Telstra Corporation and Other Legislation Amendment Act 2021 (140 of 2021)
Schedule 1 Amendments commencing on the day after Royal Assent
Part 1 Amendments
Telecommunications Act 1997
3 After Part 34
Insert:
Part 34A - Telstra successor companies and designated Telstra successor companies
Division 1 - Introduction
581A Simplified outline of this Part
• This Part sets out a mechanism for identifying Telstra successor companies and designated Telstra successor companies.
• If a Telstra successor company or a designated Telstra successor company transfers the whole or part of a telecommunications business, the company must notify the ACMA of the transfer.
• If a Telstra successor company or a designated Telstra successor company proposes to transfer the whole or part of a prescribed business and the transferee is not a constitutional corporation, the company must notify the ACMA of the proposed transfer.
• If a Telstra successor company or a designated Telstra successor company transfers a telecommunications asset, the company must notify the ACMA of the transfer.
• If a Telstra successor company or a designated Telstra successor company proposes to transfer a prescribed asset and the transferee is not a constitutional corporation, the company must notify the ACMA of the proposed transfer.
Note: Certain telecommunications laws impose obligations on, or in relation to, Telstra successor companies or designated Telstra successor companies.
581B Object of this Part
The object of this Part, when read together with various other provisions of telecommunications laws that refer to a Telstra successor company or a designated Telstra successor company, is to achieve regulatory equivalence between:
(a) Telstra as it stood at the end of July 2021; and
(b) companies that are the successors (whether immediate or otherwise) of Telstra.
581C Company
For the purposes of this Part, company means a body corporate.
581D Telecommunications law
For the purposes of this Part, telecommunications law means:
(a) this Act; or
(b) the Telecommunications (Consumer Protection and Service Standards) Act 1999; or
(c) Part XIB of the Competition and Consumer Act 2010; or
(d) Part XIC of the Competition and Consumer Act 2010; or
(e) the Telstra Corporation Act 1991; or
(f) an instrument made under or for the purposes of:
(i) this Act; or
(ii) the Telecommunications (Consumer Protection and Service Standards) Act 1999; or
(iii) Part XIB of the Competition and Consumer Act 2010; or
(iv) Part XIC of the Competition and Consumer Act 2010; or
(v) the Telstra Corporation Act 1991.
581E Prescribed telecommunications law
For the purposes of this Part, prescribed telecommunications law means:
(a) the Telstra Corporation Act 1991; or
(b) this Part; or
(c) an instrument made under or for the purposes of:
(i) the Telstra Corporation Act 1991; or
(ii) this Part.
Division 2 - Telstra successor company and designated Telstra successor company
581F Telstra successor company
(1) For the purposes of each prescribed telecommunications law, Telstra successor company means a demerged Telstra company.
Note: For demerged Telstra company , see section 581J.
(2) Subsection (1) has effect subject to subsections (6), (7) and (8).
Declarations - extended meaning of Telstra successor company
(3) The Minister may, by legislative instrument, declare that a specified company (other than a demerged Telstra company) is a Telstra successor company for the purposes of each prescribed telecommunications law.
Note 1: For criteria, see section 581H.
Note 2: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(4) The Minister may, by legislative instrument, declare that a specified company (other than a demerged Telstra company) is a Telstra successor company for the purposes of one or more specified prescribed telecommunications laws.
Note 1: For criteria, see section 581H.
Note 2: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(5) The Minister may, by legislative instrument, declare that a specified company (other than a demerged Telstra company) is a Telstra successor company for the purposes of one or more specified provisions of one or more prescribed telecommunications laws.
Note 1: For criteria, see section 581H.
Note 2: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Declarations - excluded company
(6) The Minister may, by legislative instrument, declare that a specified company is not a Telstra successor company for the purposes of each prescribed telecommunications law.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(7) The Minister may, by legislative instrument, declare that a specified company is a not a Telstra successor company for the purposes of one or more specified prescribed telecommunications laws.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(8) The Minister may, by legislative instrument, declare that a specified company is a not a Telstra successor company for the purposes of one or more specified provisions of one or more prescribed telecommunications laws.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Declaration is irrevocable
(9) A declaration under subsection (6), (7) or (8) is irrevocable.
(10) Subsection (9) does not prevent a declaration from being disallowed under the Legislation Act 2003.
