EXPLANATORY STATEMENT

Issued by the Australian Communications and Media Authority

Datacasting Charge (Collection) Determination 2015

Broadcasting Services Act 1992

Purpose

The Australian Communications and Media Authority (the ACMA) made the Datacasting Charge (Collection) Determination 2015 (the Collection Determination) to replace the Datacasting Charge (Due and Payable) Determination 2001 (the Due Date Instrument) and the Datacasting Charge (Late Payment Penalty) Determination 2001 (the Late Payment Instrument) (together, the 2001 Determinations) without making any significant changes to the regulatory arrangements created by the 2001 Determinations.

The ACMA made the Collection Determination as the 2001 Determinations were due to be automatically repealed on 1 April 2016, in accordance with Part 6 of the Legislative Instruments Act 2003 (the LIA).

Legislative provisions

The ACMA made the Collection Determination under subclauses 51(2) and 51(3) of Schedule 4 to the Broadcasting Services Act 1992 (the Act) which refer to a charge imposed by the Datacasting Charge (Imposition) Act 1998 (the Imposition Act).

The Imposition Act imposes a charge on a transmitter licence, issued under the Radiocommunications Act 1992 (the Radcomms Act), held by a commercial television broadcasting licensee in respect of a financial year during at least part of which the transmitter was used to transmit datacasting services in digital mode under the authority of a datacasting licence issued under Schedule 6 to the Act.

The Act sets out the following payment requirements with respect to the charge:

• subclause 51(2) of Schedule 4 of the Act provides that the annual charge is due and payable at the time ascertained in accordance with a written determination made by the ACMA;
• subclause 51(3) of Schedule 4 of the Act provides that the ACMA may by written instrument, determine that if any charge payable by a person remains unpaid after the due date, the person is liable to pay a penalty to the Commonwealth;
• subclause 51(5) of Schedule 4 of the Act also provides that a determination may authorise the ACMA to make decisions about the remission of the whole or a part of an amount of late payment penalty.

The Collection Determination is a legislative instrument for the purposes of the LIA.  

Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make a legislative instrument, the power shall be construed to include a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument. The Collection Determination is made under subclauses 51(2) and 51(3) of Schedule 4 to the Act.  

Background

Under subsection 102(3) and paragraph 102(5)(a) of the Radcomms Act, a transmitter licence issued to a commercial television or community broadcaster which authorises the operation of one or more specified radiocommunications transmitters for transmitting the service in digital mode, is also taken to authorise the operation of the transmitter (or transmitters) for transmitting datacasting services in digital mode using those channels, provided the person also holds a datacasting licence issued under Schedule 6 of the Act authorising the provision of that service. 

If the person used the transmitter (or transmitters) concerned to transmit datacasting services in digital mode, section 6 of the Imposition Act imposes a charge on the transmitter licence in respect of the financial year. 

The amount of the charge is determined by reference to the formula set out in the Datacasting Charge (Amount) Determination 2015 made by the ACMA under subsection 7(1) of the Imposition Act. The Collection Determination operates in conjunction with that Determination by setting out when the charge is due and the circumstances in which a penalty for late payment of the charge will apply.

Following review of the 2001 Determinations, and consultation with external stakeholders (see below), the ACMA formed the view that the 2001 Determinations were operating effectively and efficiently, and continued to form a necessary and useful part of the legislative framework. Accordingly, the ACMA made the Collection Determination without any significant changes to the regulatory arrangements under the 2001 Determinations, in order to preserve their ongoing effect.

Operation

The Collection Determination:

• determines the due date for payment of the datacasting charge levied under the Imposition Act (subclause 51(2) of Schedule 4 to the Act);
• specifies the penalty for late payment of the datacasting charge (subclause 51(3) of Schedule 4 to the Act);
• authorises the ACMA to make decisions about the remission of the whole or part of a late payment penalty (subclause 51(5) of Schedule 4 to the Act); and
• sets out transitional provisions that apply to any charge owing that became due for payment before the commencement of the Collection Determination, and which remain wholly or partly unpaid at that commencement.

The Collection Determination largely replicates the content of the 2001 Determinations and amalgamates the provisions of those two instruments into the one Determination. The ACMA has also made some minor stylistic and drafting changes to improve the readability of the instrument and remove redundant text.

Details of the Collection Determination are set out in Attachment A.

Public Consultation

Subsection 17(1) of the LIA requires that, before the ACMA makes a legislative instrument, it must be satisfied that any consultation that the ACMA considers is appropriate and reasonably practicable to undertake, has been undertaken.

The ACMA consulted publicly between 22 October 2014 and 3 December 2014 by publishing a consultation paper on its website. The ACMA also contacted stakeholders by email about the proposal on 22 October 2014. The consultation paper explained the sunsetting process and the ACMA’s preliminary view that the existing arrangements remain relevant and should be continued in any replacement determination without significant changes. Interested parties were invited to comment.

No submissions were received during the consultation period.

Regulation Impact Statement

The ACMA determined that the existing instruments were operating efficiently and effectively, and should be remade without any significant changes. The Office of Best Practice Regulation (OBPR) has determined that the regulatory change is minor or machinery in nature and has verified that no Regulation Impact Statement is required. The OBPR reference number is 17280.

Statement of Compatibility with Human Rights

Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule maker in relation to a legislative instrument to which section 42 (disallowance) of the LIA applies to cause a statement of compatibility to be prepared in respect of that legislative instrument.

