Final class exemption instrument25 Aug 2020
On 25 August 2020, the ACCC issued a final class exemption instrument known as the Telecommunications (Superfast Broadband Network Class Exemption) Determination 2020.
This instrument has been made by the ACCC under subsections 143A(1) and (2) and subsection 142BD(2) of the Telecommunications Act 1997 (Cth) and exempts smaller network operators from the Part 8 separation requirements. This is designed to reduce the cost burden on smaller networks in participating in superfast broadband markets and to encourage investment in new broadband infrastructure.
Superfast broadband network class exemption determination
Notice to be bound by class exemption
Those wishing to be bound by the class exemption may elect to do so by providing a copy of the written notice attached below to telcoseparationrules@accc.gov.au.
Development and amendment history of the class exemption
On 5 June 2020, the ACCC sought feedback on a draft version of the class exemption instrument included in an accompanying consultation paper. The consultation paper and all public submissions to the consultation process are available on the ACCC’s website at: Consultation - Class exemption instrument and deemed undertakings
Following stakeholder feedback, the final class exemption instrument adds an annual reporting condition for carriers against the class exemption threshold and a mechanism to allow the threshold to increase to a maximum of 12,000 residential customers if this is specified in any regulations.
In August 2020, the ACCC made the Telecommunications (Superfast Broadband Network Class Exemption) Determination 2020.
In November 2020, the Senate Standing Committee for the Scrutiny of Delegated Legislation wrote to the Minister for Communications, Cyber Safety and the Arts expressing a concern that the class exemption was to remain in force for at least 10 years (until it sunsets under the Legislation Act 2003).
The Committee stated its longstanding view that provisions which modify or exempt persons or entities from the operation of primary legislation (as is the case with the class exemption) should cease to operate no more than three years after they commence so as to ensure a minimum degree of regular parliamentary oversight.
Following an exchange of correspondence between the Minister and the Committee, the Committee indicated it would be amenable to the class exemption being amended to specify that it ceases to operate five years after its commencement. The instrument amends the class exemption to this effect.
Copies of the correspondence exchanged between the Committee and the Minister are available from the Committee’s homepage at: Senate Standing Committee for the Scrutiny of Delegated Legislation
On 21 January 2021, the ACCC issued the Telecommunications (Superfast Broadband Network Class Exemption) Amendment Determination 2021 (No. 1). This instrument amends the class exemption such that it ceases to operate five years after its commencement.