Telecommunications (Carrier Licence Exemption) Determination No. 1 of 2001 (Amendment No. 1 of 2005)

Administered by Department of Communications and the Arts

Legislation au F2005L01704 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Telecommunications Act 1997

 

Telecommunications (Carrier Licence Exemption) Determination No. 1 of 2001

(Amendment No. 1 of 2005)

 

 

Issued by the authority of the Minister for Communications,

Information Technology and the Arts

 

Background

 

The Telecommunications Act 1997 (the Act) provides for the regulation of telecommunications services, including the operation of network units used to supply a carriage service to the public.  Division 2 of Part 3 of the Act creates offences for a person to supply a carriage service to the public unless that person is the holder of a carrier licence, a nominated carrier declaration is in force (whereby another carrier becomes responsible for the person’s network units), or an exemption under the Act applies.

 

Under section 42 of the Act a person is required to hold a carrier licence if:

 

(a)   that person is an owner or a part-owner of a “network unit” (ie a line link, designated radiocommunications facility or some other facility determined by the Minister); and

(b)   that “network unit” is used to supply a carriage service to the public.

 

Paragraph 51(1)(c) of the Act provides that the Minister for Communications, Information Technology and the Arts may determine by written instrument that section 42 of the Act does not apply in relation to a specified use of a network unit.  The Telecommunications (Carrier Licence Exemption) Determination No. 1 of 2001 (the original Determination) was made on 4 January 2001 in reliance on this provision.  The original Determination clarifies the requirements associated with obtaining a datacasting licence by exempting datacasting licence holders from the requirement to obtain a carrier licence.  This is because the specific exemptions in the Act that apply to broadcasting services (and ancillary services) do not apply to datacasting services provided on their own, including the services provided as part of the datacasting trial underway in Sydney, and it is also likely that they do not apply to a digital datacasting service that is multiplexed within a broadcasting service. The original Determination is expressed to cease on 30 June 2005.

 

Purpose

 

The purpose of the Telecommunications (Carrier Licence Exemption) Determination No. 1 of 2001 (Amendment No. 1 of 2005) (the Determination) is to extend the operation of the original Determination until 31 December 2006.   

 

It is necessary to extend the operation of the original Determination until 31 December 2006 because the reasons for making the original Determination remain unchanged, pending the outcome of decisions which may affect the provision of datacasting services after 2006.

 

The explanatory statement to the original Determination noted that:

 

While a holder of a datacasting licence may, under certain circumstances, meet the criteria for the requirement to obtain a telecommunications carrier licence it is not yet apparent that it is appropriate that they be regulated as a provider of a carriage service.  Until permanent datacasting operations commence it is difficult to know what type of services will be offered.  Furthermore, it is less clear that datacasting services which closely resemble free-to-air broadcasting services will give rise to potential carrier status.

 

Although datacasting services are currently being trialled and some broadcasters have provided services under a datacasting licence, permanent datacasting operations have not yet commenced. It therefore remains unclear as to whether the holder of a datacasting licence should be regulated as a provider of carriage services.

 

The accompanying Determination extends the operation of the original Determination until 31 December 2006.  This date reflects the end of the moratorium on the issue of new commercial television broadcasting licences as provided by the Broadcasting Services Act 1992.  The arrangements to apply after 31 December 2006 are currently the subject of a statutory review which is also relevant to the regulation of datacasting services beyond that date.  The need to continue the exemption beyond 31 December 2006 will be a matter for consideration in the context of the broader decisions that are part of this review.  

 

Consultation

 

Subsection 33(3) of the Acts Interpretation Act 1901 has the effect that the Minister’s power to make a determination under paragraph 51(1)(c) of the Act includes a power to amend a determination made under that paragraph, provided that this power is exercised in the like manner and subject to same conditions as the power in paragraph 51(1)(c). As a consequence of the commencement of the Legislative Instruments Act 2003 (LIA) and the repeal of section 46A of the Acts Interpretation Act 1901 on 1 January 2005, a determination made under paragraph 51(1)(c) of the Act  is a legislative instrument for the purposes of the LIA (see LIA s.6(1)(d)).  This means that the accompanying Determination is also a legislative instrument for the purposes of the LIA must therefore be tabled in the Parliament and is subject to Parliamentary disallowance. 

 

Consultation on the accompanying Determination was considered unnecessary due to its minor and machinery nature (see paragraph 18(2)(a) of the LIA).

 

Details of the accompanying Determination are provided in the Attachment.

 

 


ATTACHMENT

Clause 1 - Name of Determination

Clause 1 provides that the accompanying Determination is the Telecommunications (Carrier Licence Exemption) Determination No. 1 of 2001 (Amendment No. 1 of 2005).

