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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Trade
Practices Amendment (Telecommunications) Bill
2001
No. ,
2001
(Communications, Information Technology and the
Arts)
A Bill for an Act to amend the
Trade Practices Act 1974, and for related purposes
Contents
Trade Practices Act
1974 3
A Bill for an Act to amend the Trade Practices Act
1974, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Trade Practices Amendment
(Telecommunications) Act 2001.
This Act commences on the day on which it receives the Royal
Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1 After section 152AQ
Insert:
Determination
(1) The Commission must, by writing, determine principles relating to the
price of access to a declared service.
Note: See subsection (6) for the effect of the
determination.
(2) The determination may also contain price-related terms and conditions
relating to access to the declared service.
Timing
(3) The Commission must make such a determination at the same time as, or
as soon as practicable after:
(a) the Commission declares a service to be a declared service;
and
(b) if the Commission varies a declared service—that
variation.
Consultation
(4) Before making such a determination, the Commission must:
(a) publish a draft of the determination and invite people to make
submissions to the Commission on the draft determination; and
(b) consider any submissions that are received within the time limit
specified by the Commission when it published the draft determination.
Publication
(5) The Commission must publish the determination in such manner as it
considers appropriate (including in electronic form).
Arbitration
(6) The Commission must have regard to the determination if it is required
to arbitrate an access dispute under Division 8 in relation to the declared
service.
Ministerial pricing determinations prevail
(7) A determination under this section has no effect to the extent that it
is inconsistent with any Ministerial pricing determination.
Definition
(8) In this section:
price-related terms and conditions means terms and conditions
relating to price or a method of ascertaining price.
2 At the end of Division 3 of
Part XIC
Add:
The Commission must, in exercising its powers under sections 152BBA
and 152BBC, have regard to the desirability of access providers (within the
meaning of section 152AR) and access seekers agreeing on terms and
conditions as mentioned in paragraph 152AY(2)(a) in a timely manner.
3 After section 152CL
Insert:
The Commission must, in exercising its powers under this Division, have
regard to the desirability of access disputes being resolved in a timely manner
(including through the use of alternative dispute resolution methods such as
mediation and conciliation).
Note: The Commission must also have regard to the relevant
pricing determination under section 152AQA.
4 Subsections 152CN(1) and
(2)
Repeal the subsections, substitute:
Withdrawal by carrier or provider
(1) If the carrier or provider notified the access dispute, the carrier or
provider may withdraw the notification at any time before the Commission makes
its final determination, but only with the consent of:
(a) the access seeker; or
(b) if the carrier or provider is unable to obtain the consent of the
access seeker—the Commission.
Withdrawal by access seeker
(2) If the access seeker notified the access dispute, the access seeker
may withdraw the notification at any time before the Commission makes its final
determination, but only with the consent of:
(a) the carrier or provider (as the case may be); or
(b) if the access seeker is unable to obtain the consent of the carrier or
provider—the Commission.
No other withdrawal
(2A) A notification may not be withdrawn in any other
circumstances.
Note: The following heading to subsection 152CN(3) is
inserted “Consequences of withdrawal”.
5 Subsection 152CPA(3)
Repeal the subsection.
6 Subsection 152CPA(12)
Repeal the subsection.
7 After section 152CR
Insert:
Publication
(1) The Commission may publish, in whole or in part, a determination and
the reasons for making the determination. It may do so in such manner as it
considers appropriate (including in electronic form).
Consultation
(2) Before doing so, the Commission must give each party to the
determination a notice in writing:
(a) specifying what the Commission is proposing to publish; and
(b) inviting the party to make a written submission to the Commission
within 14 days after the notice is given:
(i) identifying any part of what the Commission is proposing to publish
that the party considers should not be published; and
(ii) setting out the party’s reasons for that view.
(3) In deciding whether to do so, the Commission must have regard to the
following matters:
(a) any such submission received within that 14 day period;
(b) whether publication would be likely to promote competition in markets
for listed carriage services (within the meaning of the Telecommunications
Act 1997);
(c) whether publication would be likely to facilitate the operation of
this Part;
(d) such other matters as the Commission considers relevant.
8 Subsection 152CV(1)
Omit “2 or more”, substitute “1 or more”.
9 Sections 152CW and
152CWA
Repeal the sections, substitute:
2 or more members—Chairperson part of arbitration
(1) If:
(a) the Commission is constituted under section 152CV by 2 or more
members of the Commission; and
(b) the Chairperson is one of those members;
then the Chairperson is to preside at the arbitration.
2 or more members—Chairperson not part of
arbitration
(2) If:
(a) the Commission is constituted under section 152CV by 2 or more
members of the Commission; and
(b) the Chairperson is not one of those members;
then the Chairperson must nominate one of those members to preside at the
arbitration.
2 or more members—Chairperson part of arbitration
(1) If:
(a) the Commission is constituted under section 152CV by 2 or more
members of the Commission; and
(b) the Chairperson is one of those members;
then the procedural powers of the Commission in relation to the arbitration
may be exercised by either or both of the following:
(c) the Chairperson;
(d) any other of those members nominated in writing by the Chairperson for
the purposes of this paragraph.
2 or more members—Chairperson not part of
arbitration
(2) If:
(a) the Commission is constituted under section 152CV by 2 or more
members of the Commission; and
(b) the Chairperson is not one of those members;
then the procedural powers of the Commission in relation to the arbitration
may be exercised by either or both of the following:
(c) the member nominated under subsection 152CW(2) to preside at the
arbitration;
(d) any other of those members nominated in writing by the Chairperson for
the purposes of this paragraph.
Procedural powers
(3) For the purposes of this section, a procedural power of
the Commission in relation to an arbitration is a power of the Commission in
relation to the arbitration other than:
(a) a power conferred by this Division to make, vary or revoke a
determination; or
(b) a power conferred by this Division to give a draft determination to
the parties.
10 Subsections 152CX(1) and
(2)
Repeal the subsections, substitute:
Single member
(1) If:
(a) the Commission is constituted under section 152CV by one member
of the Commission; and
(b) that member stops being a member of the Commission or for any reason
is not available for the purposes of the arbitration;
then the Chairperson must direct that the Commission is to be constituted
for the purposes of finishing the arbitration by one or more members nominated
by the Chairperson.
2 or more members
(2) If:
(a) the Commission is constituted under section 152CV by 2 or more
members of the Commission; and
(b) one of those members stops being a member of the Commission or for any
reason is not available for the purposes of the arbitration;
then the Chairperson must either:
(c) direct that the Commission is to be constituted for the purposes of
finishing the arbitration by the remaining member or members; or
(d) direct that the Commission is to be constituted for that purpose by
the remaining member or members together with one or more other members
nominated by the Chairperson.
Note: The following heading to subsection 152CX(3) is
inserted “Previous record of proceedings”.
11 Subsection 152CX(3)
Omit “subsection (2)”, substitute
“subsection (1) or (2)”.
12 At the end of subsection
152CZ(1)
Add:
Note 1: The Commission may publish a determination made in
relation to the arbitration: see section 152CRA.
Note 2: Information or documents given to the Commission in
the course of the arbitration hearing may be given to a person for the purposes
of another arbitration: see section 152DBA.
13 At the end of subsection
152DB(1)
Add:
Note: The Commission may conduct a joint arbitration hearing
in relation to more than 1 access dispute: see
section 152DMA.
14 After section 152DB
Insert:
(1) For the purposes of an arbitration (the current
arbitration) of an access dispute, the Commission may give any of the
following:
(a) a party to the current arbitration;
(b) a representative of a party to the current arbitration;
(c) any other person who provides advice or assistance to a party to the
current arbitration or to the Commission;
any information, or any document or part of a document, given to the
Commission by a person (the contributor) in the course of any
other arbitration under this Division.
(2) The Commission may do so only if it considers this would be likely to
result in the current arbitration being conducted in a more efficient and timely
manner.
Consultation
(3) Before making a decision under subsection (1) to give information
or a document or part of a document to a person (the recipient),
the Commission must give the contributor a notice in writing:
(a) specifying what the Commission is proposing to give the recipient;
and
(b) inviting the contributor to make a written submission to the
Commission within 14 days after the notice is given:
(i) identifying any part of what the Commission is proposing to give the
recipient that the contributor considers should not be given; and
(ii) setting out the contributor’s reasons for that view.
(4) In making a decision under subsection (1), the Commission must
have regard to the following matters:
(a) any such submission received within that 14 day period;
(b) any order or direction of the Commission under section 152DC in
relation to particular information or a particular document;
(c) any decision of the Commission under section 152DK not to give a
party to another arbitration under this Division a part of a document;
(d) such other matters as the Commission considers relevant.
15 After section 152DM
Insert:
Joint hearing
(1) If:
(a) the Commission is arbitrating 2 or more access disputes at a
particular time; and
(b) one or more matters are common to those disputes;
the Chairperson may, by writing, determine that the Commission is to hold a
joint arbitration hearing in respect of such of those disputes (the
nominated disputes) as are specified in the
determination.