Declarations may be unconditional or conditional
(11) A declaration under this section may be unconditional or subject to such conditions (if any) as are specified in the declaration.
581G Designated Telstra successor company
(1) For the purposes of each telecommunications law, designated Telstra successor company means a demerged Telstra company.
Note: For demerged Telstra company , see section 581J.
(2) Subsection (1) has effect subject to subsections (6), (7) and (8).
Declarations - extended meaning of designatedTelstra successor company
(3) The Minister may, by legislative instrument, declare that a specified company (other than a demerged Telstra company) is a designatedTelstra successor company for the purposes of each telecommunications law.
Note 1: For criteria, see section 581H.
Note 2: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(4) The Minister may, by legislative instrument, declare that a specified company (other than a demerged Telstra company) is a designatedTelstra successor company for the purposes of one or more specified telecommunications laws.
Note 1: For criteria, see section 581H.
Note 2: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(5) The Minister may, by legislative instrument, declare that a specified company (other than a demerged Telstra company) is a designatedTelstra successor company for the purposes of one or more specified provisions of one or more telecommunications laws.
Note 1: For criteria, see section 581H.
Note 2: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Declarations - excluded company
(6) The Minister may, by legislative instrument, declare that a specified company is not a designatedTelstra successor company for the purposes of each telecommunications law.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(7) The Minister may, by legislative instrument, declare that a specified company is a not a designatedTelstra successor company for the purposes of one or more specified telecommunications laws.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(8) The Minister may, by legislative instrument, declare that a specified company is a not designatedTelstra successor company for the purposes of one or more specified provisions of one or more telecommunications laws.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
Declaration is irrevocable
(9) A declaration under subsection (6), (7) or (8) is irrevocable.
(10) Subsection (9) does not prevent a declaration from being disallowed under the Legislation Act 2003.
Declarations may be unconditional or conditional
(11) A declaration under this section may be unconditional or subject to such conditions (if any) as are specified in the declaration.
581H Declarations - criteria
(1) In deciding whether to specify a company (the relevant company ) in a declaration under subsection 581F(3), (4) or (5) or 581G(3), (4) or (5), the Minister must have regard to the following matters:
(a) the object set out in section 581B;
(b) the compliance burden (if any) that would result for the relevant company if the declaration were made;
(c) whether a Telstra successor company or a designated Telstra successor company has transferred the whole or a part of a telecommunications business to the relevant company;
(d) whether a Telstra successor company or a designated Telstra successor company has transferred a telecommunications asset to the relevant company;
(e) such other matters (if any) as the Minister considers relevant.
(2) The Minister must not specify a company in a declaration under subsection 581F(3), (4) or (5) or 581G(3), (4) or (5) unless the company:
(a) is a constitutional corporation; or
(b) carries on a telecommunications business covered by paragraph 581L(1)(a), (b) or (c).
581J Demerged Telstra company
For the purposes of this Act, each of the following companies is a demerged Telstra company :
(a) Telstra Group Limited (ACN 650 620 303), as the company exists from time to time (even if its name is later changed);
(b) Telstra Infraco Limited (ACN 051 775 556), as the company exists from time to time (even if its name is later changed);
(c) Amplitel Pty Ltd (ACN 648 133 073), as the company exists from time to time (even if its name is later changed);
(d) Telstra Limited (ACN 086 174 781), as the company exists from time to time (even if its name is later changed).
Note: See also section 581U (transitional - references in legislation to Telstra Infraco Limited).
581K ACMA to maintain register of Telstra successor companies and designated Telstra successor companies etc.
