EXPLANATORY STATEMENT
Prepared by the Australian Communications and Media Authority
Telecommunications (Annual Carrier Licence Charge) Determination 2016
Telecommunications (Carrier Licence Charges) Act 1997
The Telecommunications (Annual Carrier Licence Charge) Determination 2016 (the Determination) is made by the Australian Communications and Media Authority (the ACMA) under subsection 14(1) of the Telecommunications (Carrier Licence Charges) Act 1997 (the Charges Act).
Legislative provisions
Under section 12 of the Charges Act an annual charge is imposed on a carrier licence that is in force at the beginning of a financial year (an annual carrier licence charge).
Subsection 14(1) of the Charges Act provides that the amount of an annual carrier licence charge imposed on a carrier licence is the amount ascertained in accordance with a written determination made by the ACMA.
Section 15 of the Charges Act limits the total of charges that may be imposed. Subsection 15(1) provides that the total of the annual carrier licence charges that are imposed on carrier licences in force at the beginning of a financial year must not exceed the sum of the amounts determined under paragraphs 15(1)(a) to (d).
Under subsection 14(1) of the Australian Communications and Media Authority Act 2005 the Minister may give written directions to the ACMA in relation to the performance of its functions and the exercise of its powers. On 26 June 2013, the then Minister for Broadband, Communications and the Digital Economy made the Australian Communications and Media Authority (Annual Carrier Licence Charge) Direction 2013 (the Ministerial Direction). The Ministerial Direction directs the ACMA to make such determinations as are necessary under subsection 14(1) of the Charges Act to have the effect of imposing an annual carrier licence charge of $0 on each carrier licence that is:
- in force at the beginning of a relevant financial year; and
- held by a carrier that was a non-participating person for the eligible revenue period immediately preceding that financial year.
The Ministerial Direction defines “relevant financial year” as the financial year that begins on 1 July 2013 and each later financial year, and “non-participating person” as having the same meaning as in the Telecommunications (Participating Persons) Determination 2013 (No.2).
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
Purpose
The purpose of the Determination is to set out a method for ascertaining the amount of annual carrier licence charge imposed on each carrier licence that was in force at the beginning of the 2015-2016 financial year, in accordance with subsection 14(1) of the Charges Act and in line with the Ministerial Direction.
Operation
The Determination applies to carrier licences that were in force at the beginning of the 2015-2016 financial year.
The Determination imposes an annual carrier licence charge of $0 on a carrier licence that was held by a carrier that was a non-participating person for the eligible revenue period that began on 1 July 2014 and ended on 30 June 2015.
The Determination sets out a method for ascertaining the amount of annual carrier licence charge for each other carrier licence that was in force at the beginning of the 2015-2016 financial year. (Further information about that method is set out below in the notes on section 7 of the Determination.)
Regulation Impact Statement
On 19 February 2014, the Office of Best Practice Regulation (OBPR) provided a standing exemption for the yearly determination of the annual carrier licence charge and the relevant costs specified by the ACMA. OBPR advised that a Regulation Impact Statement would not be required for such a regulatory proposal if the changes are minor or machinery in nature (reference number ID 2014/16581).
Consultation
Consultation was not undertaken before making the Determination. The ACMA considered that it was appropriate not to undertake consultation in the circumstances. The Determination is part of routine cost recovery arrangements. Each year the ACMA is required to make a determination of this kind in accordance with subsection 14(1) of the Act. The method set out in the Determination to calculate the annual carrier licence charge payable by each carrier for the 2015-16 financial year has not substantially changed since 2011, when it was the subject of consultation as part of a review of the ACMA’s cost recovery arrangements.
The provisions of the Determination which impose an annual carrier licence charge of $0 on certain carrier licences are in line with the Ministerial Direction.
Documents incorporated by reference
A number of expressions used in the Determination are defined in the Act. The Determination, in defining certain terms, also incorporates the Telecommunications (Consumer Protection and Service Standards) Act 1999 and the Telecommunications (Participating Persons) Determination 2015 as in force from time to time.
Notes on Sections
The provisions of the Determination are described in Attachment 1.
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 Legislation Act 2003 applies to cause a statement of compatibility with human rights to be prepared in respect of that legislative instrument.
A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out in Attachment 2.
Attachment 1
Notes on sections of the Determination
Section 1 - Name of Determination
This section names the Determination as the Telecommunications (Annual Carrier Licence Charge) Determination 2016.
