Draft functional separation undertaking to be given to Minister
76 Draft functional separation undertaking to be given to Minister
Telstra must give the Minister a draft functional separation undertaking:
within 90 days after the first functional separation requirements determination comes into force; or
if a longer period is specified in an instrument under subclause (3)—within that longer period.
However, subclause (1) does not apply if:
the following conditions are satisfied:
an undertaking given by Telstra is in force under section 577A;
the undertaking requires Telstra to give the ACCC a draft migration plan;
in accordance with the undertaking, Telstra has given the ACCC a draft migration plan;
the ACCC has approved the draft migration plan under section 577BD, 577BDA, 577BDB or 577BDC; or
both:
an undertaking given by Telstra is in force under section 577A; and
the undertaking does not require Telstra to give the ACCC a draft migration plan.
Section 577A deals with undertakings about structural separation.
The Minister may, by writing, specify a period for the purposes of paragraph (1)(b).
The Minister must not specify a period under subclause (3) unless:
Telstra satisfies the Minister that Telstra is preparing an undertaking under section 577A; or
both:
Telstra has given the ACCC an undertaking under section 577A; and
the ACCC has not decided whether to accept the undertaking; or
the following conditions are satisfied:
Telstra has given the ACCC an undertaking under section 577A;
the ACCC has decided to accept the undertaking;
that decision is expressed to be subject to the occurrence of one or more specified events within a specified period;
the undertaking is not in force;
that period has not ended; or
the following conditions are satisfied:
an undertaking given by Telstra is in force under section 577A;
the undertaking requires Telstra to give the ACCC a draft migration plan;
Telstra satisfies the Minister that Telstra is preparing a draft migration plan to be given to the ACCC in accordance with the undertaking; or
the following conditions are satisfied:
an undertaking given by Telstra is in force under section 577A;
the undertaking requires Telstra to give the ACCC a draft migration plan;
Telstra has given the ACCC a draft migration plan in accordance with the undertaking;
the ACCC has not decided whether to approve the draft migration plan under section 577BD, 577BDA, 577BDB or 577BDC.
Section 577A deals with undertakings about structural separation.
Subsection 33(3) of the Acts Interpretation Act 1901 applies to a power conferred on the Minister by subclause (3). However, the Minister must not revoke a subclause (3) instrument.
A period specified in a subclause (3) instrument may be a period ascertained wholly or partly by reference to the occurrence of a specified event.
The Minister is not required to observe any requirements of procedural fairness in relation to the making of a subclause (3) instrument.
The Minister does not have a duty to consider whether to exercise the power to make a subclause (3) instrument, whether he or she is requested to do so by Telstra or by any other person, or in any other circumstances.
The Minister must cause a copy of an instrument under subclause (3) to be published on the Department’s website.
An instrument under subclause (3) is not a legislative instrument.
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