(1) The ACMA is to maintain a Register in which the ACMA includes:
(a) for each company that is a Telstra successor company for the purposes of each prescribed telecommunications law because of subsection 581F(1) - the name and ACN of that company; and
(b) for each company that is a Telstra successor company for the purposes of each prescribed telecommunications law because of a declaration under subsection 581F(3):
(i) the name and ACN of that company; and
(ii) the details of the declaration; and
(c) for each company that is a Telstra successor company for the purposes of one or more prescribed telecommunications laws because of a declaration under subsection 581F(4):
(i) the name and ACN of that company; and
(ii) the details of the declaration; and
(d) for each company that is a Telstra successor company for the purposes of one or more provisions of one or more prescribed telecommunications laws because of a declaration under subsection 581F(5):
(i) the name and ACN of that company; and
(ii) the details of the declaration; and
(e) for each company that is covered by a declaration under subsection 581F(6), (7) or (8):
(i) the name and ACN of that company; and
(ii) the details of the declaration; and
(f) for each company that is a designatedTelstra successor company for the purposes of each telecommunications law because of subsection 581G(1) - the name and ACN of that company; and
(g) for each company that is a designatedTelstra successor company for the purposes of each telecommunications law because of a declaration under subsection 581G(3):
(i) the name and ACN of that company; and
(ii) the details of the declaration; and
(h) for each company that is a designatedTelstra successor company for the purposes of one or more telecommunications laws because of a declaration under subsection 581G(4):
(i) the name and ACN of that company; and
(ii) the details of the declaration; and
(i) for each company that is a designatedTelstra successor company for the purposes of one or more provisions of one or more telecommunications laws because of a declaration under subsection 581G(5):
(i) the name and ACN of that company; and
(ii) the details of the declaration; and
(j) for each company that is covered by a declaration under subsection 581G(6), (7) or (8):
(i) the name and ACN of that company; and
(ii) the details of the declaration.
(2) The Register is to be maintained by electronic means.
(3) The Register is to be made available for inspection on the ACMA's website.
(4) The Register is not a legislative instrument.
Division 3 - Transfer of business
581L Telecommunications business
(1) For the purposes of this Part, telecommunications business means:
(a) a business that consists of or includes the supply of a listed carriage service; or
(b) a business that consists of or includes the supply of a service that facilitates the supply of a listed carriage service; or
(c) a business that consists of or includes installing, maintaining, operating or providing access to:
(i) a telecommunications network; or
(ii) a facility;
used to supply a listed carriage service; or
(d) a business that is covered by a declaration under subsection (2);
but does not include a business that is covered by a declaration under subsection (3).
(2) The Minister may, by legislative instrument, declare that a specified business is a telecommunications business for the purposes of this Part.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(3) The Minister may, by legislative instrument, declare that a specified business is not a telecommunications business for the purposes of this Part.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
581M Notification of transfer of telecommunications business
(1) If:
(a) after the commencement of Schedule 2 to the Telstra Corporation and Other Legislation Amendment Act 2021, a Telstra successor company or a designatedTelstra successor company transfers the whole or a part of a telecommunications business; and
(b) the transfer is not covered by a declaration under subsection (2); and
(c) the telecommunications business is not covered by a declaration under subsection (3); and
(d) the conditions (if any) declared under subsection (4) have been satisfied; and
(e) a declaration is in force under subsection (5);
the company must:
(f) notify the ACMA in writing of the transfer; and
(g) do so within 5 business days after the transfer.
(2) The Minister may, by legislative instrument, declare that a specified transfer is exempt from subsection (1).
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(3) The Minister may, by legislative instrument, declare that a specified telecommunications business is exempt from subsection (1).
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(4) The Minister may, by legislative instrument, declare one or more conditions for the purposes of paragraph (1)(d).
(5) The Minister may, by legislative instrument, declare that subsection (1) is active.
(6) Subsection (1) is a civil penalty provision.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
(7) If the ACMA receives a notification under subsection (1), the ACMA must give a copy of the notification to the Minister.
581MA Notification of proposed transfer of prescribed business
(1) If:
(a) a company is:
(i) a Telstra successor company or a designated Telstra successor company; and
(ii) a constitutional corporation; and
(b) the company proposes to transfer the whole or a part of a prescribed business after the commencement of Schedule 2 to the Telstra Corporation and Other Legislation Amendment Act 2021; and
(c) the proposed transferee is a not a constitutional corporation;
the company must:
(d) notify the ACMA in writing of the proposed transfer; and
(e) do so at least 30 days before the proposed transfer date.
(2) Subsection (1) is a civil penalty provision.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
(3) If the ACMA receives a notification under subsection (1), the ACMA must give a copy of the notification to the Minister.
(4) For the purposes of this section, prescribed business means a business in a prescribed class of businesses.
(5) The Minister may, by legislative instrument, declare that one or more specified classes of businesses are prescribed classes of businesses for the purpose of subsection (4).
