ii) the Federal Circuit Court; or

(iii) a court of a State or Territory that has jurisdiction in relation to the matter.

(6) If the amount of the late payment penalty for a day is not an amount of whole dollars, the late payment penalty is rounded to the nearest dollar (rounding 50 cents upwards).

(7) A determination under subsection (2) is a legislative instrument.

Division 8 - Disclosure of information

Subdivision A - Access to information or documents held by a carrier or carriage service provider

102P Access to information or documents held by a carrier or carriage service provider

Scope

(1) This section applies to a carrier or carriage service provider if the ACMA believes on reasonable grounds that the carrier or carriage service provider has information or a document that is relevant to the operation of:

(a) Division 4, 5, 6 or 7 of this Part; or

(b) subsection 102ZFA(4); or

Requirement

(2) The ACMA may, by written notice given to the carrier or carriage service provider, require the carrier or carriage service provider:

(a) to give to the ACMA, within the period and in the manner and form specified in the notice, any such information; or

(b) to produce to the ACMA, within the period and in the manner specified in the notice, any such documents; or

(c) to make copies of any such documents and to produce to the ACMA, within the period and in the manner specified in the notice, those copies.

(3) A period specified under subsection (2) must not be shorter than 14 days after the notice is given.

Compliance

(4) A carrier or carriage service provider must comply with a requirement under subsection (2) to the extent that the carrier or carriage service provider is capable of doing so.

(5) A carrier or carriage service provider commits an offence if:

(a) the ACMA has given a notice to the carrier or carriage service provider under subsection (2); and

(b) the carrier or carriage service provider engages in conduct; and

Penalty for contravention of this subsection: 50 penalty units.

102Q Copying documents - compensation

A carrier or carriage service provider is entitled to be paid by the ACMA reasonable compensation for complying with a requirement covered by paragraph 102P(2)(c).

102R Copies of documents

(1) The ACMA may:

(a) inspect a document or copy produced under subsection 102P(2); and

(b) make and retain copies of, or take and retain extracts from, such a document.

(2) The ACMA may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 102P(2)(c).

102S ACMA may retain documents

(1) The ACMA may take, and retain for as long as is necessary, possession of a document produced under subsection 102P(2).

(2) The carrier or carriage service provider otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the ACMA to be a true copy.

(3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.

(4) Until a certified copy is supplied, the ACMA must, at such times and places as the ACMA thinks appropriate, permit the carrier or carriage service provider otherwise entitled to possession of the document, or a person authorised by that carrier or carriage service provider, to inspect and make copies of, or take extracts from, the document.

102T Law relating to legal professional privilege not affected

This Subdivision does not affect the law relating to legal professional privilege.

Subdivision B - Access to information or documents held by an eligible funding recipient

102U Access to information or documents held by an eligible funding recipient

Scope

(1) This section applies to an eligible funding recipient if the ACCC believes on reasonable grounds that the eligible funding recipient has information or a document that is relevant to the performance of any of the ACCC's functions, or the exercise of any of the ACCC's powers, under the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

Requirement

(2) The ACCC may, by written notice given to the eligible funding recipient, require the eligible funding recipient:

(a) to give to the ACCC, within the period and in the manner and form specified in the notice, any such information; or

(b) to produce to the ACCC, within the period and in the manner specified in the notice, any such documents; or

(c) to make copies of any such documents and to produce to the ACCC, within the period and in the manner specified in the notice, those copies.

(3) A period specified under subsection (2) must not be shorter than 14 days after the notice is given.

Compliance

(4) An eligible funding recipient must comply with a requirement under subsection (2) to the extent that the eligible funding recipient is capable of doing so.

(5) An eligible funding recipient commits an offence if:

(a) the ACCC has given a notice to the eligible funding recipient under subsection (2); and

(b) the eligible funding recipient engages in conduct; and

Penalty for contravention of this subsection: 50 penalty units.

102V Copying documents - compensation

An eligible funding recipient is entitled to be paid by the ACCC reasonable compensation for complying with a requirement covered by paragraph 102U(2)(c).