This statement has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

For the purposes of subclauses 51(2) and 51(3) of Schedule 4 to the Broadcasting Services Act 1992, the Collection Determination sets a due date for payment of the charge levied against datacasters under the Datacasting Charge (Imposition) Act 1998, specifies the penalty for late payment of the charge and authorises the ACMA to make decisions about the remission of a penalty. The Collection Determination replaces the Datacasting Charge (Due and Payable) Determination 2001 and the Datacasting Charge (Late Payment Penalty) Determination 2001, which are both due to be automatically repealed on 1 April 2016.

The ACMA has considered whether the Collection Determination engages any applicable human rights or freedoms and has formed the view that it does not. The Collection Determination does not raise any human rights issues and 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.

Attachment A

DETAILS OF THE Datacasting Charge (Collection) Determination 2015

Section 1 – Name of Determination

Section 1 provides that the name of the Determination is the Datacasting Charge (Collection) Determination 2015.

Section 2 – Commencement

Section 2 states that the Determination commences on 1 April 2015.

Section 3 – Revocation of the Datacasting Charge (Due and Payable) Determination 2001

Section 3 has the effect of revoking the Datacasting Charge (Due and Payable) Determination 2001.

Section 4 – Revocation of the Datacasting Charge (Late Payment Penalty) Determination 2001

Section 4 has the effect of revoking the Datacasting Charge (Late Payment Penalty) Determination 2001.

Section 5 – Definitions

Section 5 defines a number of key terms used in the Determination. The definitions derive principally from the Broadcasting Services Act 1992 (the Act), the Radiocommunications Act 1992 and the Datacasting Charge (Imposition Act) 1998 with the exception of the term “charge calculation period” which refers to the Television Licence Fees Act 1964  (the Fees Act). The “charge calculation period” is the same 12 month period used by a licensee to calculate its gross earnings for the purposes of section 6 of the Fees Act.

Section 6 – When charge due and payable

Section 6 gives effect to subsection 51(2) of Schedule 4 to the Act by providing that a licensee must pay a charge on each 31 December that occurs after the end of the charge calculation period.

Section 7 - Late payment penalty

Section 7 gives effect to subsection 51(3) of Schedule 4 to the Act and specifies the penalty that is due and payable by a licensee on an amount of charge that remains unpaid after the due date, that is, 31 December each year. Subsection 7(1) specifies the late payment penalty rate as 20% per annum on the unpaid amount, worked out from the due date, unless subsection 7(2) or 7(3) applies in relation to the amount unpaid.

Subsection 7(2) deals with the situation where a licensee is given a notice by the ACMA under paragraph 5(2)(f) of the Broadcasting Services (Datacasting Charge) Regulations 2001 (the Regulations) specifying an amount unpaid and that amount remains unpaid 21 days after the notice was issued. In that situation, the penalty due and payable by the licensee is 20% on the unpaid amount from the day the notice was issued.

Subsection 7(3) deals with the situation where a licensee is given a notice by the ACMA under the Regulations specifying an amount unpaid and the unpaid amount is paid within 21 days after the notice was issued. In that situation, no penalty is due and payable by the licensee on the unpaid amount.

Under paragraphs 7(2)(b) and 7(3)(b), subsections 7(2) and 7(3) do not apply where the notice given to the licensee by the ACMA under paragraph 5(2)(f) of the Regulations contains a statement that the ACMA is satisfied that, in informing the ACMA of the manner of working out the amount of the charge, the licensee deliberately miscalculated the amount of the charge.

 Section 8 - Remission of penalty

Section 8 gives effect to subsection 51(5) of Schedule 4 to the Act by setting out the circumstances in which the ACMA may decide to remit the whole or part of a late payment penalty which is either due and payable or which has been paid. If the ACMA is satisfied that the circumstances in paragraphs 8(1)(a), (b) or (c) exist, the ACMA may decide to remit the whole or part of the penalty. Under subsection 8(2), if the ACMA does so and the licensee has paid an amount of that penalty, then the ACMA must arrange for the remitted amount to be refunded to the licensee within 21 days after remitting that penalty or part of that penalty.

Subsection 8(3) provides that, notwithstanding subsections 7(1) and (2) of the Determination, an amount of unpaid charge may be recovered immediately after the due date in a court of competent jurisdiction as a debt due to the Commonwealth.

Subsection 8(4) deals with the situation where judgment is entered or given, interest is payable on the judgment debt and a late payment penalty is payable under subsections 7(1) and (2). In that circumstance, the amount of late payment penalty that would otherwise have been payable will be reduced by the amount of interest payable on the judgment debt.

Subsection 8(5) deals with the situation where judgment is entered or given for payment of an amount that includes an amount of unpaid charge, interest is payable on the judgment debt and a late payment penalty is payable under subsections 7(1) and (2). In that case, the amount of late payment penalty that would otherwise have been payable will be reduced according to the formula set out in subsection 8(5). 

Section 9 - Transitional provisions

Section 9 sets out transitional provisions that apply if a charge became due for payment before the Collection Determination commenced and remained wholly or partly unpaid on the commencement day. In that case, any applicable late payment penalty and any application for remission of such a penalty will be determined in accordance with the Datacasting Charge (Late Payment Penalty) Determination 2001.