REPLACEMENT EXPLANATORY STATEMENT
This Explanatory Statement replaces the Explanatory Statement registered on 12 March 2019 for the Telecommunications (Carrier Licence Exemption – Supply of Carriage Services to Visitors) Determination 2019 [F2019L00318] to respond to suggestions from the Senate Standing Committee for the Scrutiny of Delegated Legislation.
Telecommunications Act 1997
Telecommunications (Carrier Licence Exemption – Supply of Carriage Services to Visitors) Determination 2019
Authority
The Telecommunications (Carrier Licence Exemption – Supply of Carriage Services to Visitors) Determination 2019 (the Determination) is made by the Minister for Communications and the Arts under paragraph 51(1)(c) of the Telecommunications Act 1997 (the Tel Act).
Subsection 33(3) of the Acts Interpretation Act 1901 relevantly provides that where an Act confers a power to make an instrument of a legislative character, the power shall be construed as including a power exercisable in like manner and subject to the like conditions to repeal any such instrument. This instrument is a legislative instrument for the purposes of section 8 of the Legislation Act 2003.
Purpose and operation
The Determination repeals and remakes the Determination under subsection 51(1), No.2 of 1998, which is due to sunset on 1 April 2019. The 1998 Determination was operating effectively, and is remade in substantially the same form.
Section 51(1) of the Tel Act provides flexibility to the regulatory framework by allowing exemptions from carrier licence obligations to be made. Business models and technology in the telecommunications industry are rapidly changing, and the use of Ministerial determinations under the Act continues to be an appropriate mechanism to deal with carrier licensing matters.
Section 42 of the Tel Act prohibits the owner of a network unit from using the unit to supply a carriage service to the public without a carrier licence or a nominated carrier declaration being in force in relation to the unit. Section 44 of the Tel Act in effect provides that a network unit is being used to supply carriage services to the public if an end-user is outside the network unit owner’s immediate circle. Section 23 of the Tel Act sets out those who are considered to be part of a network unit owner's immediate circle. Visitors using a network unit do not form part of a network unit owner’s ‘immediate circle’. Paragraph 51(1)(c) of the Tel Act provides that the Minister may determine that section 42 does not apply in relation to the specified use of a network unit.
Therefore, in the absence of this Determination, suppliers of carriage services to visitors would be supplying carriage services to the public, and would require a carrier licence. However, to require a carrier licence when a network unit owner is supplying a carriage service to a visitor on a not-for-profit basis would create an unnecessary regulatory burden.
Therefore, the Determination provides that section 42 of the Tel Act does not apply where a network unit is being used to supply a carriage service, on a not-for-profit basis, to a person who is a visitor on land in relation to which either the network unit owner, or a person within the immediate circle of the network unit owner, has a legal or equitable interest.
Setting this exemption out in the Determination allows the exemption to be adjusted if new business models suggest that is necessary. At present, it is a matter of common sense that entities providing services to visitors should not be obliged to seek a carrier licence. However, it is possible that in the future there may be a need to make adjustments to this exemption depending on how the business models of carriers, carriage service providers and over-the-top providers evolve.
Flexibility in making this category of instrument through the determination process fosters innovation, development and growth in the Australian telecommunications industry and supports the long term interests of end-users.
Consultation
The Australian Communications and Media Authority and the Communications Alliance were consulted on the remaking of this instrument. Both parties agreed that the instrument should be remade through the determination-making process.
Regulatory impact assessment
The Office of Best Practice Regulation (OBPR) has advised that, as the Determination makes only minor drafting amendments with minimal impact, a Regulatory Impact Statement is not required. The OBPR reference number is 25072.
Detailed notes on the Determination are set out in Attachment A.
Statement of compatibility with human rights
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 B.
Attachment A
Notes on the Telecommunications (Carrier Licence Exemption – Supply of Carriage Services to Visitors) Determination 2019
Section 1 Name
Section 1 provides that the name of the instrument is the Telecommunications (Carrier Licence Exemption – Supply of Carriage Services to Visitors) Determination 2019.
