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

Schedule 4   Amendments relating to access to supplementary facilities and telecommunications transmission towers

Telecommunications Act 1997

1   Before Part 35

Insert:

Part 34B - Access to supplementary facilities and telecommunications transmission towers

Division 1 - Introduction

581V Simplified outline of this Part

• If a group of companies includes a carrier, a company (other than a carrier) that is in the group must:

(a) provide carriers with access to facilities; and

(b) provide carriers with access to telecommunications transmission towers.

581W Carrier company group

(1) For the purposes of this Part, carrier company group means a group of 2 or more bodies corporate, where:

(a) at least one of those bodies corporate is a carrier; and

(b) each of those bodies corporate are related to each other.

(2) For the purposes of this section, the question of whether bodies corporate are related to each other is to be determined in accordance with section 50 of the Corporations Act 2001.

(3) The Minister may, by legislative instrument, determine that, for the purposes of this section, each reference in section 46 of the Corporations Act 2001 to one-half is taken to be a reference to the percentage specified in the determination.

(4) If no determination is in force under subsection (3), then, for the purposes of this section, assume that each reference in section 46 of the Corporations Act 2001 to one-half were a reference to 15%.

Consultation

(5) Before making or varying a determination under subsection (3), the Minister must:

(a) make a copy of the draft determination 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.

(6) The period specified in the notice must run for at least 30 days after the publication of the notice.

(7) If interested persons have given comments in accordance with a notice under subsection (5), the Minister must have due regard to those comments in making or varying the determination.

581X Eligible company

For the purposes of this Part, eligible company means a body corporate that:

(a) is in a carrier company group; and

(b) is not a carrier.

581XA Deemed bodies corporate

(1) The Minister may, by legislative instrument, determine that, if:

(a) a specified person is an individual or a partnership; and

(b) the person owns or operates:

(i) a facility; or

(ii) a telecommunications transmission tower (within the meaning of Division 3);

this Part has effect as if the person were a body corporate that is related to one or more specified bodies corporate.

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

(a) a person is the trustee of a specified trust; and

(b) the person (in the capacity of trustee of the trust) owns or operates:

(i) a facility; or

(ii) a telecommunications transmission tower (within the meaning of Division 3);

this Part has effect as if the person (in the capacity of trustee of the trust) were a body corporate that is related to one or more specified bodies corporate.

(3) The Minister may, by legislative instrument, determine that, if:

(a) 2 or more persons are the trustees of a specified trust; and

(b) the persons (in their capacity of trustees of the trust) own or operate:

(i) a facility; or

(ii) a telecommunications transmission tower (within the meaning of Division 3);

this Part has effect as if the persons (in their capacity of trustees of the trust) were a body corporate that is related to one or more specified bodies corporate.

Division 2 - Access to supplementary facilities

581Y Access to supplementary facilities

(1) An eligible company must, if requested to do so by a carrier, give the carrier access to facilities owned or operated by the eligible company.

Note 1: See also subsection (10) (when carrier is entitled to make a request).

Note 2: See also clause 17 of Schedule 1.

(2) Subsection (1) is a civil penalty provision.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

(3) The eligible company is not required to comply with subsection (1) unless:

(a) the access is provided for the sole purpose of enabling the carrier:

(i) to provide facilities and carriage services; or

(ii) to establish its own facilities; and

(b) the carrier's request is reasonable; and

(c) the carrier gives the eligible company reasonable notice that the carrier requires the access; and

(d) in a case where the facilities do not consist of customer cabling or customer equipment - the facilities:

(i) were in place on 30 June 1991; or

(ii) were not in place on 30 June 1991, and were not obtained after that date by the eligible company solely by means of commercial negotiation.

(4) Subsection (1) does not impose an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects:

(a) depriving any person of a right under a contract that was in force at the time the request was made;

(b) preventing a designated Telstra successor company from complying with an undertaking in force under section 577A;

(c) preventing Telstra from complying with an undertaking in force under section 577C or 577E;

(d) if a final migration plan is in force - requiring a designated Telstra successor company to engage in conduct in connection with matters covered by the final migration plan.

(5) If, at the time the request was made:

(a) one or more provisions (the contingent provisions ) of a contract have not come into force because:

(i) the contingent provisions are subject to a condition precedent; and

(ii) the condition precedent has not been satisfied; and

(b) there is a possibility that the condition precedent could become satisfied; and

(c) assuming that the condition precedent had been satisfied:

(i) the contingent provisions would come into force; and

(ii) the person would have a right under the contingent provisions;

paragraph (4)(a) has effect, in relation to the contract, as if, at the time the request was made:

(d) the contract was in force; and

(e) the person had the right under the contract.

