The purpose of this Part is to—

The Commission must, before the implementation date 1 January 2020 and at least annually thereafter, carry out an assessment to determine the geographic areas in which fibre fixed line access services are a specified fibre service is available to end-users.

The Commission must, by public notice, declare an area to be a specified fibre area if the Commission determines in an assessment under subsection (1) that fibre fixed line access services are a specified fibre service is available to end-users in the area.

A notice under this section must specify the date on and after which the area is to be a specified fibre area, and that date must not be before 1 January 2020.

A notice under this section may describe an area by any means, including (without limitation)—

The Commission must maintain a record of all specified fibre areas that is available, at all reasonable times, for inspection on the Commission’s Internet site in an electronic form that is publicly accessible.

In this section, specified fibre service means either of the following:

This section applies if—

Chorus may stop supplying the service referred to in subsection (1) only if—

To avoid doubt, Chorus is not required to—

This section applies if—

Chorus may stop supplying the service referred to in subsection (1) only if—

To avoid doubt, Chorus is not required to—

In this section, relevant service means either of the following:

Despite anything in this Act, the following TSO instruments cease to apply in relation to an area that becomes a specified fibre area:

In this Part, copper withdrawal code means the code approved under Schedule 2A.

Schedule 2A sets out the provisions that apply to the copper withdrawal code.

Subsection (2) applies to a standard terms determination made under section 30M that, immediately before 1 January 2020, applies to 1 or more of the following services:

Despite anything in this Act, during the period starting on 1 January 2020 and ending on the close of the day immediately before the copper review date for the relevant service,—

For the purposes of subsection (2)(a),—

Subsection (4) applies to a standard terms determination made under section 30M that, immediately before 16 December 2019, applies to 1 or both of the following services:

Despite anything in this Act, during the period starting on 16 December 2019 and ending on the close of the day immediately before the copper review date for the relevant service,—

For the purposes of subsection (4)(a),—

On and after the copper review date for a service referred to in subsection (1) or (3),—

In this section, copper review date for a service means the date on which the Commission completes, in relation to the service,—

Despite clause 1 of Schedule 3, the Commission must—

An investigation referred to in subsection (1)(a) must be completed in accordance with Part 1 of Schedule 3, except that the 240-working-days deadline referred to in clause 4(1) of Schedule 3 does not apply to the investigation.

The purpose of this Part is to promote the long-term benefit of end-users in markets for fibre fixed line access services by promoting outcomes that are consistent with outcomes produced in workably competitive markets so that regulated fibre service providers—

In this Part,—

This section is intended only as a guide to the general scheme and effect of this Part.

In this Part, unless the context otherwise requires,—

In this Part, the test for related parties is the same as the test in section 69U, applied with any necessary modifications.

A reference to the Commission applying claw-back is a reference to the Commission doing either of the following:

If the Commission requires a regulated fibre service provider to lower its prices, it must also require that the lowering of prices must be spread over time in order to minimise undue financial hardship to the regulated fibre service provider.

If the Commission allows a regulated fibre service provider to recover any shortfall, it must require that any recovery must be spread over time in order to minimise price shocks to end-users.

This section applies if the Commission or the Minister is required under this Part to make a recommendation, determination, or decision.

The Commission or Minister must make the recommendation, determination, or decision that the Commission or Minister considers best gives, or is likely to best give, effect—

Fibre fixed line access services are regulated as provided for by this Part.

A regulated fibre service provider must comply with—

The following apply in relation to a regulated fibre service provider on and after the date on which the provider is obliged to comply with this Part or (as the case requires) with a section 170 determination:

The Commission may exercise any of its powers under this Act for the purpose of monitoring compliance by regulated fibre service providers with regulation under this Part.

Fibre fixed line access services supplied by a regulated fibre service provider who is prescribed in regulations made under section 222 as being subject to information disclosure regulation are subject to information disclosure regulation under this Part (see subpart 4).

Fibre fixed line access services supplied by a regulated fibre service provider who is prescribed in regulations made under section 222 as being subject to price-quality regulation are subject to price-quality regulation under this Part (see subpart 5).

The Commission must make determinations under this section specifying how 1 or both of the following apply to regulated fibre service providers:

Determinations must—

It is not necessary for a single determination to address all matters relating to fibre fixed line access services, or to a regulated fibre service provider, and different parts of any determination may come into effect at different times.

