EXPLANATORY STATEMENT

Issued by the authority of the Minister for Communications

Telecommunications Act 1997

Carrier Licence Conditions (Vodafone Pty Limited) Declaration 1997               Instrument of Revocation 2014

Legislative authority  

Subsection 63(6) of Telecommunications Act 1997 (the Act) allows the Minister, by written instrument, to revoke a declaration made under subsection 63(1) 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 (Vodafone Pty Limited) Declaration 1997 Instrument of Revocation 2014 (the Revocation Instrument) is to revoke the Carrier Licence Conditions (Vodafone Pty Limited) Declaration 1997 (the Vodafone Declaration) as currently in force.

Background

Vodafone Australia 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 Carrier Licence Conditions (Vodafone Pty Limited) Declaration 1997.

The Vodafone Declaration, in its original form, came into force on 1 July 1997. It imposed three specific carrier licence conditions upon Vodafone Pty Limited: two relating to industry development plans (clause 5); one other relating to majority Australian ownership (clause 6).  The condition under clause 6 was removed on 18 December 1997 by the Carrier Licence Conditions (Vodafone Pty Limited) Declaration 1997 (Amendment No. 1 of 1997) as it was no longer required. 

The remaining two carrier licence conditions under the Vodafone Declaration (as noted below) are no longer required and therefore, the Vodafone Declaration is being revoked in its entirety.

Subclause 5(a) of the Vodafone Declaration required Vodafone 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 now spent.

Subclause 5(b) of the Vodafone Declaration required Vodafone 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 Telecommunications Act, thereby removing the requirement for carriers to have industry development plans. Accordingly, the carrier licence condition imposed upon Vodafone under subclause 5(b) is redundant.

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 Vodafone on 13 February 2014 regarding the proposed revocation of the Vodafone Declaration.  Vodafone replied to the Minister on 14 February 2014 stating its support for the proposed revocation.

The Office of Best Practice Regulation has advised that a regulatory impact statement is not required for this 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.

Notwithstanding the revocation of the Vodafone Declaration, Vodafone, as a carrier under the Act, continues to be subject to the standard carrier licence conditions under the Act.

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 (Vodafone Pty Limited) Declaration 1997               Instrument of Revocation 2014

The Carrier Licence Conditions (Vodafone Pty Limited) Declaration 1997 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

Vodafone Australian Pty Limited (Vodafone) 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 (Vodafone Pty Limited) Declaration 1997 (Vodafone Declaration). In respect of the latter, there are two specific licence conditions relating to industry development plans (described below) which are no longer required, thereby justifying the revocation of the Vodafone Declaration in its entirety.

Subclause 5(a) of the Vodafone Declaration required Vodafone 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 Vodafone Declaration required Vodafone 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 Vodafone under subclause 5(b) is redundant.

The effect of the Revocation Instrument is that these two specific carrier licence conditions applying to Vodafone are removed. Notwithstanding this, Vodafone 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 (Vodafone Pty Limited) Declaration 1997Instrument of Revocation 2014

Section 1 – Name of instrument

Section 1 provides that the title of the Instrument is the Carrier Licence Conditions (Vodafone Pty Limited) Declaration 1997 Instrument of Revocation 2014.

Section 2 – Commencement

Section 2 provides that the Carrier Licence Conditions (Vodafone Pty Limited) Declaration 1997 Instrument of Revocation 2014 (Revocation Instrument) commences on the day after it is registered on the Federal Register of Legislative Instruments.

Section 3 – Revocation

Section 3 provides for the revocation of the Carrier Licence Conditions (Vodafone Pty Limited) Declaration 1997 (Vodafone Declaration). Notwithstanding the revocation of the Vodafone Declaration, Vodafone, as a carrier, continues to be subject to the standard carrier licence conditions under the Act.

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.