EXPLANATORY STATEMENT
Telecommunications Act 1997
Telecommunications (Immediate Circle — Specified Joint Ventures and Contractors) Determination 2019
Authority
The Telecommunications (Immediate Circle — Specified Joint Ventures and Contractors) Determination 2019 (the Determination) is made by the Minister for Communications and the Arts under subsection 23(2) 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 23(2), No. 1 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 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. Subsection 23(2) of the Tel Act allows the Minister to determine that a person falls within another person’s immediate circle. Paragraph 23(1)(n) provides that a person’s immediate circle includes a person specified in a determination made under subsection 23(2).
The Determination details immediate circle arrangements pertaining to specified joint ventures. The effect of the Determination is to expand the immediate circle of a person engaged in a specified joint venture to include each other person participating in the joint venture (i.e. the joint venture partners) and any other person who, by operation of section 23 of the Tel Act, and the Determination, is part of that other person’s immediate circle. However, in order for the other persons to be included in the expanded ‘immediate circle’, the supply of the carriage services to those persons must be for purposes of, or incidental to, the activities of the specified joint venture.
Further, the Determination also details immediate circle arrangements pertaining to the engagement of specified contractors. The effect of the Determination is to expand the immediate circle of a person who has engaged another person as a specified contractor to include the specified contractor and any other person who, by operation of section 23 of the Tel Act, and the Determination, is part of the specified contractor’s immediate circle, but only where the supply of carriage services to those persons is for purposes of, or incidental to, work covered by the contract between the person and the contractor.
In summary, the Determination extends the immediate circle of a network unit owner to include joint venture partners and contractors, thus enabling network unit owners to supply carriage services, and to supply a content service using a carriage service, to those persons without being required to hold a carrier licence. However, in the case of a joint venture the supply of those services must not be the common undertaking of the joint venture and must either be for the purposes of, or incidental to the common undertaking of the joint venture. In the case of a specified contractor, the supply of those services must not be the subject of the contract and be no more than incidental to the contract.
Consultation
The Australian Communications and Media Authority and the Communications Alliance were consulted on the remaking of this instrument.
Regulatory impact assessment
The Office of Best Practice Regulation (OBPR) has advised that, as the new Determination will make 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 (Immediate Circle — Specified Joint Ventures and Contractors) Determination 2019
Section 1 Name
Section 1 provides that the name of the instrument is the Telecommunications (Immediate Circle — Specified Joint Ventures and Contractors) Determination 2019.
Section 2 Commencement
Section 2 provides that the instrument commences the day after it is registered on the Federal Register of Legislation.
Section 3 Authority
Section 3 provides that the source of authority for making the Determination is subsection 23(2) of the Telecommunications Act 1997 (the Tel Act).
Section 4 Definitions
Section 4 defines 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, and by virtue of paragraph 13(1)(b) of the Legislation Act 2003 will have the same meaning as in the enabling legislation, as in force from time to time.
Under the Tel Act, a carriage service means a service for carrying communications by means of guided and/or unguided electromagnetic energy.
Under the Tel Act, a content service has the same meaning as given in section 15 of the Tel Act.
Under the Tel Act, immediate circle has the same meaning as given in section 23 of the Tel Act.
The expression Act means the Telecommunications Act 1997.
The term 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.
The term 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 supply of carriage services or a content service using a carriage service are not the common undertaking, and are no more than incidental to the common undertaking of the joint venture.
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 Immediate circle
Section 6 sets out persons that will be considered to consist part of a person’s immediate circle in addition to those listed in subsection 23(1) of the Tel Act.
The effect of subsection 6(a) is to expand the immediate circle of a person engaged in a specified joint venture to include each other person participating in the joint venture (i.e. the joint venture partners) and any other person who, by operation of section 23 of the Tel Act, and this Determination, is part of that other person’s immediate circle. However, in order for the other persons to be included in the expanded ‘immediate circle’, the supply of the carriage services, or the supply of a content service using a carriage service to those persons, must be for purposes of, or incidental to, the activities of the specified joint venture. For example, the Determination will have the effect of enabling joint venture partners in a mining project to make use of telecommunications facilities owned by a company participating in the joint venture for the purposes of, or incidental to, the mining project.
The effect of subsection 6(b) is to expand the immediate circle of a person who has engaged another person as a specified contractor to include the specified contractor and any other person who, by operation of section 23 of the Tel Act and the Determination, is part of the specified contractor’s immediate circle, but only where the supply of carriage services or the supply of a content service using a carriage service to those persons, is not the subject of the contract and is no more than incidental to the contract between the person and the contractor. For example, the Determination will have the effect of enabling a contractor engaged to do work for a resource exploration company to make use of telecommunications facilities owned by the participating company for the purposes of, or incidental to, the contracted services.
Schedule 1—Repeals
Schedule 1 to the Determination repeals the Determination under subsection 23(2), No. 1 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 (Immediate Circle — Specified Joint Ventures and Contractors) 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 23(2), No. 1 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 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. Subsection 23(2) of the Tel Act allows the Minister to determine that a person falls within another person’s immediate circle. Paragraph 23(1)(n) provides that a person’s immediate circle includes a person specified in a determination made under subsection 23(2).
The Determination details immediate circle arrangements pertaining to specified joint ventures. The effect of the Determination is to expand the immediate circle of a person engaged in a specified joint venture to include each other person participating in the joint venture (i.e. the joint venture partners) and any other person who, by operation of section 23 of the Tel Act, and the Determination, is part of that other person’s immediate circle. However, in order for the other persons to be included in the expanded ‘immediate circle’, the supply of the carriage services to those persons must be for purposes of, or incidental to, the activities of the specified joint venture.
Further, the Determination also details immediate circle arrangements pertaining to the engagement of specified contractors. The effect of the Determination is to expand the immediate circle of a person who has engaged another person as a specified contractor to include the specified contractor and any other person who, by operation of section 23 of the Tel Act, and the Determination, is part of the specified contractor’s immediate circle, but only where the supply of carriage services to those persons is for purposes of, or incidental to, work covered by the contract between the person and the contractor.
In summary, the Determination extends the immediate circle of a network unit owner to include joint venture partners and contractors, thus enabling network unit owners to supply carriage services, and to supply a content service using a carriage service, to those persons without being required to hold a carrier licence. However, in the case of a joint venture the supply of those services must not be the common undertaking of the joint venture and must either be for the purposes of, or incidental to the common undertaking of the joint venture. In the case of a specified contractor, the supply of those services must not be the subject of the contract and be no more than incidental to the contract.
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.