WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Telecommunications (Transitional Provisions and
Consequential Amendments) Bill 1996
Date Introduced: 5 December 1996
House: House of Representatives
Portfolio: Communications and the Arts
Commencement: The commencement date of each of the
provisions will be dealt when the text of the provision is
considered in the Main Provisions section.
This Bill is a part of a package of Bills, the purpose of which
is to implement a new regulatory framework for the
telecommunications industry.Specifically the Bill provides for the
transition to the new framework by treating the acts done under the
Telecommunicaitons Act 1991 as if they were done under the
corresponding provision in the Telecommunications Act
1996.The Bill also continues certain provisions of the 1991 Act
beyond 1 July 1997 in respect of their application to events
occurring before that date.
Refer to the Background contained in the Digest of the
Telecommunications Bill 1996.
Part 1 - Preliminary
This Part commences on the day on which the Act receives the
Royal Assent and contains the various commencement dates for the
other Parts and Schedules of the legislation.
Part 2 - Repeals
This Part commences on 1 July 1997 and gives effect to the
repeals set out Schedule 5 (see below).
Part 3 - Transitional
This Part contains 21 Divisions.
Division 1 - The Merger of AUSTEL and the SMA (Spectrum
Management Authority)
This Division commences on the day on which the Act receives the
Royal Assent.
The Minister may cause the transfer of any Commonwealth asset
used by the SMA to the Australian Communications Authority
(ACA) (Clause 6).In respect of
any asset transferred under Clause 6, the Minister
may declare that that assets vests in the Commonwealth, i.e. cause
a re-transfer (Clause 7).
Similarly, Commonwealth liabilities relating to the SMA may be
transferred by the Minister to the ACA and subsequently
re-transferred (Clauses 8 and
9).
The Minister may declare that instruments in force immediately
before 1 July 1997 which contain a reference to the SMA or Spectrum
Manager have effect as if the reference was to the ACA or Chairman
of the ACA, respectively (Clause 14).
Any records in the possession of the Spectrum Manager
immediately before 1 July 1997 relating to the SMA are transferred
to the ACA on 1 July 1997 (Clause 15).Anything
done by the SMA before 1 July 1997 under the
Radiocommunications Act 1992 has effect as if done by the
ACA (Clause 16).
The investigatory powers of AUSTEL (under Part 15 of the
Telecommunications Act 1991 (1991 Act))
continue for the benefit of the ACA beyond 1 July 1997 in respect
of matters which arose before that date (Clause
19).Similarly AUSTEL's powers to hold public inquiries
(under Part 14 of the Telecommunications Act 1991)
continue for the benefit of the ACA beyond 1 July 1997 in respect
of matters which arose and public inquiries which commenced before
that date (Clause 20).
Clause 22 provides for the continuation of
committees established under the 1991 Act and
Radiocommunications Act 1992 as if established under the
Australian Communications Authority Act 1996.
The provisions of the 1991 Act which protect the name
and symbols of AUSTEL continue until 1 July 1998 despite the repeal
of that Act.
Division 2 - Transfer of Competition Policy Resources
from AUSTEL to the ACCC
This Division commences on the day on which the Act receives the
Royal Assent.
The Minister may cause the transfer of any of AUSTEL's assets to
the Commonwealth for purposes in connection with the performance of
the ACCC's function or exercise of its powers (Clauses
27).In respect of an asset transferred under
Clause 27, the Minister may declare that the asset
vests in the ACA, i.e. cause a re-transfer (Clause
28).
The Minister may declare that a liability of AUSTEL becomes a
liability of the Commonwealth (Clause 29).In
respect of a liability transferred under Clause
29, the Minister may declare the liability to be a
liability of the ACA, i.e. cause a re-transfer (Clause
30).
Division 3 - Telecommunications Access
Regime
This Division commences on the day on which the Act receives the
Royal Assent.
Part 8 of the 1991 Act deals with access by carriers to
networks and services of other carriers.Section 144 provides for
the registration of access agreements.
Part XIC is inserted into the Trade Practices Act 1974
by the Trade Practices Amendment (Telecommunication) Act
1996.That Part 'replaces' Part 8 and deals with the
telecommunications access regime and specifically the obligation on
carriers and carriage service providers to provide access to
certain declared services.Division 9 of Part XIC deals with
registration of agreement for access to declared services.
Clause 41 of this Bill provides that an
agreement registered under section 144 has effect, after 1 July
1997, as if the agreement was registered under Division 9.
The ACCC must prepare a statement specifying services covered by
access agreements registered under section 144 as at 13 September
1996 (Clause 39).