A determination made under this section may require a regulated fibre service provider to comply with the requirements set out in any other determination that has been made under this section in respect of fibre fixed line access services.

The Commission must, as soon as practicable after making a determination under this section,—

A determination under this section is neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012 (and does not have to be presented to the House of Representatives under section 41 of that Act).

This section applies if a section 170 determination sets maximum revenues that may be recovered by, or the maximum price or prices that may be charged by, a regulated fibre service provider.

The Commission must ensure that the maximum revenues, or the maximum price or prices, reflect, in respect of any Crown financing, the actual financing costs incurred by the provider (or a related party) in the regulatory period to which the determination applies.

The Commission must, after the date on which the relevant input methodologies are determined under section 177 but before the implementation date, make determinations under section 170 specifying—

A section 170 determination relating to information disclosure regulation may last for more than 1 regulatory period and remains in force until it is amended revoked.

A section 170 determination may be amended in a material way only after the Commission has consulted with interested parties, but may be amended in a non-material way without prior consultation.

An amendment forms part of the determination it amends.

An amendment comes into force on the date specified in the amendment, which must be a date on or after the date on which it, or a summary of it, is published in the Gazette public notice is given under subsection (4)(c).

The Commission must, as soon as practicable after making an amendment,—

The purpose of input methodologies is to promote certainty for regulated fibre service providers, access seekers, and end-users in relation to the rules, requirements, and processes applying to the regulation, or proposed regulation, of fibre fixed line access services under this Part.

A relevant input methodology relating to the supply of fibre fixed line access services must be applied—

The input methodologies relating to fibre fixed line access services must include, to the extent applicable to the type of regulation under consideration,—

Every input methodology must, as far as is reasonably practicable,—

Any methodologies referred to in subsection (1)(a)(ii) that relate to establishing the initial value of fibre assets (as defined in section 176) must be determined in accordance with section 176.

The initial value of a fibre asset is calculated by—

Each regulated fibre service provider is treated, as at the implementation date, as owning a fibre asset with an initial value equal to the financial losses, as determined by the Commission, incurred by the provider in providing fibre fixed line access services under the UFB initiative for the period starting on 1 December 2011 and ending on the close of the day immediately before the implementation date.

In determining the financial losses under subsection (2), the Commission—

It is not the intention of subsection (2) subsections (2) and (2AA) that regulated fibre service providers should be protected from all risk of not fully recovering those financial losses through prices over time.

To avoid doubt, the initial value of a fibre asset determined under this section includes the costs incurred by the provider in relation to the asset—

The Commission must ensure that the value of assets or financial losses is calculated so that the maximum revenues that may be recovered by, or the maximum price or prices that may be charged by, a regulated fibre service provider under a section 170 determination reflect the actual financing costs incurred in respect of the debt or equity financing provided by, or on behalf of, the Crown to the provider (or a related party) in connection with the deployment of fibre assets under the UFB initiative.

In this section,—

The Commission must, not later than the implementation date, determine the input methodologies referred to in section 175 for fibre fixed line access services.

The Commission may, at any time after the implementation date, determine further input methodologies for fibre fixed line access services.

When the Commission begins work on an input methodology, it must publish a notice of give public notice of its intention to do so that—

During the course of its work on an input methodology, the Commission—

Any work done or action taken (including any consultation) by the Commission on input methodologies before this section commences may be taken into account as part of the work required to be done by the Commission to comply with the requirements of subsections (1) and (2).

The Commission must publish give public notice of every input methodology, and every amendment to an input methodology,—

The publication must be in a notice in the Gazette setting out—

The Commission must, at all reasonable times, make the input methodology available for inspection on the Commission’s website in an electronic form that is publicly accessible.

For the purposes of the public notice given under section 6, the full text of the matter must include the reasons for determining the methodology.

A published An input methodology or amendment is neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012 (and does not have to be presented to the House of Representatives under section 41 of that Act).

If the Commission proposes to amend an input methodology to make a material change, section 178 applies as if the amendment were a new input methodology.

The Commission may amend an input methodology to make a non-material change without complying with section 178.