(6) For the purposes of this section, in determining whether the carrier's request is reasonable, regard must be had to the question whether compliance with the request will promote the long-term interests of end-users of carriage services or of services supplied by means of carriage services. That question is to be determined in the same manner as it is determined for the purposes of Part XIC of the Competition and Consumer Act 2010.

(7) Subsection (6) is intended to limit the matters to which regard may be had.

(8) For the purposes of subsection (1), if:

(a) there is an agreement in force between Telstra or a designated Telstra successor company and an NBN corporation; and

(b) the agreement relates to the NBN corporation's access to facilities owned or operated by Telstra or the designated Telstra successor company; and

(c) apart from this section, the agreement would result in the NBN corporation being the operator of the facilities;

the NBN corporation is taken not to be the operator of the facilities.

(9) A reference in this section to a facility is a reference to:

(a) a facility as defined by section 7; or

(b) land on which a facility mentioned in paragraph (a) is located; or

(c) a building or structure on land referred to in paragraph (b); or

(d) customer equipment, or customer cabling, connected to a telecommunications network owned or operated by a carrier.

(10) A carrier is not entitled to make a request under subsection (1) of this section before the end of the 60-day period beginning on the day after the day specified in the instrument made under subsection 581ZH(3).

(11) In this section:

NBN corporation has the same meaning as in section 577BA.

581Z Terms and conditions of access

(1) An eligible company must comply with subsection 581Y(1) on such terms and conditions as are:

(a) agreed between the following parties:

(i) the eligible company;

(ii) the carrier concerned; or

(b) failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

(2) The regulations may make provision for and in relation to the conduct of an arbitration under this section.

(3) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.

(4) Subsection (3) does not, by implication, limit subsection (2).

(5) A determination made in an arbitration under this section must not be inconsistent with a Ministerial pricing determination in force under section 581ZA.

(6) An arbitrator must not make a determination under this section if the determination would have the effect of:

(a) preventing a designated Telstra successor company from complying with an undertaking in force under section 577A; or

(b) preventing Telstra from complying with an undertaking in force under section 577C or 577E; or

(c) if a final migration plan is in force - requiring a designated Telstra successor company to engage in conduct in connection with matters covered by the final migration plan.

(7) If:

(a) an agreement mentioned in paragraph (1)(a) is in force; and

(b) the agreement is in writing;

a determination under this section has no effect to the extent to which it is inconsistent with the agreement.

581ZA Ministerial pricing determinations

(1) The Minister may, by legislative instrument, make a determination setting out principles dealing with price-related terms and conditions relating to the obligations imposed by subsection 581Y(1). The determination is to be known as a Ministerial pricing determination .

(2) In this section:

price-related terms and conditions means terms and conditions relating to price or a method of ascertaining price.

Division 3 - Access to telecommunications transmission towers

581ZB Definitions

In this Division:

NBN corporation has the same meaning as in section 577BA.

telecommunications transmission tower means:

(a) a tower; or

(b) a pole; or

(c) a mast; or

(d) a similar structure;

used to supply a carriage service by means of radiocommunications.

581ZC Extended meaning of access

For the purposes of this Division, giving access to a tower includes replacing the tower with another tower located on the same site and giving access to the replacement tower.

581ZD Access to telecommunications transmission towers

(1) An eligible company must, if requested to do so by a carrier, give the carrier access to a telecommunications transmission tower owned or operated by the eligible company.

Note 1: See also subsection (11) (when carrier is entitled to make a request).

Note 2: See also clause 33 of Schedule 1.

(2) Subsection (1) is a civil penalty provision.

Note: Part 31 provides for pecuniary penalties for breaches of civil penalty provisions.

(3) The eligible company is not required to comply with subsection (1) unless:

(a) the access is provided for the sole purpose of enabling the carrier to install a facility used, or for use, in connection with the supply of a carriage service by means of radiocommunications; and

(b) the carrier gives the eligible company reasonable notice that the carrier requires the access.

(4) The eligible company is not required to comply with subsection (1) in relation to a particular telecommunications transmission tower if there is in force a written certificate issued by the ACCC stating that, in the ACCC's opinion, compliance with subsection (1) in relation to that tower is not technically feasible.

