Telstra Corporation and Other Legislation Amendment Act 2021 (140 of 2021)

Schedule 2   Amendments contingent on the implementation of an approved scheme of arrangement

Part 1   Main amendments

Division 1   Amendments

Telecommunications Act 1997

41   After section 577AC

Insert:

577ACA Repointing of undertaking about structural undertaking to certain designated Telstra successor companies

(1) If an undertaking is in force under section 577A, the undertaking has effect as if:

(a) each obligation imposed on Telstra by the undertaking were imposed instead on each of the following designated Telstra successor companies:

(i) Telstra Infraco Limited;

(ii) Telstra Limited;

(iii) a designated Telstra successor company specified in an instrument under subsection (2); and

(b) each prohibition applicable to Telstra under the undertaking were applicable instead to each of the following designated Telstra successor companies:

(i) Telstra Infraco Limited;

(ii) Telstra Limited;

(iii) a designated Telstra successor company specified in an instrument under subsection (2).

Note: See also section 581U (transitional - references in legislation to Telstra Infraco Limited).

(2) The Minister may, by legislative instrument, specify one or more designated Telstra successor companies for the purposes of subparagraphs (1)(a)(iii) and (b)(iii).

(3) Subsection (1) has effect subject to subsection (4).

(4) The Minister may, by legislative instrument, determine either or both of the following:

(a) that paragraph (1)(a) does not result in the imposition of one or more specified obligations on one or more specified designated Telstra successor companies;

(b) that paragraph (1)(b) does not result in one or more specified prohibitions being applicable to one or more specified designated Telstra successor companies.

577ACB Directions - facilitation of undertaking about structural separation

(1) If:

(a) an undertaking is in force under section 577A; and

(b) the Minister is satisfied that a designated Telstra successor company (the first designated Telstra successor company ) has failed, is failing, or is likely to fail, to fulfil an obligation imposed on it by the undertaking;

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 its obligations under the undertaking; 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.