If the Commission proposes to revoke an input methodology, sections 178 and 179 apply with any necessary modifications as if the revocation were a new input methodology. the Commission—

The Commission must give public notice of the revocation of an input methodology within 10 working days after the input methodology is revoked.

The Commission must review each input methodology no later than 7 years after its date of publication and, after that, at intervals of no more than 7 years.

The date of publication of an input methodology is the date on which it is published under section 179(1)(a) or, if it is subsequently published under section 179(1)(b), the date of that later publication.

The date of publication of an input methodology is—

Section 178 applies, with any necessary modifications, as if the review were a new input methodology.

Section 179 (or, if relevant, section 180(4)) applies if, after a review, an input methodology is replaced, amended, or revoked.

Any person who gave views on an input methodology determination to the Commission as part of the process under section 178, and who, in the opinion of the High Court, has a significant interest in the matter, may appeal to the High Court against the determination.

In this section and section 183, input methodology determination means any of the following:

In determining an appeal against an input methodology determination, the court may do any of the following:

The court may only exercise its powers under subsection (3)(b) only if it is satisfied that the amended, substituted, or confirmed input methodology is (or will be, in the case of subsection (3)(b)(iii)) materially better in meeting the purpose of this Part, the purpose in section 173, or both.—

If the court allows an appeal, the Commission may seek clarification from the court on any matter for the purpose of implementing the court’s decision.

There is a right of appeal under section 97 of the Commerce Act 1986 to the Court of Appeal from any decision or order of the High Court under this section on a point of law only.

An appeal under section 182(1) must be brought within 20 working days after the date on which public notice of the input methodology determination is published is given.

The appeal must be by way of rehearing and must be conducted solely on the basis of the documentary information and views that were before the Commission when it made its determination, and no party may introduce any new material during the appeal.

The High Court must sit with 2 lay members (unless the court considers that only 1 is required).

Each of the lay members must have relevant experience and be appointed from the pool of people appointed under section 77 of the Commerce Act 1986 to be members of the court for the purpose of hearing the appeal.

Section 77 of the Commerce Act 1986 applies, and section 77(14) of that Act is not limited by subsection (3) of this section.

The High Court may not stay the application of section 174 with respect to any input methodology published under section 179 until any appeal against it is finally determined.

Section 174 continues to apply with respect to every input methodology published under section 179 until any appeal against the input methodology is finally determined.

The purpose of information disclosure regulation is to ensure that sufficient information is readily available to interested persons to assess whether the purpose of this Part is being met.

A regulated fibre service provider who is subject to information disclosure regulation must—

If a regulated fibre service provider is subject to information disclosure regulation, the Commission—

To avoid doubt, the Commission may, as part of a summary and an analysis, include an analysis of how effective the information disclosure requirements imposed on the regulated fibre service providers are in achieving promoting the purpose in section 162.

In complying with subsection (2)(b), the Commission must ensure that satisfactory provision exists to protect the confidentiality of any information that may reasonably be regarded as confidential or commercially sensitive.

A section 170 determination relating to fibre fixed line access services that are subject to information disclosure regulation must specify the following:

Information required to be disclosed may include (without limitation) 1 or more of the following:

The section 170 determination may do 1 or more of the following:

The section 170 determination may not require a regulated fibre service provider to publicly disclose any provision of an existing contract that, immediately before the fibre fixed line access services became subject to information disclosure regulation, was not required by or under any other enactment to be publicly disclosed.

The purpose of this section is to enable the Commission to monitor compliance with information disclosure regulation applying to fibre fixed line access services.

A section 170 determination may require information referred to in subsection (3) to be disclosed only to the extent required to enable the purpose in subsection (1) to be met.

If a regulated fibre service provider provides services that are not subject to regulation under this Part (other services), the provider may be required to disclose—

If a regulated fibre service provider supplies goods or services that are regulated under Part 4 of the Commerce Act 1986, the Commission may require the provider to provide consolidated information and performance measures relating to all, or any combination of, those goods or services and the services regulated under this Part.

A person who is required, by a section 170 determination, to provide copies of statements and information to the public on request may charge for providing those copies.

The charge must be no more than is reasonably required to recover the costs of providing those copies.

