NBN legislative framework
The regulatory framework for the National Broadband Network (NBN) is established through the National Broadband Network Companies Act 2011 (NBN Companies Act) and the Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Act 2011 (NBN Access Act) which add to the existing generic telecommunications regulatory framework.
The Acts were passed by the parliament on 28 March 2011 and received royal assent on 12 April 2011. All of the provisions are now operational.
National Broadband Network Companies Act 2011- Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Act 2011
Explanatory Memoranda for the legislation are provided on the Acts' respective bill pages, located on the Parliament of Australia website.
- National Broadband Network Companies Bill 2011
- Telecommunications Legislation Amendment (National Broadband Network Measures—Access Arrangements) Bill 2011
The Acts set out in legislation the Australian Government's policy commitment that the NBN will operate on a transparent, wholesale-only, open and non-discriminatory access basis subject to oversight by the Australian Competition and Consumer Commission (ACCC). This means the NBN will provide a platform for innovation and robust retail competition in the Australian telecommunications market. The Acts also include a number of measures to support the rollout of the NBN.
NBN Companies Act
The NBN Companies Act sets out key obligations that limit NBN Co Limited to, and focus it on, wholesale-only telecommunications.
Amongst other things, the Act:
- limits NBN Co to operating as a wholesale-only telecommunications company in terms of the services and goods it supplies, as well as the investments it makes
- limits NBN Co to supplying carriers, services providers and utilities, in which case services must be used for internal purposes only
- establishes powers for functional separation of NBN Co and for the government to require NBN Co to transfer or divest assets
- provides for the making of licence conditions about services that NBN Co can and cannot supply
- enables the making of regulations to set limits on private control of NBN Co if it is no longer wholly Commonwealth-owned
- establishes a process for the eventual sale of NBN Co
- establishes reporting obligations on NBN Co which would apply if it is no longer wholly Commonwealth-owned
- provides for exemptions from state and territory stamp duty for transactions associated with the Definitive Agreements between Telstra and NBN Co.
Ownership of NBN Co
The NBN Companies Act states that the Australian Government must retain full ownership of NBN Co until the NBN rollout is complete. This will give the government greater flexibility to pursue its objectives in the rollout of the network.
The sale of NBN Co will be subject to:
- the Communications minister making a declaration that the NBN is built and fully operational
- the Productivity Commission conducting an inquiry into and reporting on regulatory, budgetary, consumer and competition matters relating to the NBN
- a Parliamentary Joint Committee considering the findings of that report
- the Finance minister making a disallowable declaration that conditions are suitable to sell NBN Co
- parliament not disallowing that declaration.
NBN Access Act
The NBN Access Act amends the Competition and Consumer Act 2010 (CCA), the Telecommunications Act 1997 and the Freedom of Information Act 1982 (FOI Act) to provide a regulatory framework for the NBN appropriate to its unique role.
Open and non-discriminatory access
NBN Co is subject to supply, equivalence and transparency obligations that ensure it provides a platform for innovation and robust retail competition. NBN Co's access arrangements are based on the telecommunications access regime that is already in place under the CCA, meaning that the ACCC will have powers to make access determinations and binding rules of conduct in relation to NBN Co's supply of services.
Under the amendments to the CCA:
- all services provided by NBN Co are 'declared' and therefore subject to supply and non-discrimination requirements and oversight from the ACCC
- specific Standard Access Obligations apply to NBN Co that reflect its wholesale-only status
- NBN Co must publish all its service offers, to ensure there is full transparency of its terms and conditions of supply
- NBN Co must provide the ACCC with the details of access agreements that contain different terms from its published offers, and the ACCC must maintain a register of the statements of differences on its website
- NBN Co must not to discriminate in the supply of services, or in activities related to the supply of services—the only exemptions from this requirement are based on creditworthiness and failure to comply with NBN Co's terms and conditions.
An outline of how these requirements are being practically implemented is outlined below.
Non-discrimination obligations
The ACCC must publish guidance on NBN Co's non-discrimination obligations. The ACCC published this information on 19 April 2012.
Under the legislation, NBN Co can choose to publish a standard form of access agreement (SFAA) and/or give a special access undertaking (SAU) to the ACCC in relation to its terms and conditions for the supply of wholesale services. In November 2011 NBN Co published its Wholesale Broadband Agreement (WBA), as its SFAA.
Where an access agreement differs from the SFAA, NBN Co must provide a statement of the differences to the ACCC. These documents are available on the ACCC website:
SAU
On 4 April 2013, the ACCC released its draft decision on NBN Co's SAU for comment. Submissions to the ACCC's discussion paper closed on 2 May 2013
More information on the ACCC's draft decision can be found here:
The Minister for Broadband, Communications and the Digital Economy welcomed the ACCC's draft decision and the guidance it provided on the way forward. The Minister's media release can be found here:
On 28 September 2012, NBN Co lodged a revised SAU with the ACCC. On 18 December 2012, NBN Co lodged a version of the SAU to incorporate some changes made in response to commercial negotiations with its customers.
On 12 November, the ACCC released a public consultation paper on the SAU and invited comments. Written submissions to the ACCC closed on 18 January 2013. More information and submissions are available at
Authorised conduct
The NBN Access Act introduced Division 16 into Part XIB of the CCA, which authorises, for the purposes of the CCA, certain conduct by NBN Co that is reasonably necessary for it to achieve uniform national wholesale pricing. This conduct relates to refusal to interconnect other than at listed points of interconnection, the bundling of services and cross-subsidising in charging for services. These authorisations are subject to review. In addition, the requirement for both NBN Co and the ACCC to agree to any change to the list of points of interconnection expires when Communications minister declares that the NBN should be treated as built and fully operational.
Industry codes and standards for fibre infrastructure and services
The NBN Access Act also simplified the making of industry codes and standards for fibre infrastructure and services under Part 6 of the Telecommunications Act.
Freedom of information
The NBN Access Act amends the FOI Act to ensure that NBN Co is subject to that Act, with an exemption in relation to documents in respect of its commercial activities. This provision commenced on 13 June 2011.
The NBN Companies Act provides that the minister who administers the FOI Act must cause to be conducted a review of the operation of that Act so far as it relates to documents of NBN Co. On 16 April 2012, the Attorney-General announced a statutory review of the application of Freedom of Information to NBN Co. The terms of reference for the review are available from the website of the Attorney-General's Department.
- Attorney-General's media release: Review of NBN compliance with FOI
- Attorney-General's Department: Review of NBN Compliance with FOI
Parts 7 and 8 of the Telecommunications Act
The NBN Access Act also introduces Parts 7 and 8 into the Telecommunications Act. These new Parts apply to fixed-line local access networks, or parts of such networks, that are built, upgraded, altered or extended after 1 January 2011 so that they are capable of providing a carriage service where the download transmission speed is normally more than 25 megabits per second to residential or small business owners. The effect of the new Parts is that such networks must be wholesale-only and operators of such networks must offer a layer 2 bitstream service on a non-discriminatory basis. Further detail on Parts 7 and 8 is available at the following link:
