Updated as at 30/8/2001.

The current regulatory framework for telecommunications is contained in a package of Commonwealth Acts, the most significant of which are:

* the Telecommunications Act 1997 (Cth) ;
* the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) ;
* Parts XIB and XIC of the Trade Practices Act 1974 (Cth) ;
* the ; and
* the Australian Communications Authority Act 1997 (Cth) .

The Telecommunications Act 1997 (Cth) regulates the carriage of communications between persons and persons, between things and things and between persons and things, in whatever form, by means of guided and/or unguided electromagnetic energy. It does not regulate the licensing or control of broadcasting services or the content of communications. Regulation of broadcasting and content, including online content, is the responsibility of the Australian Broadcasting Authority under the Broadcasting Services Act 1992 and is also dealt with in state legislation such as Victoria’s Classification (Publication, Films and Computer Games) (Enforcement) Act 1995.

1. The Regulators

There are two regulators of the telecommunications industry, namely:
* the Australian Communications Authority (ACA); and
* the Australian Competition and Consumer Commission (ACCC).

The ACA is responsible for administering the licensing of carriers under the Telecommunications Act 1997, for the regulation of consumer and technical issues under the Telecommunications Act 1997 and under The Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) and for the management of the radiofrequency spectrum under the Radiocommunications Act. It is also responsible for:

* giving directions to carriers and carriage service providers (which may include ISPs);

* investigating telecommunications related incidents and holding public inquiries; and

* the co-ordination, development and enforcement of industry codes of practice, industry standards and technical standards.

The ACCC administers the telecommunications industry-specific anticompetitive conduct and access regimes in Parts XIB and XIC respectively of the Trade Practices Act 1974 (Cth) . The general prohibitions against anti-competitive conduct contained in Part IV of that Act also apply to the telecommunications industry and also are administered by the ACCC.

2. Industry Self Regulation

Under the current regulatory regime, the telecommunications industry is intended to be largely self-regulated (1). The industry has taken steps in this direction with the establishment of two industry bodies - the Australian Communications Industry Forum (ACIF) and the Australian Communications Access forum.

ACIF is the vehicle through which the industry develops industry standards and codes of practice. ACIF has published a number of standards and codes including those in relation to customer barring, pre-selection, call charging and billing accuracy, handling of life threatening and unwelcome calls, calling number display and customer information on prices, terms and conditions.

The Australian Communications Access Forum Inc, an incorporated association is the declared Telecommunications Access Forum (TAF) with responsibilities under the Trade Practices Act to produce a Telecommunications Access Code and make recommendations in relation to declared services.

The Telecommunications (Consumer Protection and Service Standards) Act 1999 requires that carriers and carriage service providers (including ISPs) must enter into the Telecommunications Industry Ombudsman (TIO) Scheme (2) . The scheme provides for the Telecommunications Industry Ombudsman to investigate and make determinations and directions relating to end-user complaints.

3. Carriers

There is no limit on the number of carriers that may operate in Australia. There are currently over 50 registered carriers. The largest are Telstra, Cable & Wireless Optus, Vodafone and AAPT.

Any owner, including a part owner, of a network unit that is used to supply a carriage service to the public must hold a carrier licence (3) . The only exception to this requirement is owners of network units for which responsibility has been assumed by a nominated carrier or where the network units in question are exempted.

What is a network unit? There are essentially two types: Line links and designated radiocommunications facilities. In addition, the Minister for Communications, Information Technology and the Arts ("the Minister") has the power to determine that certain facilities are network units (4) . Ownership of other facilities necessary for the provision of carriage services such as switches does not require the holding of a carrier licence.

A network unit is used to supply services to the public if the network unit is used to carry communications between two end-users both of whom are outside the "immediate circle" of the owner of the network unit, or where the network unit is used to supply point-to-multipoint services, at least one end-user is outside the immediate circle of the owner of the network unit (5) .

Only a corporation (including a foreign corporation), a partnership of corporations or a public body can apply for a carrier licence (6) . The ACA must not grant a licence unless the applicant has had a current industry development plan approved by the Minister.