Despite section 174, a regulated fibre service provider who is subject only to information disclosure regulation does not have to apply the following input methodologies in accordance with that section: input methodologies for evaluating or determining the cost of capital.

However, to avoid doubt, subsection (1) does not affect anything else in this subpart, and in particular does not affect—

The purpose of price-quality regulation is to regulate the price and quality of fibre fixed line access services provided by regulated fibre service providers.

A regulated fibre service provider who is subject to price-quality regulation in respect of fibre fixed line access services must—

For the purpose of monitoring compliance with this section, the Commission may, in addition to exercising its powers under section 98 of the Commerce Act 1986, issue a written notice to a regulated fibre service provider requiring it to provide any or all of the following:

A section 170 determination relating to fibre fixed line access services that are subject to price-quality regulation must specify the price-quality paths that apply to a regulated fibre service provider.

A price-quality path must specify the following:

A price-quality path may include incentives for a regulated fibre service provider to maintain or improve its quality of supply, and those incentives may include (without limitation) any of the following:

Quality standards may, subject to any relevant input methodologies, be prescribed in any way the Commission considers appropriate (such as targets, bands, or formulas).

A price-quality path does not apply to a regulated fibre service provider until the date specified in the relevant section 170 determination.

Despite section 193(2)(b), the Commission must, in the price-quality paths for each regulatory period that starts before the reset date,—

In this section and section 195, reset date means the date declared, in an order made under section 221, to be the reset date.

This section applies when the Commission specifies, in the price-quality paths for each regulatory period that starts before the reset date (except the first regulatory period), the maximum revenues that may be recovered by a regulated fibre service.

The Commission must, in calculating the maximum revenues, apply a wash-up mechanism that provides for any over-recovery or under-recovery of revenue by the regulated fibre service provider during the previous regulatory period to be applied in a manner that is equivalent in present value terms (as calculated in the manner that the Commission thinks fit) over 1 or more future regulatory periods.

To avoid doubt, the Commission may, but is not required to, apply the wash-up mechanism referred to in subsection (2) in a price-quality path for a regulatory period that starts on or after the reset date.

This section applies when the Commission specifies maximum prices or maximum revenues for the purpose of section 193(2)(b).

The Commission must calculate the maximum price or revenue in a manner that is equivalent in present value terms (as calculated in the manner that the Commission thinks fit) over 2 or more regulatory periods (for example, by altering depreciation) if, in the Commission’s opinion, it is necessary or desirable to do so to minimise any undue financial hardship to a regulated fibre service provider or to minimise price shocks to end-users.

A regulated fibre service provider who is subject to price-quality regulation must, during the prescribed period for an anchor service, provide the anchor service—

A regulated fibre service provider who is subject to price-quality regulation must provide an anchor service if an anchor service has been declared.

The service must be provided—

A regulated fibre service provider who is subject to price-quality regulation must, during the prescribed period for a direct fibre access service, provide the direct fibre access service—

A regulated fibre service provider who is subject to price-quality regulation must provide a direct fibre access service if a direct fibre access service has been declared.

The service must be provided—

A regulated fibre service provider who is subject to price-quality regulation must, during the prescribed period for an unbundled fibre service, provide the unbundled fibre service—

A regulated fibre service provider who is subject to price-quality regulation must provide an unbundled fibre service if an unbundled fibre service has been declared.

The service must be provided—

A regulated fibre service provider who is subject to price-quality regulation must, regardless of the geographic location of the access seeker or end-user, charge the same price for providing fibre fixed line access services that are, in all material respects, the same.

Nothing in section 200 applies in relation to a trial of a fibre fixed line access service.

The provision of a service is a trial if the service—

Before the end of each regulatory period, the Commission must make a new section 170 determination specifying the price-quality paths that will apply for the following regulatory period.

In making a new section 170 determination, the Commission must consult with interested parties in relation to the requirements listed in section 193.

A price-quality path may not be reopened within a regulatory period on the grounds of a change in an input methodology, except as provided in subsection (2).

A price-quality path must be reopened by the Commission, and a new price-quality path made by amending the relevant section 170 determination in accordance with section 172, if—

When making a new price-quality path under subsection (2), the Commission must apply claw-back.