Section 2 - Commencement
This section provides that the Determination commences on the later of the day after it is registered and the commencement of the Telecommunications (Specification of Costs by the ACMA) Determination 2016. Both events must occur before the Determination commences.
Section 3 - Cessation
This section states that the Determination ceases to have effect at the end of 30 June 2018 as if it had been repealed by another instrument.
Section 4 - Application
This section provides that the Determination applies to carrier licences that were in force at the beginning of the 2015-2016 financial year.
Section 5 - Definitions and other interpretation
Subsection 5(1) sets out definitions for the key terms used in the Determination. Terms such as Act, carrier licence, carrier licence charge, and exempt carrier licence are unchanged from the Telecommunications (Annual Carrier Licence Charge) Determination 2015, except to the extent that they relate to carrier licences that were in force at the beginning of the 2015-16 financial year or holders of such licences who were non-participating persons for the 2014-15 eligible revenue period.
The term eligible revenue period has the same meaning as in the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the TCPSS Act), and the term non-participating person has the same meaning as in the Telecommunications (Participating Persons) Determination 2015.
A note that the end of subsection 5(1) states that a number of other expressions used in the Determination are defined in the Act, including the following:
(a) ACMA;
(b) carrier;
(c) carrier licence.
Subsection 5(2) provides that, unless the contrary intention appears, a reference to another legislative instrument is a reference to that other instrument as in force from time to time.
Section 6 – Carrier licence charge – exempt carrier licence
This section provides that the amount of carrier licence charge imposed on an exempt carrier licence is $0, in line with the Ministerial Direction.
Section 7 – Method of ascertaining carrier licence charge – other carrier licences
This section sets out the method for ascertaining the amount of carrier licence charge imposed on a carrier licence that is not an exempt carrier licence (a relevant carrier licence).
The amount is ascertained, for a relevant carrier licence, using the following formula:
(MCA - OTC) × | ER |
TER |
Where:
- MCA (maximum charge amount) is the total sum of the amounts determined under subsection 15(1) of the Charges Act;
- OTC (other telecommunication costs) is an amount relating to costs that:
(a) are part of the proportion of the ACMA’s costs for the 2014-2015 financial year that is attributable to the ACMA’s telecommunications functions and powers; and
(b) have been recovered from telecommunications charges (other than annual carrier licence charges) or the ACMA considers are not appropriate to recover from carriers because of the nature of the activities with which the costs are associated;
- ER (eligible revenue), for the holder of the relevant carrier licence, is the eligible revenue of the holder for the 2014-2015 financial year as assessed by the ACMA under subsection 47(1) of the TCPSS Act;
- TER (total eligible revenue) is the total sum of the eligible revenue of all holders of a relevant carrier licence for the 2014-2015 financial year as assessed by the ACMA under subsection 47(1) of the TCPSS Act.
The total charge amount is calculated by subtracting the other telecommunication costs from the maximum charge amount. The total charge amount is then allocated to each holder of a relevant carrier licence in the same proportion as that holder’s eligible revenue to the total eligible revenue.
Schedule 1
Schedule 1 sets out, for each holder of a relevant carrier licence, the holder’s:
- name;
- ACN/ARBN/ABN; and
- eligible revenue for the 2014-2015 financial year as assessed by the ACMA under subsection 47(1) of the TCPSS Act.
Attachment 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications (Annual Carrier Licence Charge) Determination 2016
The Telecommunications (Annual Carrier Licence Charge) Determination 2016 (the Determination) 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 legislative instrument
Under section 12 of the Telecommunications (Carrier Licence Charges) Act 1997 (the Charges Act) an annual charge is imposed on a carrier licence that is in force at the beginning of a financial year (an annual carrier licence charge).
Subsection 14(1) of the Charges Act provides that the amount of an annual carrier licence charge imposed on a carrier licence is the amount ascertained in accordance with a written determination made by the Australian Communications and Media Authority (the ACMA).
The Determination has been made by the ACMA under subsection 14(1) of the Charges Act. It sets out the method for ascertaining the amount of annual carrier licence charge imposed on the holder of each carrier licence that was in force at the beginning of the 2015-2016 financial year.
Human rights implications
The ACMA has considered whether the Determination engages any applicable human rights or freedoms and has formed the view that it does not.
Conclusion
The Determination is compatible with human rights as it does not raise any human rights issues.
Australian Communications and Media Authority