Part XIC commences on the date on which the Trade parctices
Amendment (Telecommunications) Act 1996 receives the Royal
Assent.The ACA is not established until 1 July 1997.In the interim,
a reference to the ACA in Part XIC is to read as a reference to
AUSTEL (Clause 42).
A dispute as to the terms and conditions of an access agreement
which is referred to AUSTEL for arbitration under section 154 of
the 1991 Act cannot be dealt with by AUSTEL, if it could
properly be notified to the ACCC for arbitration under Part XIC
(Clause 37).
Division 4 - Carrier Licences
This Division commences on the day on which the Act receives the
Royal Assent.
Clause 44 deems the holders of carrier licences
issued under the 1991 Act to be issued with a carrier
licence under the Telecommunications Act 1996
(1996 Act) on 1 July 1997.
The provisions of the 1996 Act relating to applications
for carrier licences commence on 5 June 1997.Those applications are
to be made to the ACA.The ACA is not established until 1 July
1997.Clause 45 provides that in the interim,
applications may be made to the AUSTEL.
Clause 46 provides that acts done by AUSTEL
under the 1996 Act have effect, after 1 July 1997, as if
done by the ACA.
Division 5 - Technical Standards under section 244 of
the Telecommunications Act 1991
This Division commences on 1 July 1997.
Section 244 of the 1991 Act provides for the
determination of technical standards by AUSTEL when directed by the
Minister.From 1 July 1997, those standards are taken to be
standards created by the ACA under section 121 of the 1996
Act.
Division 6- Indicative Performance
Standards
This Division commences on 1 July 1997.
Section 38(2)(b) of the 1991 Act provides that 1 of the
functions of AUSTEL is to develop indicative performance standards
relating to the quality of the standard telephone service and goods
and services supplied in connection with the standard telephone
service.Section 38(2)(c) provides that it is a function of AUSTEL
to monitor and report to the Minister on the performance of
carriers in meeting the developed standards.
Section 38(2)(c) continues in force in relation to standards,
despite the repeal of the Act, as if the reference to AUSTEL was a
reference to the ACA (Clause 48).However thatrule
ceases to apply to a standard if a code or standard expressed to
replace the first mentioned standard is determined under Part 6 of
the 1996 Act.
Division 7 - Universal Service Regime
This Division commences on 1 July 1997.
Section 290 of the 1991 Act allows the Minister to
declare a carrier to be the universal service carrier for Australia
or for a specified service area (the Minister is responsible for
ensuring the reasonable accessibility of the standard telephone
service and payphones to all people).
From 1 July 1997, such a declaration has effect as if it was
made under the corresponding provision (section 145) of the
1996 Act (Clauses 50 and
51).
Clause 55 provides that Part 13 of the 1991
Act continues to operate in respect of the imposition of the
universal service levy (the method of sharing the cost of
fulfilling the universal service obligation among carriers) and
levy debit balances in relation to the financial year ending on or
before 30 June 1997.
Division 8 - The Chart of Accounts and the Cost
Allocation Manual
This Division commences on 1 July 1997.
Section 80 of the 1991 Act requires AUSTEL to develop a chart of
accounts and cost allocation manual for use by carriers.Section 83
requires carriers to keep such books of account as are necessary to
comply with the chart of accounts and cost allocation
manual.Section 85 empowers AUSTEL to give directions to carriers
about how carriers should comply with their obligations under
section 83.
Clause 58 of this Bill continues the
application of the chart of accounts and cost allocation manual
provisions beyond 1 July 1997 until the ACCC makes rules requiring
the keeping of records under section 151BU (contained in new Part
XIB) of the Trade Practices Act 1974.
Division 9 - International Aspects of Carriers'
Activities
This Division commences on 1 July 1997.
Section 74 of the 1991 Act applies to carriers who are
signatories within the meaning of the INTELSAT agreement and the
convention on the International Maritime Satellite Organisation
(INMARSAT).The Minister may notify those carriers of the general
policies of the government applying in relation to the carrier's
performance of its functions as a signatory.
Section 350 of the 1996 Act re-enacts section 74.
Clause 59 of this Bill continues the operation
of any notification under section 74 after 1 July 1997 until a
direction is given under section 350 of the 1996 Act.
Division 10 - Cabling and Customer
Equipment
This Division commences on 1 July 1997.
Clause 61 of this Bill provides that where a cabling licence was
issued under the 1991 Act and was in force immediately before 1
July 1997,the 1996 Act has effect as if the licence was granted by
the ACA on 1 July 1997 subject to the same conditions.
