Bills Digest 90 1996-97 Telecommunications (Transitional Provisions and Consequential Amendments) Bill 1996


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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

Passage History

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.

Purpose

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.

Background

Refer to the Background contained in the Digest of the Telecommunications Bill 1996.

Main Provisions

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.

Contact Officer and Copyright Details

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

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1997.

This page was prepared by the Parliamentary Library, Commonwealth of Australia
Last updated: 26 March 1997



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