102W Copies of documents

(1) The ACCC may:

(a) inspect a document or copy produced under subsection 102U(2); and

(b) make and retain copies of, or take and retain extracts from, such a document.

(2) The ACCC may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 102U(2)(c).

102X ACCC may retain documents

(1) The ACCC may take, and retain for as long as is necessary, possession of a document produced under subsection 102U(2).

(2) The eligible funding recipient otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the ACCC to be a true copy.

(3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.

(4) Until a certified copy is supplied, the ACCC must, at such times and places as the ACCC thinks appropriate, permit the eligible funding recipient otherwise entitled to possession of the document, or a person authorised by that eligible funding recipient, to inspect and make copies of, or take extracts from, the document.

102Y Law relating to legal professional privilege not affected

This Subdivision does not affect the law relating to legal professional privilege.

Subdivision C - Disclosure of information to certain bodies

102Z Disclosure of information by the ACMA to certain bodies

(1) The ACMA may disclose information to any of the following bodies:

(a) the Department;

(b) the ACCC;

(d) the Department administered by the Minister administering the Public Governance, Performance and Accountability Act 2013;

(e) the Department administered by the Treasurer;

(f) an authorised government agency (see subsection (2));

if:

(g) the information was:

(i) obtained under, or for the purposes of, this Division; or

(ii) set out in a report under section 100; and

(h) the ACMA is satisfied that the information will enable or assist the body to perform or exercise any of the functions or powers of the body.

(2) The ACMA may, by notifiable instrument, declare that a specified department or authority of the Commonwealth, a State or a Territory is an authorised government agency for the purposes of paragraph (1)(f).

(3) The ACMA may, by writing, impose conditions to be complied with in relation to information disclosed under subsection (1).

(4) An instrument made under subsection (3) that imposes conditions relating to one particular disclosure identified in the instrument is a notifiable instrument.

(5) Otherwise, an instrument made under subsection (3) is a legislative instrument.

102ZA Disclosure of information by the ACCC to certain bodies

(1) The ACCC may disclose information to any of the following bodies:

(a) the Department;

(b) the ACMA;

(d) the Department administered by the Minister administering the Public Governance, Performance and Accountability Act 2013;

(e) the Department administered by the Treasurer;

(f) an authorised government agency (see subsection (2));

if:

(g) the information was obtained under, or for the purposes of, this Division or section 102ZF; and

(h) the ACCC is satisfied that the information will enable or assist the body to perform or exercise any of the functions or powers of the body.

(2) The ACCC may, by notifiable instrument, declare that a specified department or authority of the Commonwealth, a State or a Territory is an authorised government agency for the purposes of paragraph (1)(f).

(3) The ACCC may, by writing, impose conditions to be complied with in relation to information disclosed under subsection (1).

(4) An instrument made under subsection (3) that imposes conditions relating to one particular disclosure identified in the instrument is a notifiable instrument.

(5) Otherwise, an instrument made under subsection (3) is a legislative instrument.

Division 9 - Other matters

102ZB Register of Contracts for the Funding of Fixed Wireless Broadband and Satellite Broadband

(1) The Secretary is to maintain a register, to be known as the Register of Contracts for the Funding of Fixed Wireless Broadband and Satellite Broadband, in which the Secretary includes the following for each section 80 contract that is in force:

(a) the name of the contractor;

(b) the duration of the contract;

(d) if the contract requires services, facilities or customer equipment to be supplied by the contractor - a description of those services, facilities or customer equipment;

(e) if the contract provides for the Commonwealth to reimburse, or partly reimburse, costs or expenses - a description of those costs or expenses;

(f) one of the following:

(i) the total amount paid or to be paid by the Commonwealth under the contract;

(ii) an estimate of the total amount paid or to be paid by the Commonwealth under the contract;

(iii) the method of working out the total amount paid or to be paid by the Commonwealth under the contract.

(2) The Register of Contracts for the Funding of Fixed Wireless Broadband and Satellite Broadband is to be maintained by electronic means.

