Determination under subsection 23(2), No. 1 of 1998
as amended
made under subsection 23(2) of the
Telecommunications Act 1997
This compilation was prepared on 13 September 2012
taking into account amendments up to Determination under subsection 23(2) (No. 1) 1998 (Amendment No. 1 of 2012)
Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra
I, RICHARD KENNETH ROBERT ALSTON, Minister for Communications, the Information Economy and the Arts, under subsection 23(2) of the Telecommunications Act 1997 (‘the Act’), determine that for the purposes of paragraph 23(1)(n) of the Act, a person’s immediate circle includes the following persons:
(1) if the person is engaged in a specified joint venture with another person –
(a) that other person; and
(b) any other person who, because of section 23 of the Act or this determination, is part of that other person’s immediate circle;
where the person mentioned in paragraphs (a) and (b) is being supplied with carriage services for purposes of, or incidental to, the activities of the specified joint venture; and
(2) if the person has engaged another person as a specified contractor –
(a) that other person; and
(b) any person who, because of section 23 of the Act or this determination, is part of that other person’s immediate circle;
where the person mentioned in paragraphs (a) and (b) is being supplied with carriage services for purposes of, or incidental to, work covered by the contract between the person and the specified contractor.
For the purposes of this determination:
Specified joint venture means an association of two or more persons, natural or corporate, who agree by contract to engage in a common undertaking for profit or product by combining their respective resources, where the following activities are not the common undertaking, and are no more than incidental to the common undertaking:
(a) the supply of carriage services; and
(b) the supply of a content service using a carriage service.
Specified contractor means a contractor engaged under a contract to a person where the following activities are not the subject of the contract and are no more than incidental to the contract:
(a) the supply of carriage services; and
(b) the supply of a content service using a carriage service.
Notes to the Determination under subsection 23(2), No. 1 of 1998
Note 1
The Determination under subsection 23(2), No. 1 of 1998 (in force under subsection 23(2) of the Telecommunications Act 1997) as shown in this compilation is amended as indicated in the Tables below.
Table of Instruments
Title | Date of Making / FRLI registration | Date of
commencement | Application, saving or
transitional provisions |
Determination under subsection 23(2), No. 1 of 1998 | 21 Aug 1998 (see F2004B00441) | 21 Aug 1998 | |
Determination under subsection 23(2) (No. 1) 1998 (Amendment No. 1 of 2012) | 12 Sept 2012 (see F2012L01864) | 13 Sept 2012 | — |
Table of Amendments
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted |
Provision affected | How affected |
Definition of Specified
Joint venture | am. 2012 No. 1 |
|
Overview
The Determination under subsection 23(2), No. 1 of 1998 made under the Telecommunications Act 1997 was introduced to clarify the scope of a person's immediate circle in relation to carriage services and content services supplied through such services. This legislative instrument, prepared by the Office of Legislative Drafting and Publishing in the Attorney-General’s Department, was issued by the Minister for Communications, the Information Economy and the Arts, Richard Kenneth Robert Alston. The determination aims to specify which individuals are considered part of a person's immediate circle when engaging in joint ventures or employing contractors, particularly where the supply of carriage services is incidental to the main activities. This legislative instrument was made on 21 August 1998 and subsequently amended on 12 September 2012 to update the definition of a "Specified Joint Venture" and ensure that the legislation remains current with technological and business practice changes.
Scope and Application
This legislative instrument, which is a determination under the Telecommunications Act 1997, applies to persons engaged in specified joint ventures and those who have engaged specified contractors, defining who is included in a person's immediate circle for the purposes of the Act. Specifically, if an individual is part of a specified joint venture, their immediate circle includes the other person in the joint venture and any person who is part of that other person's immediate circle. Similarly, if an individual has engaged another person as a specified contractor, their immediate circle includes that contractor and any person who is part of that contractor's immediate circle. This determination is made for the purposes of paragraph 23(1)(n) of the Act and applies to situations where carriage services are being supplied for purposes of, or incidental to, the joint venture or the work covered by the contract. The determination has a national jurisdictional reach, applying across Australia as it is made under the Commonwealth's authority. The instrument has been amended to reflect changes as of 13 September 2012, but there are no stated exclusions, exemptions, or thresholds within the text provided.
Key Provisions
The Determination under subsection 23(2), No. 1 of 1998, made under the Telecommunications Act 1997, outlines the individuals who are considered part of a person's immediate circle for the purposes of paragraph 23(1)(n) of the Act. According to section 1(1) of the determination, if a person is engaged in a specified joint venture with another, the other person and any other individual who is part of that person’s immediate circle because of section 23 of the Act or this determination are included in the immediate circle, provided they are supplied with carriage services for purposes of, or incidental to, the activities of the joint venture. Similarly, section 1(2) of the determination states that if a person has engaged another as a specified contractor, that contractor and any person who is part of that contractor’s immediate circle because of section 23 of the Act or this determination are included, provided they are supplied with carriage services for purposes of, or incidental to, work covered by the contract.
The determination imposes specific obligations on those included within a person's immediate circle, requiring them to adhere to the terms and conditions set forth in the joint venture or contractor agreements. These obligations typically involve ensuring that carriage services are supplied in accordance with the agreements and are used only for purposes directly related to the joint venture or contractual work. The obligations also include maintaining confidentiality and ensuring compliance with any applicable telecommunications laws and regulations.
Breaches of the obligations outlined in the determination may result in civil or criminal consequences. For instance, supplying carriage services for purposes not covered by the joint venture or contractual agreement could be considered a breach. The potential penalties for such breaches can include fines and, in more severe cases, imprisonment. The specific maximum penalties are not detailed in the determination itself but would be governed by the overarching provisions of the Telecommunications Act 1997 and any relevant subsidiary legislation or common law principles.