As a general rule, there is no time limit on a licence. Subject to the payment of the annual charge, a licence continues in force until it is surrendered or cancelled.

Carrier licences are subject to a number of conditions set out in the telecommunications related legislation and any conditions declared by the Minister.

4. Nominated carrier declarations

Owners of network units need not obtain a carrier licence if a carrier is prepared to assume responsibility for the network unit by electing to become the network’s nominated carrier. If the ACA is satisfied that an applicant carrier will be able to comply with all of the obligations associated with the network units, the ACA may declare the applicant carrier to be the nominated carrier of the network units (7) .

5. Universal service obligation and digital data service obligation

The universal service obligation (USO) is the obligation designed to ensure that all people in Australia, wherever they reside or carry on business, have reasonable access, on an equitable basis, to standard telephone services, pay phones and any other services which may be prescribed.

The Minister has the power to determine primary service providers. One primary service provider must be determined in respect of each service obligation in respect of each universal service area.

The Minister also has the power to determine that supply of a USO in an area is contestable. A carrier or carriage service provider wishing to be a competing service provider in respect of a contestable service obligation in a specified area can apply to the ACA for approval.

The Minister determines entitlements to a subsidy for providing universal services. The amounts charged for universal services and digital data services are subject to price controls.

The digital data service obligation is designed to ensure that general digital data services or special data services are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business. General digital data services (a 64 Kilobits ISDN equivalent service) must be available on demand to 96 per cent of the population. Special digital data services (satellite downlink service) must be available on demand to people in the last 4 per cent of the population. Carriage and carriage service providers may be declared to be digital data service providers. Currently, Telstra is the only digital data service provider.

The Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) contains the scheme for the assessment, collection, recovery, and distribution of the universal service levy which is intended to fund the USO subsidy and share the cost of fulfilling the digital data service obligations (8) . An assessment is made for each financial year.

6. National Relay Service

The national relay service provides persons who have a hearing and/or speech impairment with access to a standard telephone service on terms comparable to those on which other Australians have access to a standard telephone service. The cost of the NRS is funded by a levy imposed on carriers and also is apportioned among the carriers in proportions calculated by reference to the proportion that each carrier’s eligible revenue bears to the total eligible revenue for all carriers (9) .

7. Carrier powers and immunities

The current regime for carrier powers and immunities is contained in Schedule 3 of the Telecommunications Act 1997 (Cth) . The general rule is that carriers are subject to State and Territory environmental and planning laws except in relation to ’authorised activities’ including:

*entering onto land for the purpose of inspecting it to assess its suitability for the installation of facilities. This includes the power to do whatever is necessary to determine whether the land is suitable, such as taking surveys and samples, sinking bores, digging pits, felling and lopping sewage, gas or electricity mains, pipes or cables;

*installing a 'low impact' facility, a facility for which the carrier has a facility installation permit or a temporary facility used by or for a defence organisation for defence purposes; and

*maintaining a facility which has already been installed. 'Maintenance' is defined very broadly to include the alteration, removal or repair of a facility, providing it with additional material or information, monitoring its function, and lopping or clearing of vegetation as required for its operation.

When carrying out these authorised activities, a carrier must (within specified time frames) comply with the obligations set out in Schedule 3 of the Telecommunications Act 1997 and the additional conditions in the Telecommunications Code of Practice.

If a person suffers financial loss or damage in relation to property as a result of anything done by a carrier in relation to an authorised activity the carrier must pay reasonable compensation. If the amount of compensation cannot be agreed, it will be determined by a court.

As a general rule, carriers will continue to own the facilities they install, regardless of whether the facilities have become fixtures.

8. Carriage service providers

A carriage service provider is any person, including a carrier, who supplies or proposes to supply to the public a carriage service between two or more points where at least one of the points is in Australia using:

*a network unit;

*a line link connecting a place in Australia and a place outside Australia; or

*a satellite-based facility (10) .