Part 2 of the Commerce Act 1986 does not apply in respect of—

Despite any undertaking entered into by a regulated fibre service provider in accordance with section 156AD(2)(c), a regulated fibre service provider is not required, on and after the implementation date, to achieve price equivalence in relation to the supply of an unbundled layer 1 service (as defined in section 156AB) if—

However, subsection (1) does not apply if the prescribed maximum price is cost-based.

A regulated service provider is not required to achieve price equivalence in relation to the supply of an unbundled layer 1 service to the extent that the service is an input to a relevant service.

This section applies—

In this section,—

The first regulatory period starts on the implementation date and lasts for a period of 3 years.

The duration of subsequent regulatory periods must be determined by the Commission and must be between 3 and 5 years.

The Commission must notify the duration of each new regulatory period in a section 170 determination.

The Commission may, before the start of each regulatory period (including the first regulatory period), review whether, and how effectively, an anchor service meets the purpose of anchor services in subsection (7).

A review must consider the following in respect of an anchor service:

The Commission must give interested persons a reasonable opportunity to give their views on the matters subject to review and the Commission must have regard to any views received.

The Commission must make a recommendation to the Minister after a review for the purposes of section 223.

The Commission must not recommend a change to the specification description of an anchor service unless the service (with the amended specification description) meets the purpose in subsection (7).

The Commission must not recommend a change to the prescribed maximum price of an anchor service unless,—

The purpose of anchor services is—

The Commission may, on or after the date that is 3 years after the implementation date and at intervals of no less than 5 years thereafter, review how effectively the regulatory provisions in sections 194, 198, and 199 meet the purpose in section 162.

A review must consider 1 or more of the following:

The Commission must give interested persons a reasonable opportunity to give their views on the matters subject to review and the Commission must have regard to any views received.

The Commission must make a recommendation to the Minister following a review for the purposes of section 221, 224, or 225 (as appropriate).

The Commission must not recommend a prescribed maximum price for an unbundled fibre service or a direct fibre access service unless the maximum price is a cost-based price.

The Commission may, at any time after the implementation date, review how 1 or more fibre fixed line access services should be are regulated under this Part if the Commission has reasonable grounds to consider that fibre fixed line access those services—

For the purposes of subsection (1), the Commission may, without limitation, describe a service under review with reference to any 1 or more of the following:

The Commission must, before the start of each regulatory period (except the first regulatory period), consider whether there are reasonable grounds to start a review.

A review may consider the following:

The Commission must give interested persons a reasonable opportunity to give their views on the matters subject to review and the Commission must have regard to any views received.

The Commission must make a recommendation to the Minister after a review.

Despite clause 1 of Schedule 3, the Commission must not commence an investigation under Schedule 3 in relation to fibre fixed line access services.

The High Court may, on application by the Commission, order any person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—

In subsection (1) and section 212, a reference to contravening an information disclosure requirement includes all or any of the following:

The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in the case of a body corporate.

In determining the amount of pecuniary penalty, the court must have regard to all relevant matters, including—

A regulated fibre service provider may not be liable to more than 1 pecuniary penalty in respect of the same conduct.

Proceedings under this section may be commenced at any time within 3 years after the contravention occurred.

The High Court may, on application by the Commission, order a regulated fibre service provider to comply with an information disclosure requirement that applies to the provider.

An order under this section must specify the date by which, or period within which, the provider must comply with the requirement.

A person commits an offence if—

A person who commits an offence under subsection (1) is liable on conviction to a fine not exceeding $200,000 in the case of an individual, or $1,000,000 in the case of a body corporate.

The High Court may, on application by the Commission, order a person to pay a pecuniary penalty to the Crown if the court is satisfied that the person—

In subsection (1) and sections 214 to 216, a reference to contravening a price-quality requirement—

The amount of pecuniary penalty must not, in respect of each act or omission, exceed $500,000 in the case of an individual, or $5,000,000 in the case of a body corporate.

In setting the amount of pecuniary penalty, the court must take into account all of the following matters:

A regulated fibre service provider may not be liable to more than 1 pecuniary penalty in respect of the same conduct.

Proceedings under this section may be commenced at any time within 3 years after the contravention occurred.

If the High Court orders a person to pay a pecuniary penalty under section 213 in respect of the contravention of a price-quality requirement, the court may, in addition, order the person to pay compensation to any person who has suffered, or is likely to suffer, loss or damage as a result of the contravention (an aggrieved person).

