On 31 March 2022, the ACCC received an application for authorisation from Telstra Corporation Limited (Telstra Corporation), Telstra Limited and NBN Co Limited (NBN Co) (together, the Applicants).
In June 2011, Telstra Corporation and NBN Co entered into a suite of long term agreements (the Definitive Agreements) which facilitate the rollout of the national broadband network (the NBN). The Definitive Agreements were amended in 2014 to reflect changes to the rollout of the NBN.
Conduct by Telstra Corporation, NBN Co and NBN Co’s related entities in entering into, and giving effect to, the Definitive Agreements is authorised for the purposes of section 51(1) of the Competition and Consumer Act 2010 (Cth) (the CCA) by section 577BA of the Telecommunications Act 1997 (Cth) (the Original Statutory Authorisation).
The Original Statutory Authorisation does not extend to Telstra Corporation’s related entities because at that time Telstra Corporation did not have any related entities that were required to carry out obligations under the Definitive Agreements.
The Telstra Group is undertaking a legal restructure of its organisation and the Applicants submit that in order for the Definitive Agreements to continue to operate as intended, they will require some amendments to ensure existing protections extend to the new Telstra entities. The proposed amendments are set out in a new agreement between the Applicants (the Amending Agreement). The Amending Agreement provides for:
- the extension of certain rights and obligations in the Definitive Agreements to Telstra Limited (to be renamed ServeCo), and
- the amendment and/or creation of certain rights and obligations in the Definitive Agreements to reflect the inclusion of the Telstra Limited business (to be renamed ServeCo) and related entities.
The Applicants sought authorisation under the CCA for specific provisions in the Amending Agreement. Authorisation gives them legal protection from competition laws to engage in conduct to give effect to the Amending Agreement (the Proposed Conduct).
The ACCC’s role is to assess whether the Proposed Conduct would result or be likely to result in a benefit to the public, and whether the benefit would outweigh the detriment to the public that would result or be likely to result from the Proposed Conduct. It is not the ACCC’s role in this process to authorise Telstra’s legal restructure or to authorise the entering into, and giving effect to, the Definitive Agreements (which is authorised by section 577BA of the Telecommunications Act 1997 (Cth)). However, the ACCC may consider such relevant information in its assessment of the likely public benefits and detriments of the Proposed Conduct.
On 15 September 2022, the ACCC issued a final determination granting authorisation for the Proposed Conduct until 30 June 2034.
|ACCC to Interested Parties re Draft Determination ( PDF 162.06 KB )||14 Jul 2022|
|ACCC to Interested Parties re Consultation Process ( PDF 180.49 KB )||6 Apr 2022|
Submissions - before draft decision
|Telstra Applicants’ further clarifications ( PDF 485.71 KB )||30 Jun 2022|
|Department of Infrastructure, Transport, Regional Development and Communications ( PDF 906.36 KB )||23 Jun 2022|
|NBN Co’s response to ACCC request for information ( PDF 102.48 KB )||23 May 2022|
|Amplitel's response to ACCC request for information ( PDF 275.5 KB )||17 May 2022|
|Telstra Applicants' response to ACCC request for information ( PDF 1.84 MB )||17 May 2022|
|Applicants’ response to interested party submissions ( PDF 141.66 KB )||10 May 2022|
|TPG Telecom ( PDF 81.69 KB )||29 Apr 2022|
|Australian Communications Consumer Action Network (ACCAN) ( PDF 156.26 KB )||27 Apr 2022|
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