Division 11 - Protection of the Confidentiality of
Communications
This Division commences on 1 July 1997.
Section 88 of the 1991 Act prohibits, subject to a number of
exceptions the disclosure or use of the contents of any
communication that has been carried by a carrier.
Clause 63 continues the operation of section 88
beyond 1 July 1997 in respect of the content of communications
which were carried or whose carriage began before that date.
Clause 64 clarifies that Part 13 of the 1996
Act (dealing with the protection of communication) does not apply
to information unless it relates to the contents of a
communications carried on or after 1 July 1997.
Division 12 - Reviews and Reports about the
Telecommunications Industry
This Division commences on 1 July 1997.
Section 399 of the 1991 Act obliges AUSTEL to review and report
to the Minister on competitive safeguards within the
telecommunications industry.
Clause 65 continues the operation of section
399 beyond 1 July 1997 where the review or report relates to a
matter that occurred during the financial year ended 30 June
1997.The ACA and the ACCC are substituted for AUSTEL where
appropriate.
Division 13 - Anti-competitive Conduct in the
Telecommunications Industry
This Division commences on the day on which the Act receives the
Royal Assent.
New Part XIB of the Trade Practices Act 1974 is
inserted by the Trade Practices Amendment (Telecommunications)
Act 1996 and commences on the day on which it receives the
Royal Assent.
Clause 66 provides that prior to 1 July 1997,
Part XIB operates as if references to a 'carrier' were references
to a carrier within the meaning of the 1991 Act, even though Part
XIB provides that 'carrier' has the same definition as in the 1996
Act.
Division 14 - The Numbering Plan
This Division commences on the day on which the Act receives the
Royal Assent.
Before the commencement of the 1991 Act, Telstra and its
predecessors were responsible for allocating numbers.Telstra still
holds some number ranges not allocated by AUSTEL.Clause
67 allows the ACA to declare, as a part of the numbering
plan, that these numbers are to be taken to have been allocated to
a specified person.
That declaration will not attract an allocation charge under the
Telecommunications (Numbering Charges) Act 1996.
Division 15 - Exercise of Power by AUSTEL Before
Relevant Commencement Dates
Clause 69 provides that section 4 of the
Acts Interpretation Act 1901 is taken to authorise AUSTEL
to exercise a power or do a thing before 1 July 1997 as if the
reference in the Telecommunications Act 1996 to the ACA
was a reference to AUSTEL.
Division 16 -Eligible Combined Areas
This Division commences on 1 July 1997.
The concept of a 'distinct place' is significant to the
determination of the boundary of a telecommunications network under
the 1991 Act and is significant in the definition of 'network unit'
under the 1996 Act.
Places are distinct unless they are part of a combined area.Two
contiguous properties form a combined area and do not constitute
distinct places where either the same person is the principal user
of all of the properties or the Minister has determined that the
combined areas are eligible combined areas (sections 12, 14 and 16
of the 1991 Act and sections 36, 38 and 40 of the 1996 Act).
Clause 71 of this Bill provides that a
determination made under the 1991 Act continues to have effect as
if made under the re-enacted provisions of the 1996 Act.
Division 17 - Actions under Section 95 and 186 of the
Telecommunications Act 1991
This Division commences on the day on which the Act receives the
Royal Assent.
Sections 91 to 94 of the 1991 Act are the provisions which, in
general terms, prohibit the supply of telecommunications services
by anyone other than a licensed carrier.
Section 95 of the 1991 Act allows a licensed carrier to apply to
the Federal Court for relief where a person has engaged or is
proposing to engage in conduct in contravention of sections 91 to
94.
Section 186 of the 1991 Act allows an aggrieved person to apply
to the Federal Court for relief where a carrier has discriminated
between 2 persons in the provision of telecommunications services
in relation to the charges for the services or the terms and
conditions of their supply.
Clause 72 continues the operation of sections
95 and 186 beyond 1 July 1997 in respect ofcontraventions occurring
before that date.
Division 18 - Interception Capabilities
This Division commences on the day on which the Act receives the
Royal Assent.
Section 73(3) of the 1991 Act allows the Minister to give a
notice to a carrier requiring the carrier to ensure that its
telecommunications system has a specified kind of interception
capability.
Section 307 is the equivalent provision in the 1996 Act.
Clause 73 provides that the from 1 July 1997, a
notice under the 1991 Act has effect as if given under section 307
of the 1996 Act.