Division 4 - Transfer of assets
581N Telecommunications asset
(1) For the purposes of this Part, telecommunications asset means:
(a) a telecommunications network used, or to be used, to supply a listed carriage service; or
(b) a facility used, or to be used, to supply a listed carriage service; or
(c) an asset covered by a declaration under subsection (2);
but does not include an asset that is covered by a declaration under subsection (3).
(2) The Minister may, by legislative instrument, declare that a specified asset is a telecommunications asset for the purposes of this Part.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(3) The Minister may, by legislative instrument, declare that a specified asset is not a telecommunications asset for the purposes of this Part.
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
581P Notification of transfer of telecommunications asset
(1) If:
(a) after the commencement of Schedule 2 to the Telstra Corporation and Other Legislation Amendment Act 2021, a Telstra successor company or a designatedTelstra successor company transfers a telecommunications asset; and
(b) the transfer is not covered by a declaration under subsection (2); and
(c) the telecommunications asset is not covered by a declaration under subsection (3); and
(d) the conditions (if any) declared under subsection (4) have been satisfied; and
(e) a declaration is in force under subsection (5);
the company must:
(f) notify the ACMA in writing of the transfer; and
(g) do so within 5 business days after the transfer.
(2) The Minister may, by legislative instrument, declare that a specified transfer is exempt from subsection (1).
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(3) The Minister may, by legislative instrument, declare that a specified telecommunications asset is exempt from subsection (1).
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(4) The Minister may, by legislative instrument, declare one or more conditions for the purposes of paragraph (1)(d).
(5) The Minister may, by legislative instrument, declare that subsection (1) is active.
(6) Subsection (1) is a civil penalty provision.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
(7) If the ACMA receives a notification under subsection (1), the ACMA must give a copy of the notification to the Minister.
581PA Notification of proposed transfer of prescribed asset
(1) If:
(a) a company is:
(i) a Telstra successor company or a designated Telstra successor company; and
(ii) a constitutional corporation; and
(b) the company proposes to transfer a prescribed asset after the commencement of Schedule 2 to the Telstra Corporation and Other Legislation Amendment Act 2021; and
(c) the proposed transferee is a not a constitutional corporation;
the company must:
(d) notify the ACMA in writing of the proposed transfer; and
(e) do so at least 30 days before the proposed transfer date.
(2) Subsection (1) is a civil penalty provision.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
(3) If the ACMA receives a notification under subsection (1), the ACMA must give a copy of the notification to the Minister.
(4) For the purposes of this section, prescribed asset means an asset in a prescribed class of assets.
(5) The Minister may, by legislative instrument, declare that one or more specified classes of assets are prescribed classes of assets for the purpose of subsection (4).
(6) The Minister must not specify a class of assets under subsection (5) unless each asset in the class is, or was, used by a Telstra successor company or a designated Telstra successor company:
(a) in connection with the fulfillment of any of the obligations imposed on the company by or under a telecommunications law; or
(b) in order to maintain the company's capability (including the technical, operational or organisational capability) to comply with obligations imposed on the company by or under a telecommunications law.
581Q Transfer of an asset
For the purposes of this Part, a transfer of an asset occurs if:
(a) the legal ownership of the asset is transferred in whole or in part; or
(b) the beneficial ownership of the asset is transferred in whole or in part (whether by way of a declaration of trust or in any other way); or
(c) if the asset is the subject of a lease - the lease is transferred.
Division 5 - Consultation relating to declarations
581R Consultation relating to declarations
(1) Before making or varying a declaration under this Part (other than Division 2), the Minister must:
(a) make a copy of the draft declaration or variation available on the Department's website; and
(b) publish a notice on the Department's website:
(i) stating that the Minister has prepared the draft; and
(ii) inviting interested persons to give written comments about the draft to the Minister within the period specified in the notice.
(2) The period specified in the notice must run for at least 30 days after the publication of the notice.
(3) If interested persons have given comments in accordance with a notice under subsection (1), the Minister must have due regard to those comments in making or varying the declaration.