Clause 2 - Commencement

Clause 2 provides that the accompanying Determination commences on the day after it is registered on the Federal Register of Legislative Instruments.

 

Clause 3 – Amendment of the Telecommunications (Carrier Licence Exemption) Determination No. 1 of 2001

 

Clause 3 provides that Schedule 1 to the accompanying Determination amends the Telecommunications (Carrier Licence Exemption) Determination No. 1 of 2001.  

 

Schedule 1 – Amendment

 

Item 1 of Schedule 1 to the accompanying Determination replaces clause 3 of the original Determination with new clause 3.  New clause 3 extends the operation of the original Determination until 31 December 2006.

 

 

Overview

The Telecommunications (Carrier Licence Exemption) Determination No. 1 of 2001 (Amendment No. 1 of 2005) extends the exemption for datacasting licence holders from the requirement to obtain a carrier licence under the Telecommunications Act 1997. Enacted by the Minister for Communications, Information Technology and the Arts, this legislation responds to the ongoing uncertainty regarding the regulation of datacasting services as permanent operations have yet to commence. The original determination, made in 2001, exempted datacasting services from the need for a carrier licence due to the unclear nature of these services and their similarity to free-to-air broadcasting services. This amendment prolongs the exemption until 31 December 2006, aligning with the end of the moratorium on new commercial television broadcasting licences, while also considering the outcomes of a statutory review pertinent to datacasting services. The decision to extend the exemption is based on the ongoing trial of datacasting services and the necessity to monitor the evolving landscape before imposing carrier licensing requirements.

Scope and Application

The Telecommunications (Carrier Licence Exemption) Determination No. 1 of 2001 (Amendment No. 1 of 2005) extends the exemption of datacasting licence holders from the requirement to obtain a carrier licence under the Telecommunications Act 1997 until 31 December 2006. This determination applies to any person or entity that is the holder of a datacasting licence and operates network units to supply a carriage service to the public, ensuring they do not need a carrier licence during the specified period. The exemption is geographically applicable across Australia, reflecting the national scope of the telecommunications regulation under the Act. The exemption is limited to the specified use of network units for datacasting services, and does not extend to other types of carriage services unless otherwise specified in subordinate instruments. The decision to exempt datacasting licence holders from the carrier licence requirement is made to allow more time to understand the nature and regulation of datacasting services, particularly in light of the ongoing trial and the uncertain future of permanent datacasting operations. The exemption is subject to review and may be further amended or revoked by the Minister for Communications, Information Technology and the Arts in accordance with the legislative requirements.

Key Provisions

The Telecommunications (Carrier Licence Exemption) Determination No. 1 of 2001 (Amendment No. 1 of 2005) amends the Telecommunications (Carrier Licence Exemption) Determination No. 1 of 2001, extending the exemption period for datacasting licence holders from the requirement to obtain a carrier licence until 31 December 2006. This amendment was made under the authority of section 51(1)(c) of the Telecommunications Act 1997, which allows the Minister for Communications, Information Technology and the Arts to exempt certain uses of network units from the general requirement to hold a carrier licence. This exemption applies to datacasting services, which are not yet fully operational, and the extension aims to maintain the status quo until the regulatory framework for such services is better defined. Entities holding datacasting licences are thereby relieved from the obligation to obtain a carrier licence for the specified period, provided they comply with the terms and conditions set out in the amended determination. This exemption is crucial for entities involved in datacasting trials or services, as it allows them to operate without the immediate burden of carrier licensing, which could potentially stifle innovation and development in this emerging field. The determination ensures that the exemption continues to apply until a definitive regulatory approach is established, likely influenced by the outcomes of ongoing reviews and the cessation of the moratorium on new commercial television broadcasting licences. Failure to comply with the provisions of the Telecommunications Act 1997, including the amended exemption determination, could result in significant legal consequences. Under section 135 of the Act, a person who contravenes the Act may be liable to penalties. For example, if a datacasting licence holder fails to adhere to the exemption terms and operates without the required carrier licence, they could face substantial fines. The exact penalties can vary depending on the nature and severity of the breach, but they may include significant financial penalties as well as potential civil or criminal liability. These consequences underscore the importance of adhering to the legislative requirements and the potential repercussions of non-compliance. The determination also includes provisions for its registration and commencement, which are critical for its legal effect. According to Clause 2 of the amended determination, it commences on the day after it is registered on the Federal Register of Legislative Instruments. This registration is a formal step that ensures the determination is officially recognized and enforceable within the legal framework. Additionally, as a legislative instrument under the Legislative Instruments Act 2003, the determination is subject to potential disallowance by Parliament, highlighting the legislative oversight and scrutiny that accompanies such amendments.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.