Telecommunications Act 1997

A carrier (the first carrier) must, if requested to do so by another carrier (the second carrier), give the second carrier access to an eligible underground facility owned or operated by the first carrier.

The first carrier is not required to comply with subclause (1) unless:

the access is provided for the sole purpose of enabling the second carrier to install a line used, or for use, in connection with the supply of a carriage service; and

the second carrier gives the first carrier reasonable notice that the second carrier requires the access.

The first carrier is not required to comply with subclause (1) in relation to a particular eligible underground facility if there is in force a written certificate issued by the ACCC stating that, in the ACCC’s opinion, compliance with subclause (1) in relation to that facility is not technically feasible.

In determining whether compliance with subclause (1) in relation to an eligible underground facility is technically feasible, the ACCC must have regard to:

whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the eligible underground facility; and

if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):

changing the configuration or operating parameters of the eligible underground facility; and

making alterations to the eligible underground facility; and

such other matters (if any) as the ACCC considers relevant.

Before issuing a certificate under subclause (3), the ACCC may consult the ACMA.

If the ACCC receives a request to make a decision about the issue of a certificate under subclause (3), the ACCC must use its best endeavours to make that decision within 10 business days after the request was made.

Subclause (1) does not impose an obligation to the extent (if any) to which the imposition of the obligation would have any of the following effects:

depriving any person of a right under a contract that was in force at the time the request was made;

preventing a designated Telstra successor company from complying with an undertaking in force under section 577A;

preventing Telstra from complying with an undertaking in force under section 577C or 577E;

if a final migration plan is in force—requiring a designated Telstra successor company to engage in conduct in connection with matters covered by the final migration plan.

If, at the time the request was made:

one or more provisions (the contingent provisions) of a contract have not come into force because:

the contingent provisions are subject to a condition precedent; and

the condition precedent has not been satisfied; and

there is a possibility that the condition precedent could become satisfied; and

assuming that the condition precedent had been satisfied:

the contingent provisions would come into force; and

the person would have a right under the contingent provisions;

the contract was in force; and

the person had the right under the contract.

For the purposes of subclause (1), if:

there is an agreement in force between Telstra or a designated Telstra successor company and an NBN corporation; and

the agreement relates to the NBN corporation’s access to an eligible underground facility owned or operated by Telstra or the designated Telstra successor company; and

apart from this clause, the agreement would result in the NBN corporation being the operator of the eligible underground facility;