A carriage service is supplied to the public if it is used for the carriage of communications between two end-users both of whom are outside the 'immediate circle' of the carriage service provider or, where the service is used to supply point-to-point multipoint services, at least one end-user is outside the immediate circle of the carriage service provider (11) .

9. Content service providers

A content service provider is any person who uses or proposes to use a carriage service between two or more points where at least one of the points is in Australia, to supply a content service to the public (12) .

Leaving aside any category of content service that may be declared, the legislation specified two categories of content services:

*broadcasting services; and

*on-line services (on-line information services, on-line entertainment services, etc) (13) .

It follows that the legislation contemplates two main types of content service providers: broadcasters and on-line service providers. In some cases broadcasters and on-line service providers will also be carriers and/or carriage service providers. The categories are not mutually exclusive.

10. Internet service providers

An ISP providing Internet access services only (Internet Access Provider or IAP) will be regulated as a carriage service provider. An ISP that provides access to or maintains a publicly available website or mirror site may be regulated as both a carriage service provider and a content service provider.

11. General obligations imposed on carriage service providers (including IAPs)

A service provider must comply with the rules that apply to the provider. The standard service provider rules are set out in Schedule 2 to the Telecommunications Act 1997 (Cth) . Rules applying to specified services may be made by the ACA. In addition carriage service providers must comply with any standard access obligations that are applicable under Part XIC of the Trade Practices Act 1974 (Cth) .

The standard service provider rules include the following:

*A carriage service provider who supplies a standard telephone service must make operator services (services for dealing with faults and service difficulties) and directory assistance services available to each end-user of that standard telephone service (either by providing the services itself or arranging for another person to provide the services).

*A carriage service provider who supplies a standard telephone service must provide itemised billing calls made using the service (except where this service is not required by the customer and, in the case of local calls, only if requested); and

*A carriage service provider must provide to Telstra such information as is reasonably required in connection with Telstra’s fulfilment of the obligation to provide and maintain an integrated public number database.

A service provider must also comply with the Telecommunications Act 1997 (Cth) and with the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) . These obligations include:

*Complying with industry standards, performance codes or schemes for the protection of residential customers;

*Offering the option of untimed local calls for standard telephone services;

*Entering into the Telecommunications Industry Ombudsman Scheme: carriers and eligible ISPs must enter into the Telecommunications Industry Ombudsman (TIO) Scheme. Membership of the scheme is open to all carriers and ISPs (14). Subject to various guidelines and consultations, the ACA can direct (or exempt) specified carriers or eligible ISPs to join the TIO Scheme (15). ISPs can be compelled by a court to join the TIO scheme. An ISP member who fails to comply with the TIO Scheme breaches the service provider rules (16). The TIO must maintain a register of scheme members open for public inspection at all reasonable times (17).

*Protecting the confidentiality of information routed through a network. A use or disclosure of confidential information will not be an offence if made under lawful authorisation, in connection with the person’s duties as a telecommunications contractor or other eligible person, as a witness in a judicial proceeding, for law enforcement purposes, the protection of public revenue or to avert a threat to a person’s life. A record must be kept of such disclosures in certain cases;

*Not connecting unlabelled or incorrectly labelled, unauthorised or dangerous equipment to a telecommunications network. The manager of a telecommunications network who suffers loss as a consequence may seek damages, an account of profits, injunctive relief or a disconnection order; and

*Keeping detailed records and books enabling the separate identification of charges and services.

Carriage service providers are also under a general obligation to assist Commonwealth, State or Territory authorities for the purposes of enforcing the criminal law, protecting the public revenue and safeguarding national security.

12. Interception Related Obligations of Carriers and Carriage Service Providers (including IAPs)

Provided the federal Attorney-General does not require a carrier or carriage service provider (including an IAP) to provide "interception capabilities" or "special assistance capabilities" pursuant to a ministerial determination, the IAP is simply obligated to ensure its network or facilities will enable a communication passing over it to be intercepted in accordance with a warrant issued under the Telecommunications (Interception) Act 1979 (Cth) (18) . The obligation is to ensure interception capability is developed, installed and maintained to the relevant standard.