(3) The Register of Contracts for the Funding of Fixed Wireless Broadband and Satellite Broadband is to be made available for inspection on the Department's website.

(4) The Register of Contracts for the Funding of Fixed Wireless Broadband and Satellite Broadband is not a legislative instrument.

102ZC Register of Grants for the Funding of Fixed Wireless Broadband and Satellite Broadband

(1) The Secretary is to maintain a register, to be known as the Register of Grants for the Funding of Fixed Wireless Broadband and Satellite Broadband, in which the Secretary includes the following for each section 80 grant that has been made:

(a) the name of the grant recipient;

(b) if the terms and conditions of the grant require action to be undertaken by the grant recipient - a summary of those actions;

(c) if services, facilities or customer equipment are to be supplied by the grant recipient in accordance with the terms and conditions of the grant - a description of those services, facilities or customer equipment;

(d) if the grant is by way of the reimbursement, or partial reimbursement, of costs or expenses - a description of those costs or expenses;

(e) either:

(i) the amount of the grant; or

(ii) the method for working out the amount of the grant.

(2) The Register of Grants for the Funding of Fixed Wireless Broadband and Satellite Broadband is to be maintained by electronic means.

(3) The Register of Grants for the Funding of Fixed Wireless Broadband and Satellite Broadband is to be made available for inspection on the Department's website.

(4) The Register of Grants for the Funding of Fixed Wireless Broadband and Satellite Broadband is not a legislative instrument.

102ZD Publication of charge payments and charge offsets

The ACMA must publish on its website a statement, for each eligible financial year, that sets out:

(a) the total amount of charge paid by carriers in relation to the eligible financial year; and

(b) the total of the amounts specified in charge offset certificates issued to carriers in relation to the eligible financial year.

102ZE ACMA may give certain information to the ACCC

The ACMA may give the ACCC information that is relevant to the performance of any of the ACCC's functions, or the exercise of any of the ACCC's powers, under the Telecommunications (Regional Broadband Scheme) Charge Act 2020.

102ZF Report about the number of premises supplied with designated broadband services during the applicable reporting period

Reportable premises

(1) For the purposes of this section, if:

(a) a person is a carrier; and

(b) during a period comprising the whole or a part of the applicable reporting period, either:

(i) the person owns a local access line, but there is no nominated carrier declaration in force in relation to the line; or

(ii) under a nominated carrier declaration, the person is the nominated carrier in relation to a local access line; and

(c) during the whole or a part of the period, a carriage service provider (who may be the person) supplies a designated broadband service to particular premises in Australia using the line;

the premises are reportable premises in relation to the person for the applicable reporting period.

Report

(2) If:

(a) a person is a carrier; and

(b) there are one or more reportable premises in relation to the person for the applicable reporting period;

the person must:

(i) the number of those premises; and

(ii) the number of potentially chargeable premises (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and

(iii) the number of chargeable premises (if any) associated with a local access line of the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and

(iv) the number of exempt premises (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and

(v) the number of exempt lines (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and

(vi) the number of potentially concessional premises (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and

(vii) the number of recently connected greenfield premises (if any) in relation to the person for the applicable reporting period (assuming paragraph 79(a) referred to 1 July 2019 instead of the designated start date); and

(d) do so within 60 days after the commencement of this section.

(3) The report must be in a form approved, in writing, by the ACCC.

(4) The approved form may require verification, by a statutory declaration, of statements made in the report.

(4A) If, at any time during the applicable reporting period, the person had an associate in relation to control of:

(a) a telecommunications network; or

(b) a company; or

the report must:

(d) set out the name of the associate; and

(e) set out the ACN (if any) of the associate; and

(f) identify the network, company or line, as the case requires; and

(g) identify which paragraph or paragraphs of subsection 152(1) of the Telecommunications Act 1997 resulted in the person having the associate.

Offence of failing to lodge report

(5) A person commits a strict liability offence if:

(a) the person is subject to a requirement under subsection (2) or (4A); and

(b) the person omits to do an act; and

Penalty: 50 penalty units.