Division 6 - Directions
581TA Facilitation of compliance with a direction given by the ACMA
(1) If:
(a) a designated Telstra successor company (the first designated Telstra successor company ) is subject to a direction (the first direction ) given by the ACMA under this Act or the Telecommunications (Consumer Protection and Service Standards) Act 1999; and
(b) the ACMA is satisfied that the first designated Telstra successor company has failed, is failing, or is likely to fail, to comply with the first direction;
the ACMA may give:
(c) another designated Telstra successor company; or
(d) a body corporate that is a related body corporate (within the meaning of the Corporations Act 2001) of the first designated Telstra successor company;
a written direction to take specified action.
(2) The ACMA must not give a direction to a body corporate under subsection (1) unless:
(a) the ACMA is satisfied that the action specified in the direction will facilitate the first designated Telstra successor company complying with the first direction; and
(b) the ACMA is satisfied that the body corporate:
(i) has the capability (including the technical, operational and organisational capability) to comply with the direction; or
(ii) could reasonably acquire the capability (including the technical, operational and organisational capability) to comply with the direction; and
(c) the body corporate:
(i) is a constitutional corporation; or
(ii) carries on a telecommunications business covered by paragraph 581L(1)(a), (b) or (c).
Compliance with requirement
(3) A body corporate must comply with a direction under subsection (1).
Civil penalty
(4) Subsection (3) is a civil penalty provision.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
Consultation
(5) Before the ACMA gives or varies a direction under subsection (1), the ACMA must consult the ACCC.
(6) Before giving or varying a direction under subsection (1), the ACMA must:
(a) make a copy of the draft direction or variation available on the ACMA's website; and
(b) publish a notice on the ACMA's website:
(i) stating that the ACMA has prepared the draft; and
(ii) inviting interested persons to give written comments about the draft to the ACMA within the period specified in the notice.
(7) The period specified in the notice must run for at least 30 days after the publication of the notice.
(8) If interested persons have given comments in accordance with a notice under subsection (6), the ACMA must have due regard to those comments in giving or varying the direction.
581TB Facilitation of obligations imposed on a named designated Telstra successor company
(1) If:
(a) an obligation (the relevant obligation ) is imposed on a named designated Telstra successor company (the first designated Telstra successor company ) by or under a telecommunication law; and
(b) the Minister is satisfied that the first designated Telstra successor company has failed, is failing, or is likely to fail, to fulfil the relevant obligation;
the Minister may give:
(c) another designated Telstra successor company; or
(d) a body corporate that is a related body corporate (within the meaning of the Corporations Act 2001) of the first designated Telstra successor company;
a written direction to take specified action.
(2) The Minister must not give a direction to a body corporate under subsection (1) unless:
(a) the Minister is satisfied that the action specified in the direction will assist the first designated Telstra successor company to fulfil the relevant obligation; and
(b) the Minister is satisfied that the body corporate:
(i) has the capability (including the technical, operational and organisational capability) to comply with the direction; or
(ii) could reasonably acquire the capability (including the technical, operational and organisational capability) to comply with the direction; and
(c) the body corporate:
(i) is a constitutional corporation; or
(ii) carries on a telecommunications business covered by paragraph 581L(1)(a), (b) or (c).
Compliance with requirement
(3) A body corporate must comply with a direction under subsection (1).
Civil penalty
(4) Subsection (3) is a civil penalty provision.
Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.
Consultation
(5) Before giving or varying a direction under subsection (1), the Minister must:
(a) make a copy of the draft direction or variation available on the Minister's website; and
(b) publish a notice on the Minister's website:
(i) stating that the Minister has prepared the draft; and
(ii) inviting interested persons to give written comments about the draft to the Minister within the period specified in the notice.
(6) Subject to subsection (7), the period specified in the notice must run for at least 30 days after the publication of the notice.
(7) The period specified in the notice may be shorter than 30 days if the Minister is satisfied that the shorter period is necessary due to urgent circumstances.
(8) If interested persons have given comments in accordance with a notice under subsection (5), the Minister must have due regard to those comments in giving or varying the direction.
Division 7 - Transitional
581U Transitional - references in legislation to Telstra Infraco Limited
Scope
(1) This section applies if, as at the commencement of this section, the name of Telstra Corporation Limited (ACN 051 775 556) had not been changed to Telstra Infraco Limited.
Transitional
(2) Until the name of Telstra Corporation Limited (ACN 051 775 556) is changed to Telstra Infraco Limited, a reference to Telstra Infraco Limited in a telecommunications law is to be read as a reference to Telstra Corporation Limited.