An IAP may be required to decrypt messages encrypted by the IAP but is not obliged to decrypt communications which have been encrypted by customers before being carried over a network.

The interception of communications passing over a telecommunications system or network is prohibited unless performed:

*by an employee of a carrier and the information concerns the operation or maintenance of a network or supply of services by the carrier;

*by an officer of an agency sch as the Australian Federal Police issued with a valid warrant;

*pursuant to the Australian Security Intelligence Organisation’s (ASIO) functions;

*in connection with an investigation of the Australian Federal Police or National Crime Authority;

*by an employee of a carrier or licensed service provider or any other person in the course of efficiently carrying out their duty and connected with routine line or equipment installations;

*by an employee tracing a person who is suspected of contravening the Crimes Act 1914 (Cth) Part VIIB

*in the course of duties by an ASIO officer, a federal or state police officer when party to a communication (or with the consent of a party who is in communication) with a person reasonably suspected of committing a serious offence or suicide.

Subject to specified exemptions, the further communication, use, recording or use in evidence of information obtained from intercepted communications (whether legally obtained or unlawfully) is prohibited.

13. Industry Codes of Conduct affecting ISPs

The ACA may prepare a legally enforceable "industry standard" if, after requesting the preparation of an industry code, no code satisfactory to the ACA has been developed. Civil penalties attach to industry participants who fail to comply with an industry standard (19).

In the event an Industry Code of Conduct is developed, the ACA retains a power to impose sanctions for failure to comply with an industry code. The legislation sets out various matters industry codes of practice may deal with.

The Protection of Personal Information of Customers of Telecommunications Providers Code (registered 1 May 2000) (Code) applies to all carriers, carriage service providers and content service providers. If a website operator is considered a content provider for the purposes of the Code, the website operator will be subject to ACA regulation ("formal warnings", written directions to comply, penalties for non compliance) despite not being a signatory to the Code.

The Code expands on but does not override the privacy provisions in the Telecommunications Act 1997 (Cth) or in any other relevant legislation.

14.Access rules

(a) Access to Services - Declaration Process

Two types of services may be declared, namely:

*listed carriage services; and

*services that facilitate the supply of listed carriage services.

The ACCC may declare a service on the recommendation of the Telecommunications Access Forum (TAF) or after conducting its own public inquiry process. Where the ACCC acts on the TAF’s recommendation, the ACCC merely has to be satisfied that the TAF has given representatives of likely access seekers and consumers a reasonable opportunity to comment. Before declaring a service after conducting its own inquiry process, the ACCC must be satisfied that declaration will promote the long-term interests of end-users of carriage and content services.

Certain services were deemed to be declared as at 1 July 1997, these being:

*domestic PSTN, GSM and AMPS originating and terminating service;
*domestic fixed-line transmission on routes between major centres (excluding capacity on routes between Sydney, Canberra and Melbourne);
*digital data transmission capacity access;
*conditioned local loop service;
*AMPS to GSM broadcasting service; and
*broadcasting access service.

The ACCC has subsequently declared, a number of additional services, including:

*the unconditioned local loop service, local PSTN originating and terminating service and local carriage service;
*ISDN originating and terminating services; and
*analogue subscription television broadcast carriage service.

Once a service is declared, a number of standard access obligations automatically apply to any carrier or carriage service provider supplying the declared service, including the obligation to supply a declared service on request and the obligation to permit interconnection as may be necessary to enable the declared service to be supplied.

(b) Terms and Conditions of Access

Access must be provided on such terms and conditions as are agreed between the Access Provider and the Access Seeker. If agreement cannot be reached, supply must be in accordance with any terms and conditions contained in an access undertaking covering the service or, if there is no relevant undertaking, on such terms and conditions as are determined by the ACCC.