Division 19 - The AMPS Plan
This Division commences on the day on which the Act receives the
Royal Assent.
Clause 2.2 of Telecommunications (Public Mobile Licences)
Declaration No.1 of 1992 prohibits a licensee from installing or
operating an AMPS network (i.e. an analogue mobile network) after 1
January 2000.A licensee must comply with any plan determined by the
Minister in relation to ceasing to supply AMPS services.
Clause 2.2 is re-enacted in section 346 of the 1996 Act.
Clause 74 of this Bill provides that any plan
determined under Clause 2.2 has effect from 1 July 1997, as if it
had been determined by the Minister under section 346 of the 1996
Act.
Division 20 - Technical Standards about Customer
Equipment and Customer Cabling
This Division commences on the day on which the Act receives the
Royal Assent.
Section 246 of the 1991 allows AUSTEL to determine technical
standards relating to customer equipment and cabling that is
connected to a telecommunications network.
Section 361 of the 1996 Act re-enacts that provisions in respect
of the ACA.
Clause 75 of this Bill provides that any
standard determined under section 246 has effect from 1 July 1997
as if determined by the ACA under section 361.
Division 21 - Tariffs for the Supply of Carriage
Services
This Division commences on the day on which the Act receives the
Royal Assent.
Section 190 of the 1991 Act obliges carriers to give AUSTEL a
written tariff of the carrier's charges for basic carriage services
(BCS). The terms and conditions on which a carrier
supplies telecommunications services are:
- so far as the carrier and person agree, the agreed terms
- if the carrier and person do not agree but the terms and
conditions are set out in a BCS tariff of the carrier, the terms
and conditions set out in the tariff so far as they are
applicable.
A very similar mechanism is established by Part 23 of the 1996
Act with the use of 'standard forms of agreement'.
Clause 76 of this Bill provides that between 1
July 1997 and the earlier of 31 December 1997 and when the tariff
is revoked or varied, Part 23 has effect as if the BCS tariff were
a standard form of agreement formulated under Part 23.
Part 4 - Amendments
This Part commences on 1 July 1997.
Clause 77 gives effect to the amendments set
out in Schedules 1 to 4 which are outline below.
Schedule 1 - General Amendments
This Schedule commences on 1 July 1997 and makes a number of
relatively minor consequential amendments to legislation containing
references to the 1991 Act, the term 'carrier' and the like.
Schedule 2 - Amendment of the Radiocommunications Act 1992
This Schedule commences on 1 July 1997 and makes a number of
relatively minor changes to the Radiocommunications Act
1992 as a result of the merger of the Spectrum Management Authority
and the Australian Communications Authority.
Some changes are made to the provisions of the
Radiocommunications Act 1992 in relation to public
inquiries.Specifically, hearings are to be in public except in
exceptional cases (Item 261A).The ACA is empowered
to direct that confidential material not be published (Item
261B).
Provision is made for the protection of certain symbols
associated with radiocommunications (Item
188A).
Schedules 3 and 4 - Amendments consequential on the enactment
of the Commonwealth Authorities and Companies Act 1996 and
the Financial Management and Accountability Act 1996
These Schedules commence on the day on which the Act receives
the Royal Assent.
They make relatively minor changes to the Australian
Communications Authority Act 1996 and the
Telecommunications Act 1996.
Schedule 5 - Repeal of Acts
The following Acts are repealed:
- Radiocommunications (Permit Tax) Act 1983
- Telecommunications Act 1991 - which is being
'replaced' by the Telecommunications Act 1996
- Telecommunications (Application Fees) Act 1991
- Telecommunications (Numbering Charges) Act 1991 -
there appears to be an error in the purported repeal of this
Act.There is no such Act in existence.This may be an incorrect
reference to the Telecommunications (Numbering Fees) Act
1991.That Act is being 'replaced' by the Telecommunications
(Numbering Charges) Act 1996.
- Telecommunications (Public Mobile Licence Charge) Act
1992
- Telecommunications (Universal Service Levy) Act 1991 -
which is being 'replaced' by the Telecommunications (Universal
Service Levy) Act1996.
Lee Jones
5 February 1997
Bills Digest Service
Information and Research Services
This Digest does not have any official legal status. Other
sources should be consulted to determine whether the Bill has been
enacted and, if so, whether the subsequent Act reflects further
amendments.
IRS staff are available to discuss the paper's contents
with Senators and Members and their staff but not with members of
the public.
ISSN 1323-9031
Commonwealth of Australia 1996
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Published by the Department of the Parliamentary Library,
1997.
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Last updated: 26 March 1997
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