EXPLANATORY STATEMENT
Issued by the authority of the Minister for Communications
Telecommunications Act 1997
Carrier Licence Conditions (Optus Networks Pty Ltd) Instrument of Revocation 2014
Legislative authority
Subsection 63(2) of the Telecommunications Act 1997 (the Act) provides that the Minister may declare that a particular carrier is subject to licence conditions.
Subsection 63(6) of the Act enables the Minister, by written instrument, to revoke an instrument under subsection 63(2) of the Act. Subsection 63(13) of the Act provides that an instrument under subsection 63(6) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
Purpose
The purpose of the Carrier Licence Conditions (Optus Networks Pty Ltd) Instrument of Revocation 2014 (the Revocation Instrument) is to revoke the Carrier Licence Conditions (Optus Networks Pty Ltd) Declaration 1997 (Optus Networks Declaration) as currently in force.
Background
Optus Networks Pty Limited is currently subject to two classes of carrier licence conditions: standard licence conditions under the Act; and the specific licence conditions under the Optus Networks Declaration.
The Optus Networks Declaration came into force on 1 July 1997. It imposed specific carrier licence conditions upon Optus Networks Pty Ltd: industry development plans (clauses 5(a) & 5(b)); network rollout (clause 6); provision of carriage services to certain users (clause 7); the operation of AUSSAT B-series satellite facilities (clause 8); and foreign ownership and control (clause 9). The licence condition under clause 9 was removed on 18 December 1997 by the Carrier Licence Conditions (Optus Networks Pty Ltd) Declaration 1997 (Amendment No. 1 of 1997) as it was no longer required.
The remaining five carrier licence conditions under the Optus Networks Declaration (as noted below), are no longer required and therefore, the Optus Networks Declaration is being revoked in its entirety.
Subclause 5(a) of the Optus Networks Declaration required Optus Networks to give a current industry development plan (as defined in clause 3) to the Minister for Industry, Science and Tourism and obtain his or her approval of the plan within 90 days after 1 July 1997. As this carrier licence condition has been met, subclause 5(a) is spent.
Subclause 5(b) of the Optus Networks Declaration required Optus Networks to comply with clauses 8, 9, 10, 11, 12, 13 and 14 of Schedule 1 to the Act as if the plan were an industry development plan made under Part 2 of Schedule 1 to the Act. The Productivity Commission report “Telecommunications Competition Regulation”, Report No. 16, 21 September 2001, found that there was no compelling argument for continuing with the operation of industry development plans and recommended that the legal requirement for industry development plans be repealed. Schedule 1 to the Telecommunications Legislation Amendment (Competition and Consumer Issues) Act 2005 repealed Part 2 of Schedule 1 to the Act, thereby removing the requirement for carriers to have industry development plans. Accordingly, the carrier licence condition imposed upon Optus Networks under subclause 5(b) is redundant.
Clause 6 required Optus Networks to have offered, and be able to supply between 1 July and 30 December 1997 to the extent technically practicable, domestic and international long distance services to everyone in Australia supplied with a standard telephone service by itself or the universal service provider. This carrier licence condition was satisfied fully; therefore subclause 6 is spent.
Clause 7 obliged Optus Networks to provide carriage services through satellite-based facilities or equivalent services for certain users (being the Australian Broadcasting Corporation, for its Homestead and Community Broadcasting Satellite Service; suppliers of remote broadcasting services including the Special Broadcasting Service’s national broadcasting services intended for reception in remote areas, and commercial television and radio broadcasting services for specified remote licence areas; the Department of Defence; the Civil Aviation Safety Authority; and Airservices Australia). This obligation reflected the obligation contained in clause 4 of the carrier licence held by Optus Networks (Licence to operate as a general telecommunications carrier, granted to AUSSAT Pty Ltd on 22 November 1991) and it was intended that the obligation for Optus Networks to service these groups was required only for the expected life-span of the B-series satellites. The obligations imposed by clause 7 ceased on 1 January 2005 and as such, clause 7 is redundant.
Clause 8 requires Optus Networks to control the telemetry of the AUSSAT B-series satellites from earth stations on Australian territory. As noted above, the life-spans of the AUSSAT-B series satellites were not expected to extend beyond 2005, in which case the clause would be spent. However, one AUSSAT-B series satellite, “B3”, remains, is now in inclined orbit and approaching its end-of-life. “B3” is no longer used for its primary purpose of providing broadcast communications services or other public interest services identified in clause 7, which the clause 8 obligation was designed to support. The government is satisfied that appropriate arrangements are in place regarding telemetry of “B3” and the licence condition is unnecessary. For these reasons it has decided to revoke the clause as a deregulatory measure.