An application for an order under this section may be made by the Commission or any aggrieved person.

The application must be made within 1 year of the date of the pecuniary penalty order.

The court may make an order under this section whether or not any aggrieved person is party to the proceedings.

In proceedings under this section, the court may make such orders as to cost as it thinks fit.

A person commits an offence if—

A person who commits an offence under subsection (1) is liable on conviction to a fine not exceeding $200,000 in the case of an individual, or $1,000,000 in the case of a body corporate.

If the High Court is satisfied that fibre fixed line access services that are subject to price-quality regulation are being provided, or are likely to be provided, in contravention of any price-quality requirement applying with respect to those services, the court may do 1 or both of the following:

An application for an injunction or order under this section may be made by any person.

The following sections of the Commerce Act 1986 apply in relation to proceedings for pecuniary penalties under this Part:

In the exercise of its jurisdiction under this Part, except in respect of criminal proceedings and proceedings for pecuniary penalties, the High Court may receive in evidence any statement, document, or information that would not be otherwise admissible but that may in its opinion assist it to deal effectively with the matter.

For the purpose of carrying out its functions and exercising its powers under this Part, the Commission may, in addition to exercising its powers under this Act and section 98 of the Commerce Act 1986, do any of the following:

In this section, specified person means any of the following:

The Commission may, on application, exempt any person or class of persons, in respect of any information or class of information that the Commission considers to be commercially sensitive, from any obligation to make that information available to the public as part of the requirements of information disclosure regulation or price-quality regulation.

The Commission may grant the exemption on any terms and conditions that it thinks fit.

The exemption must be granted by notice in the Gazette, and takes effect from the date specified in the exemption (which must not be earlier than the date of the Gazette notice).

The Commission may, in like manner, vary or revoke any exemption.

The Commission must give public notice of the exemption.

The exemption takes effect from the date specified in the exemption (which must not be earlier than the date on which public notice is given).

The Commission’s reasons for granting an exemption (including why it is appropriate) must be published together with the exemption.

The Commission must keep a list of all current exemptions made by it under this section and must make the list available— for public inspection free of charge during normal office hours of the Commission at the offices of the Commission.

The Commission may vary or revoke an exemption in the same way as it may grant the exemption, and this section applies with all necessary modifications.

The breach of a term or condition of an exemption is a breach of the obligation to which the exemption relates.

An exemption under this section is neither a legislative instrument nor a disallowable instrument for the purposes of the Legislation Act 2012 (and does not have to be presented to the House of Representatives under section 41 of that Act).

Schedule 5 of the Commerce Act 1986 applies with any necessary modifications if the Commission wishes to incorporate material by reference in 1 or both of the following:

A regulated fibre service provider or any other person may appeal to the High Court under this subsection against any determination of the Commission under this Part, other than the following:

An appeal against a section 170 determination under subsection (1) may not include an appeal against all or part of an input methodology, whether on a point of law or any other ground.

A person may appeal to the High Court under this subsection on a question of law against any determination of the Commission under this Part (including a determination referred to in subsection (1)), except if the person has appealed, or is able to appeal, on the question of law against the determination under section 182.

An appeal under this section must be made by giving notice of appeal within 20 working days after the date of the determination appealed against or within such further time as the court may allow.

Sections 77 and 93 to 97 of the Commerce Act 1986 apply with any necessary modifications in respect of an appeal under this section.

To avoid doubt, a recommendation to the Minister by the Commission is not a determination for the purposes of this section.

The Governor-General may, by Order in Council made on the recommendation of the Minister, declare a date to be the reset date for the purpose of sections 194 and 195.

The power to make an order made under this section may be exercised only once.

The Minister must not recommend that an order be made under this section unless the Commission has, after a review under section 207, recommended that the order be made.

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations prescribing a person who provides fibre fixed line access services as being subject to 1 or both of the following:

Regulations made under this section may include the name and a description of the person.

The Minister must not recommend that regulations be made under this section unless—

In this section, a reference to a person who provides fibre fixed line access services includes a person who provides services that would be fibre fixed line access services if the person was already subject to information disclosure regulation or price-quality regulation under this Part.