In July 1997, the ACCC issued a guide to the pricing principles it will apply when it is required to determine an access dispute. The primary principles identified by the ACCC are that access prices should:

*be cost based;
*not discriminate in any way which reduces efficient competition;
*not be inflated to reduce competition, independent markets; and
*not be predatory.

The ACCC has also issued a guide to the declaration of telecommunications services which outlines the ACCC’s approach to declaration issues.

15. Anti-competitive conduct

Anti-competitive practices in the Australian telecommunications industry are subject to a general anti-competitive regime contained in Part IV of the TPA and also to an industry specific anti-competitive conduct regime in Part XIB of that Act. The ACCC is responsible for the administration of both regimes.

Under the "special competition rule" in Part XIB, a carrier or carriage service provider will be held to have engaged in anti-competitive conduct if it has a substantial degree of power in a market and takes advantage of that power with the effect, or likely effect, of substantially lessening competition in that or any other telecommunications market. This is an "effects based" test. The equivalent provision in Part IV (section 46) requires an anti-competitive purpose.

The ACCC has the power to issue competition notices. These are written statements by the ACCC that conduct is anti-competitive. They are not orders to cease the relevant conduct. If the conduct continues, which it may, legal proceedings may be instituted for an injunction to stop the conduct or for damages by any person who has suffered loss as a result of the conduct.

The ACCC can direct a carrier or carriage service provider to file a tariff for particular services if the ACCC is satisfied that the carrier or carriage service provider has a substantial degree of power in a telecommunications market. This means that the ACCC does not automatically review the anti-competitive effects of a new service before it is offered to retail and wholesale markets.

In addition to powers relating to tariff filing, the ACCC has the power to make rules requiring a carrier or carriage service provider to keep and retain records relevant to a number of matters within the ACCC’s regulatory responsibilities including whether the competition rule has been, or is being, complied with and whether or not tariff filing directions are being complied with. The ACCC may also require those carriers or carriage service providers to prepare reports of information contained in those records.

Spectrum allocation and management

The Radiocommunications Act 1992 (Cth) provides for the management of the radio frequency spectrum including the allocation and use of the spectrum, charging for the use of the spectrum, the licensing of radiocommunications, and the making of standards and other technical regulations concerning the use of the spectrum.

The radiocommunications that are regulated are radio emissions or reception of radio emissions for the purpose of communicating information between persons and persons, persons and things, and things and things, including between a part of a thing and another part or the same part of that thing (eg, as in the operation of a radar device). A radio emission is any omission of electromagnetic energy of frequencies less than 420 terahertz.

The task of planning and managing spectrum use is undertaken by the ACA. The ACA is responsible for the preparation of plans governing the allocation of spectrum under the licensing systems provided for in the Act.

The unlicensed operation of or the unlawful possession of a radiocommunications device, that is without authorisation under a spectrum licence, an apparatus licence or a class licence, is an offence punishable in certain circumstances by imprisonment and in others by the imposition of a financial penalty. In addition, provision is made for civil proceedings to be brought in the Federal Court by any person affected by the unlicensed or unlawful operation of a radiocommunications device.

Each of the spectrum, apparatus and class licences are subject to certain conditions.

Spectrum licences authorise licensees to use spectrum space. Spectrum licensees are free to operate any radiocommunications device within those portions of the spectrum bounded by a frequency band with geographical area and terms set out in a licence. A spectrum licence may, for example, be given to allow mobile telecommunications, regardless of the type of equipment used. Generally, spectrum licences are price based (to be acquired by auction or tender), although they can be allocated for a pre-determined or pre-negotiated price. The ACCC and the ACA may impose limits on the acquisition of such licences. Spectrum licences may be issued for up to 15 years and are tradeable, they are not however renewable and, except in exceptional circumstances, reallocation at the end of the licence period will be in accordance with the procedures which apply to allocation.