Consultation
Section 64 of the Act provides that before making an instrument under subsection 63(6) of the Act, the Minister must arrange for a draft version of the instrument to be provided to the licence holder and invite the holder to make a submission to the Minister on the draft. Consistent with this requirement, the Minister formally wrote to Optus on 13 February 2014 proposing to amend the Optus Networks Declaration by revoking the licence conditions pertaining to clauses 4, 5, 6 and 7.
Optus replied to the Minister on 18 February 2014 stating its support for the proposed amendments and proposing the Minister go further and also revoke clause 8, noting that removal of this condition would enable the Optus Networks Declaration to be revoked in its entirety. Optus was subsequently formally consulted on 17 March 2014 regarding the proposed removal of the AUSSAT Satellite B-series licence condition under clause 8, together with the Australian Communications and Media Authority, the Commonwealth Attorney-General’s Department and the Department of Defence. Optus replied to the Minister on 18 March 2014 stating its support for revocation of the Optus Networks Declaration.
The Office of Best Practice Regulation has advised that a regulatory impact statement is not required for the Revocation Instrument.
Other details
The Revocation Instrument is a legislative instrument for the purposes of the Legislative Instruments Act 2003 and shall commence on the day after it is registered in the Federal Register of Legislative Instruments.
The Statement of Compatibility with Human Rights for this Revocation Instrument is set out in Attachment 1.
Details of the accompanying Revocation Instrument are set out in Attachment 2.
Attachment 1
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Carrier Licence Conditions (Optus Networks Pty Ltd) Instrument of Revocation 2014
The Carrier Licence Conditions (Optus Networks Pty Ltd) Instrument of Revocation 2014 (the Revocation Instrument) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Revocation Instrument
Optus Networks Pty Limited (Optus Networks) is currently subject to two classes of carrier licence conditions: standard licence conditions under the Telecommunications Act 1997 (the Act); and the specific licence conditions under the Carrier Licence Conditions (Optus Networks Pty Ltd) Declaration 1997 (Optus Networks Declaration). In respect of the latter, there are five specific licence conditions (described below) which are no longer required, thereby justifying the revocation of the Optus Networks Declaration in its entirety.
Subclause 5(a) of the Optus Networks Declaration required Optus Networks to give a current industry development plan (as defined in clause 3) to the Minister for Industry, Science and Tourism and obtain his or her approval of the plan within 90 days after 1 July 1997. As this carrier licence condition has been met, subclause 5(a) is spent.
Subclause 5(b) of the Optus Networks Declaration required Optus Networks to comply with clauses 8, 9, 10, 11, 12, 13 and 14 of Schedule 1 to the Act as if the plan were an industry development plan made under Part 2 of Schedule 1 to the Act. Part 2 of Schedule 1 was repealed by the Telecommunications Legislation Amendment (Competition and Consumer Issues) Act 2005. Accordingly, the carrier licence condition imposed upon Optus Networks under subclause 5(b) is redundant.
Clause 6 required Optus Networks to have offered, and be able to supply between 1 July and 30 December 1997 to the extent technically practicable, domestic and international long distance services to everyone in Australia supplied with a standard telephone service by itself or the universal service provider. This carrier licence condition was satisfied fully; therefore subclause 6 is spent.
Clause 7 required Optus Networks to provide carriage services through satellite-based facilities or equivalent services for certain users. This obligation reflected the obligation contained in clause 4 of the carrier licence held by Optus Networks (Licence to operate as a general telecommunications carrier, granted to AUSSAT Pty Ltd on 22 November 1991). The obligations imposed by clause 7 ceased on 1 January 2005.
Clause 8 requires Optus to control the telemetry of the AUSSAT B-series satellites from earth stations on Australian territory. As the last of these satellites is near end-of-life and appropriate alternative arrangements are in place for its telemetry this clause is redundant.
The effect of the Revocation Instrument is that the above five specific carrier licence conditions applying to Optus Networks are removed. Notwithstanding this, Optus Networks continues to be subject to the standard carrier licence conditions under the Act.
Human rights implications
The Revocation Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Revocation Instrument is compatible with human rights as it does not raise any human rights issues.
Attachment 2
Details of the Carrier Licence Conditions (Optus Networks Pty Ltd) Instrument of Revocation 2014
Section 1 – Name of instrument
Section 1 provides that the title of the Instrument is the Carrier Licence Conditions (Optus Networks Pty Ltd) Instrument of Revocation 2014.
Section 2 – Commencement
Section 2 provides that the Carrier Licence Conditions (Optus Networks Pty Ltd) Instrument of Revocation 2014 commences on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 –Revocation
Section 3 of the Revocation Instrument provides that the Carrier Licence Conditions (Optus Networks Pty Ltd) Declaration 1997 (Optus Networks Declaration) is revoked.
Section 4 – Expiry
Once the Revocation Instrument comes into effect, it will have fulfilled its purpose (i.e. revoked the Original Declaration). Therefore, the Revocation Instrument itself can be removed from the Federal Register of Legislative Instruments. Accordingly, a self-expiry provision has been included at clause 4.