Section 2 Commencement
Section 2 provides that the instrument commences on the day after it is registered on the Federal Register of Legislation.
Section 3 Authority
Section 3 provides that the authority for the making of the Determination is in paragraph 51(1)(c) of the Tel Act.
Section 4 Definitions
Section 4 defines key expressions that are used in the Determination.
The note at the beginning of section 4 provides that a number of expressions used in the instrument are defined in the Tel Act. By virtue of paragraph 13(1)(b) of the Legislation Act 2003, those expressions will have the same meaning as in the enabling legislation, as in force from time to time. In the Determination, those expressions include ‘carriage service’, ‘immediate circle’ and ‘network unit’.
Under the Tel Act, carriage service means a service for carrying communications by means of guided and/or unguided electromagnetic energy.
Under the Tel Act, immediate circle includes a person’s employee, an employee of a partnership or an officer of a body corporate.
Under the Tel Act, network unit has the same meaning as Division 2 of Part 2 of the Tel Act.
The term Act in the Determination means the Telecommunications Act 1997.
Section 5 Schedules
Section 5 provides that each instrument that is specified in a Schedule to the Determination is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Determination has effect according to its terms. There is one Schedule to the Determination.
Section 6 Exemption for network units used to supply carriage service to visitors
Section 6 provides that section 42 of the Tel Act does not apply in relation to a network unit to supply a carriage service, on a not-for-profit basis, to a person on land in relation to which:
- the person is a visitor; and
- either of the following persons has a legal or equitable interest:
- the network unit owner; or
- a person within the immediate circle of the network unit owner.
The exemption requires that the person using the network unit is a visitor. A visitor is a person who is a guest, who may stay for a short time or a long time at the invitation of their host. For example, a sales representative who is requested to provide a sales presentation at the site controlled by another unrelated company would be a visitor of the company.
The exemption also requires that the network unit owner, or another person within their immediate circle, has a legal or equitable interest in the land on which the network unit is being used to supply the carriage service.
The exemption also requires the use of the network unit to be on a not-for-profit basis. This requirement ensures that the network unit owner cannot derive a commercial benefit from supplying the carriage service without a carrier licence in these circumstances, potentially to the competitive detriment of other carriers.
Schedule 1 – Repeals
Schedule 1 to the Determination repeals the Determination under subsection 51(1), No.2 of 1998.
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications (Carrier Licence Exemption – Supply of Carriage Services to Visitors) Determination 2019
This 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
The Determination repeals and remakes the Determination under subsection 51(1), No.2 of 1998, which is due to sunset on 1 April 2019. The 1998 Determination was operating effectively, and is remade in substantially the same form.
Section 42 of the Tel Act prohibits the owner a network unit from using the unit to supply a carriage service to the public without a carrier licence or a nominated carrier declaration being in force in relation to the unit. Section 44 of the Tel Act in effect provides that a network unit is being used to supply carriage services to the public if an end-user is outside the network unit owner’s immediate circle. Section 23 of the Tel Act sets out those who are considered to be part of a network unit owner's immediate circle. Visitors using a network unit do not form part of a network unit owner’s ‘immediate circle’. Paragraph 51(1)(c) of the Tel Act provides that the Minister may determine that section 42 does not apply in relation to the specified use of a network unit.
In the absence of this exemption, suppliers of carriage services to visitors would be supplying carriage services to the public, and would require a carrier licence. However, to require a carrier licence when a network unit owner is supplying a carriage service to visitor on a not-for-profit basis would create an unnecessary regulatory burden.
Therefore, the Determination provides that section 42 of the Tel Act does not apply where a network unit is being used to supply a carriage service, on a not-for-profit basis, to a person who is a visitor on land in relation to which either the network unit owner, or a person within the immediate circle of the network unit owner, has a legal or equitable interest.
Human rights implications
This Determination does not engage any of the applicable rights or freedoms.
Conclusion
This Determination is compatible with human rights as it does not raise any human rights issues.