(5) In determining whether compliance with subsection (1) in relation to a tower is technically feasible, the ACCC must have regard to:

(a) whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

(b) whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and

(c) if compliance is likely to have a result referred to in paragraph (a) or (b) - whether there are practicable means of avoiding such a result, including (but not limited to):

(i) changing the configuration or operating parameters of a facility situated on the tower; and

(ii) making alterations to the tower; and

(d) such other matters (if any) as the ACCC considers relevant.

(6) Before issuing a certificate under subsection (4), the ACCC may consult the ACMA.

(7) If the ACCC receives a request to make a decision about the issue of a certificate under subsection (4), the ACCC must use its best endeavours to make that decision within 10 business days after the request was made.

(8) Subsection (1) does not impose an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects:

(a) depriving any person of a right under a contract that was in force at the time the request was made;

(b) preventing a designated Telstra successor company from complying with an undertaking in force under section 577A;

(c) preventing Telstra from complying with an undertaking in force under section 577C or 577E;

(d) if a final migration plan is in force - requiring a designated Telstra successor company to engage in conduct in connection with matters covered by the final migration plan.

(9) If, at the time the request was made:

(a) one or more provisions (the contingent provisions ) of a contract have not come into force because:

(i) the contingent provisions are subject to a condition precedent; and

(ii) the condition precedent has not been satisfied; and

(b) there is a possibility that the condition precedent could become satisfied; and

(c) assuming that the condition precedent had been satisfied:

(i) the contingent provisions would come into force; and

(ii) the person would have a right under the contingent provisions;

paragraph (8)(a) has effect, in relation to the contract, as if, at the time the request was made:

(d) the contract was in force; and

(e) the person had the right under the contract.

(10) For the purposes of subsection (1), if:

(a) there is an agreement in force between Telstra or a designated Telstra successor company and an NBN corporation; and

(b) the agreement relates to the NBN corporation's access to a telecommunications transmission tower owned or operated by Telstra or the designated Telstra successor company; and

(c) apart from this section, the agreement would result in the NBN corporation being the operator of the telecommunications transmission tower;

the NBN corporation is taken not to be the operator of the telecommunications transmission tower.

(11) A carrier is not entitled to make a request under subsection (1) of this section before the end of the 60-day period beginning on the day after the day specified in the instrument made under subsection 581ZH(3).

581ZE Terms and conditions of access

(1) An eligible company must comply with subsection 581ZD(1) on such terms and conditions as are:

(a) agreed between the following parties:

(i) the eligible company;

(ii) the carrier concerned; or

(b) failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

(2) The regulations may make provision for and in relation to the conduct of an arbitration under this section.

(3) The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chairperson of the ACCC.

(4) Subsection (3) does not, by implication, limit subsection (2).

(5) An arbitrator must not make a determination under this section if the determination would have the effect of:

(a) preventing a designated Telstra successor company from complying with an undertaking in force under section 577A; or

(b) preventing Telstra from complying with an undertaking in force under section 577C or 577E; or

(c) if a final migration plan is in force - requiring a designated Telstra successor company to engage in conduct in connection with matters covered by the final migration plan.

(6) If:

(a) an agreement mentioned in paragraph (1)(a) is in force; and

(b) the agreement is in writing;

a determination under this section has no effect to the extent to which it is inconsistent with the agreement.

581ZF Code relating to access

(1) The ACCC may, by legislative instrument, make a Code setting out conditions that are to be complied with in relation to the provision of access under this Division.

(2) An eligible company must comply with the Code.

(3) This section does not, by implication, limit a power conferred by or under this Act to make an instrument.

(4) This section does not, by implication, limit the matters that may be dealt with by codes or standards referred to in Part 6.

(5) Subsections (3) and (4) do not, by implication, limit subsection 33(3B) of the Acts Interpretation Act 1901.

581ZG This Division does not limit Division 2

This Division does not, by implication, limit Division 2.

Division 4 - Review of corporate control percentage

581ZH Review of corporate control percentage

(1) Within 6 months after the commencement of this section, the ACCC must conduct a review of whether a determination should be made under subsection 581W(3) and, if so, the percentage that should be specified in the determination.

(2) The ACCC must:

(a) prepare a written report of the review; and

(b) give the report to the Minister.

(3) The ACCC must, by notifiable instrument, specify the day on which the report was given to the Minister.

(4) The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the day on which the report is given to the Minister.