(2) The Chairperson may do so only if he or she considers this would be
likely to result in the nominated disputes being resolved in a more efficient
and timely manner.
(3) The Chairperson may, for the purposes of the conduct of the joint
arbitration hearing, give written directions to the member of the Commission
presiding at that hearing.
Constitution of Commission
(4) Sections 152CV to 152CY apply in relation to the joint
arbitration hearing in a corresponding way to the way in which they apply to a
particular arbitration.
Note: For example, the Chairperson would be required to
nominate in writing 1 or more members of the Commission to constitute the
Commission for the purposes of the joint arbitration hearing.
Procedure of Commission
(5) Sections 152CZ to 152DM apply in relation to the joint
arbitration hearing in a corresponding way to the way in which they apply to an
arbitration hearing of a particular access dispute.
Record of proceedings etc.
(6) The Commission as constituted for the purposes of the joint
arbitration hearing may, for the purposes of that hearing, have regard to any
record of the proceedings of the arbitration of any nominated dispute.
(7) The Commission as constituted for the purposes of the arbitration of
each nominated dispute may, for the purposes of making a determination in
relation to that arbitration:
(a) have regard to any record of the proceedings of the joint arbitration
hearing; and
(b) adopt any findings of fact made by the Commission as constituted for
the purposes of the joint arbitration hearing.
16 Subsection 152DNA(2)
Repeal the subsection, substitute:
(2) The specified date must not be earlier than the date on which the
parties to the determination commenced negotiations with a view to agreeing on
the terms and conditions as mentioned in paragraph 152AY(2)(a).
Note: See subsection 152CP(3) for the limits on a final
determination.
17 Subsection 152DO(4)
Omit “For”, substitute “Subject to section 152DOA,
for”.
18 Subsection 152DO(5)
Omit “The”, substitute “Subject to section 152DOA,
the”.
19 After section 152DO
Insert:
For the purposes of the review, the Tribunal may have regard only
to:
(a) any information given, documents produced or evidence given to the
Commission in connection with the making of the final determination;
and
(b) any other information that was referred to in the Commission’s
reasons for making the determination.
20 After section 152DP
Insert:
(1) Paragraphs 15(1)(a) and (b) and 15A(1)(a) and (b) of the
Administrative Decisions (Judicial Review) Act 1977 do not apply to a
decision of the Tribunal under section 152DO of this Act.
(2) If a person applies to the Federal Court under subsection 39B(1) of
the Judiciary Act 1903 for a writ or injunction in relation to a decision
of the Tribunal under section 152DO of this Act, the Court must not make
any orders staying or otherwise affecting the operation or implementation of the
decision pending the finalisation of the application.
21 Section 152DR
Repeal the section, substitute:
(1) The fact that an appeal is instituted in the Federal Court from a
decision of the Tribunal under section 152DO does not affect the operation
of the decision or prevent action being taken to implement the
decision.
(2) If an appeal is instituted in the Federal Court from a decision of the
Tribunal under section 152DO, the Federal Court or a judge of the Federal
Court must not make any orders staying or otherwise affecting the operation or
implementation of the decision pending the finalisation of the appeal.
22 After section 152EA
Insert:
Nothing in this Division limits the Commission’s powers under
Division 6 of Part XIB (about record-keeping rules and disclosure
directions).
23 Application of
amendments
(1) The amendment made by item 1 applies in relation to:
(a) services that are declared to be declared services after the
commencement of this Act; and
(b) declared services that are varied after the commencement of this
Act.
(2) The amendments made by items 4, 5, 6 and 16 apply in relation to
access disputes that are notified after the commencement of this Act.
(3) The amendment made by item 7 applies in relation to determinations
that are made after the commencement of this Act.
(4) The amendments made by items 14 and 15 apply in relation to access
disputes that are notified either before or after the commencement of this
Act.
(5) The amendments made by items 17, 18 and 19 apply in relation to
applications for review that are made after the commencement of this
Act.
(6) The amendment made by item 20 applies in relation to applications
for review, or applications for a writ or injunction, that are made after the
commencement of this Act.
(7) The amendment made by item 21 applies in relation to appeals that
are made after the commencement of this Act.
24 Transitional—backdating final
determinations
(1) This item applies to a final determination made after the commencement
of this Act in respect of an access dispute notified after the commencement of
this Act.
(2) Despite the amendment made by item 16, the final determination has
no effect to the extent (if any) to which any provision of the determination is
expressed to have taken effect on a date earlier than the date of commencement
of this Act.
(3) In this item:
final determination means a final determination made by the
Commission under Division 8 of Part XIC of the Trade Practices Act
1974.