(6) A person who contravenes subsection (5) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

Applicable reporting period

(7) For the purposes of this section, applicable reporting period means the month immediately preceding the month in which this section commenced.

102ZFA Review of this Part etc.

(1) The Minister must cause to be conducted a review of the following matters:

(a) the operation of this Part;

(b) the operation of the remaining provisions of this Act to the extent to which they relate to this Part;

(d) the operation of the Telecommunications (Regional Broadband Scheme) Charge Act 2020;

(e) whether this Part should be amended;

(f) whether the remaining provisions of this Act, to the extent to which they relate to this Part, should be amended;

(g) whether the Telecommunications Act 1997, to the extent to which that Act relates to this Part, should be amended;

(h) whether the Telecommunications (Regional Broadband Scheme) Charge Act 2020 should be amended.

(2) A review under subsection (1) must make provision for public consultation.

(3) A review under subsection (1) must be conducted:

(a) before the end of the period of 4 years after the commencement of this section; or

(b) as soon as practicable after the end of that 4-year period.

Direction to the ACMA

(4) The Minister may give the ACMA a written direction requiring the ACMA to make available specified information for the purposes of facilitating the conduct of a review under subsection (1).

(5) The ACMA must comply with a direction under subsection (4).

Direction to the ACCC

(6) The Minister may give the ACCC a written direction requiring the ACCC to make available specified information for the purposes of facilitating the conduct of a review under subsection (1).

(7) The ACCC must comply with a direction under subsection (6).

Report

(8) The Minister must cause to be prepared a report of a review under subsection (1).

(9) The Minister must cause copies of the report to be tabled in each House of the Parliament within 25 sittings days of that House after the completion of the preparation of the report.

102ZFB Disallowance of determinations

Scope

(1) This section applies to a determination made under subsection 76AA(2), 79A(1) or (2).

Disallowance

(2) Either House of the Parliament may, following a motion upon notice, pass a resolution disallowing the determination. For the resolution to be effective:

(a) the notice must be given in that House within 15 sitting days of that House after the copy of the determination was tabled in the House under section 38 of the Legislation Act 2003; and

(b) the resolution must be passed, in pursuance of the motion, within 15 sitting days of that House after the giving of that notice.

(3) If neither House passes such a resolution, the determination takes effect on the day immediately after the last day upon which such a resolution could have been passed if it were assumed that notice of a motion to disallow the determination was given in each House on the last day of the 15 sitting day period of that House mentioned in paragraph (2)(a).

(3A) If:

(a) notice of a motion to disallow the determination is given in a House of the Parliament within 15 sitting days of that House after the copy of the determination was tabled in that House under section 38 of the Legislation Act 2003; and

(b) at the end of 15 sitting days of that House after the giving of that notice of motion:

(i) the notice has not been withdrawn and the motion has not been called on; or

(ii) the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of;

the determination is then taken to have been disallowed, and subsection (3) does not apply to the determination.

(4) Section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.

Note 1: The 15 sitting day notice period mentioned in paragraph (2)(a) of this section is the same as the 15 sitting day notice period mentioned in paragraph 42(1)(a) of the Legislation Act 2003.

Note 2: The 15 sitting day disallowance period mentioned in paragraph (2)(b) of this section is the same as the 15 sitting day disallowance period mentioned in paragraph 42(1)(b) of the Legislation Act 2003.

102ZG Delegation by the Secretary

(1) The Secretary may, by writing, delegate any or all of the Secretary's functions or powers under this Part to an SES employee, or acting SES employee, in the Department.

Note: The expressions SES employee and acting SES employee are defined in the Acts Interpretation Act 1901.

(2) A delegate must comply with any written directions of the Secretary.

102ZH Meaning of capable

In determining the meaning of the expression capable when used in:

(a) a provision of this Act (other than this Part); or

(b) the Telecommunications Act 1997;

disregard the expression technically capable when used in section 76AA.

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