Apparatus licences authorise the operation of specified radiocommunications devices or radiocommunications devices of a specified kind. In accordance with the Act, the ACA has determined the types of apparatus licences that it may issue, for example, maritime ship licences, broadcasting licences, earth licences, earth receive licences, multipoint distribution station licences, space licences and space receive licences. Apparatus licences can be issued using an administrative allocation system or a price based method. Apparatus licences will not be renewed if they use spectrum which has, since the issue of the licence, been reallocated for use under spectrum licences and may, in such circumstances and if issued after 1 July 1997, be cancelled. A third party may be authorised to operate under an apparatus licence.

Class licences authorise the operation of radiocommunications devices without the need for an apparatus or spectrum licence. If a device falls within the terms of an existing class licence, no formal approval by the ACA is required for its use and no licence fee is required to be paid.

In auctions of spectrum licences conducted since the introduction of such licences, the ACA has used simultaneous multiple round auction (SMRA) method first used by the Federal Communications Commission in the auction of personal communications system licences in the United States.

Technical standards under the Radiocommunications Act 1992 (Cth)

Standards can be made under the Radiocommunications Act concerning the performance of specified devices or the permitted levels of radio omissions from devices. A device includes radiocommunications transmitted and received as any other thing, any use or function of which is capable of being interfered with by radio omissions.

The ACA may require any person who supplies or imports a device included in a specified class of devices to affix to each device a label that indicates whether the device meets the requirements of the standards specified.

It is an offence, punishable on conviction by the imposition of the financial penalty, to supply unlabelled devices when they are covered by a labelling requirement, to apply a label before any conditions specified in the labelling rules have been met or to falsely apply a label.

Telecommunications offences under the Crimes Act 1914 (Cth)

It is an offence to:

*tamper or interfere with facilities belonging to a telecommunications carrier;

*hinder the normal operations of a carriage service by manipulating, tampering or interfering with a facility operated by a carrier;

*use communications for improper purposes;

*intentionally or recklessly cause communications to be received by a person or service other than to whom it is directed;

*send signals to satellite without lawful authority or excuse;

*obtain carriage services with the intention of defrauding the carrier of any rental, fee or charge duly payable;

*possess or operate a call switching device without appropriate authorisation; or

*use equipment in relation to a network for unlawful purposes.



Other relevant Fact Sheets:

Sources of Law
Telecommunications Act 1997 (Cth)
Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth)
Telecommunications (Interception) Act 1979 (Cth)
Crimes Act 1914 (Cth),
Radiocommunications Act 1992 (Cth)
Protection of Personal Information of Customers of Telecommunications Providers Code (registered 1 May 2000),
Parts XIB and XIC of the Trade Practices Act 1974 (Cth)
Australian Communications Authority Act 1997 (Cth) .


End Notes
1. section 4
2. Telecommunications (Consumer Protection and Service Standards) Act 1999, section 128
3. section 42
4. Telecommunications Act 1997 (Cth) , sections 26-28
5. Telecommunications Act 1997, section 44
6. Telecommunications Act 1997 (Cth) section 52.
7. Telecommunications Act 1997 (Cth) section 81.
8. Telecommunications (Consumer Protection and Service Standards) Act 1999, Part 2.
9. Telecommunications (Consumer Protection and Service Standards) Act 1999, Part 3.
10. Telecommunications Act 1997 (Cth) section 87.
11. Telecommunications Act 1997 (Cth) section 88.
12. Telecommunications Act 1997 (Cth) section 97.
13. Telecommunications Act 1997 (Cth) section 15.
14. Telecommunications (Consumer Protection and Services Standards) Act 1999 (Cth) sections 127 , 128.
15. Telecommunications (Consumer Protection and Services Standards) Act 1999 (Cth), sections 129 , 130 , 131.
16. Telecommunications Act 1997 (Cth), sections 98
Telecommunications (Consumer Protection and Services Standards) Act 1999 (Cth), section 132 .
17. Telecommunications (Consumer Protection and Services Standards) Act 1999 (Cth), section 133 .
18. Telecommunications Act 1997 (Cth) section 324.
19. Telecommunications Act 1997 (Cth) , Part 6.