EXPLANATORY STATEMENT
Issued by the Authority of the Australian Communications and Media Authority
Telecommunications Act 1997
Telecommunications (Infringement Notices) Guidelines 2011
Outline
Part 31B of the Telecommunications Act 1997 (the Telecommunications Act) establishes a scheme under which authorised officers of the Australian Communications and Media Authority (ACMA) may issue infringement notices for contraventions of civil penalty provisions under the Telecommunications Act, Telecommunications (Consumer Protection and Service Standards) Act 1999 (the TCPSS Act) and the Telecommunications (Interception and Access) Act 1979 (the TIA Act).
The infringement notice scheme is intended to provide a more efficient means of dealing with contraventions of certain civil penalty provisions as an alternative to instituting civil penalty proceedings.
Subsection 572M(3) of the Telecommunications Act provides that an authorised infringement notice officer must not issue an infringement notice unless guidelines are in force under subsection 572M(2). The purpose of this instrument is to establish guidelines that an authorised infringement officer must have regard to when exercising a power conferred by Part 31B to issue an infringement notice. The instrument will also assist the telecommunications industry and the broader community to understand how the ACMA will use its new infringement notice powers.
Guidelines formulated by the ACMA under subsection 572M(2) are a legislative instrument.[1]
Background
The infringement notice scheme
The infringement notice scheme under Part 31B of the Telecommunications Act is part of a package of legislative reforms contained in the Telecommunications Legislation Amendment (Competition and Consumer Safeguards) Act 2010. These reforms aim to enhance competitive outcomes in the telecommunications industry and strengthen consumer safeguards relating to the universal service obligation, customer service guarantee and priority assistance by ensuring consumers are protected and service standards are maintained in the transition to the National Broadband Network.
The ACMA’s expanded powers to issue infringement notices will assist it in enforcing compliance with new service performance standards and benchmarks imposed as part of the Australian Government’s consumer safeguard reforms. In addition, these powers will enable the ACMA to take regulatory action for breaches of civil penalty provisions across the broader telecommunications regime by giving infringement notices.
Subsection 572E(1) of the Telecommunications Act provides that an authorised infringement notice officer of the ACMA is empowered to give a person an infringement notice for a breach of a specified civil penalty provision if the officer has reasonable grounds to believe that the person has contravened the civil penalty provision. A ‘civil penalty provision’ is a provision of the Telecommunications Act, TCPSS Act or TIA Act that is declared by the Telecommunications Act, TCPSS Act or TIA Act to be a civil penalty provision.[2] In the case of breaches of sections 68 and 101 of the Telecommunications Act, an infringement notice may only be given in relation to contraventions of provisions which have been listed by the ACMA.
An infringement notice given by an authorised infringement notice officer must briefly set out details of the alleged breach, the penalty amount and period in which the penalty is to be paid. The recipient may elect to pay or not pay the infringement notice penalty within the period specified. Payment of the penalty has the effect of discharging any liability of the recipient for the alleged contravention. In the event that the penalty is not paid, the ACMA will consider what further enforcement action is warranted in relation to the alleged breach.
Object and Purpose
The Telecommunications (Infringement Notices) Guidelines 2011 (the Guidelines) have been formulated for the purposes of subsection 572M(3) of the Telecommunications Act, which provides that an authorised infringement notice officer must not give an infringement notice to a person unless guidelines are in force under subsection 572M(2). This means that an authorised infringement notice officer cannot issue an infringement notice until the ACMA makes such guidelines.
Further, subsection 572M(1) provides that, in exercising a power conferred under Part 31B, an infringement notice officer must have regard to any relevant guidelines made by the ACMA.
The Guidelines highlight the discretionary factors which an authorised infringement notice officer would generally consider when exercising his or her power to issue an infringement notice. The Guidelines also set out other matters in relation to infringement notices, such as:
- the content of an infringement notice;
- requests for extension of time to pay the penalty specified in an infringement notice;
- withdrawal of infringement notices; and
- the ACMA’s approach to publication of infringement notices.
Public Consultation
The ACMA released the draft Guidelines, draft declaration proposed to be made under subsection 572E(7) of the Telecommunications Act and associated discussion paper for public consultation on 31 August 2011 for a two week period. Five responses were received which comprised submissions from Telstra, Vodafone Hutchison Australia, the Telecommunications Industry Ombudsman, Communications Alliance and the Australian Communications Consumer Action Network.
In response to the submissions, the ACMA made some minor changes to the Guidelines. These changes were aimed at improving the clarity of the Guidelines. One of the changes made in response to submissions was to subsection 6.6 (Content of an infringement notice) of the Guidelines. This provision was clarified such that if the alleged contravention of a civil penalty provision to which an infringement notice relates consists of a breach of another Act or instrument, the infringement notice will identify the other provision and set out brief details of the alleged breach. For example, if the civil penalty provision to which an infringement notice relates is subsection 462(1) of the Telecommunications Act, the infringement notice will also set out brief details of the provision of the Telecommunications Numbering Plan 1997 which the person has contravened.[3]
Regulatory Impact
A regulatory impact assessment is not required for this instrument as it will not have a direct impact on business or the not-for-profit sector. The Guidelines are intended to provide authorised infringement notice officers of the ACMA with guidance regarding the issuing of infringement notices under Part 31B of the Telecommunications Act.
ATTACHMENT
Notes on sections
Section 1 Name of Guidelines
Section 1 provides that the Guidelines are called the Telecommunications (Infringement Notices) Guidelines 2011.
Section 2 Commencement
Section 2 provides that the Guidelines commence on the day after they are registered on the Federal Register of Legislative Instruments.
Section 3 Definitions
Section 3 sets out definitions of terms that are used in the Guidelines.
Section 4 Introduction
Section 4 explains that the ACMA has made the Guidelines for the purpose of the exercise of infringement notice powers under Part 31B of the Telecommunications Act 1997 (the Telecommunications Act) and that they are in force for the purposes of subsection 572M(3) of the Telecommunications Act.
Subsection 4.4 provides that the Guidelines intend to highlight the discretionary factors which an authorised infringement notice officer would generally consider in the exercise of his or her power to give an infringement notice.
Subsection 4.5 explains that the Guidelines take into account the objects of and the regulatory policy underpinning the Acts referred to in the Guidelines.
Subsection 4.6 explains that the Guidelines are intended as a guide and the ACMA retains the discretion to impose or seek other remedies or sanctions where the ACMA considers it to be appropriate.
Section 5 Exercising Enforcement Powers
Section 5 provides a list of factors that the ACMA may consider when determining the appropriate enforcement response to particular conduct. The list is not exhaustive.
Section 6 Infringement Notices
Subsection 6.1 explains that an authorised an infringement notice officer may give a person an infringement notice in respect of a contravention of a particular civil penalty provision. It also explains that, in respect of certain civil penalty provisions, namely sections 68 and 101 of the Telecommunications Act, an infringement notice may only be given in respect of certain kinds of contraventions of those provisions (this is dealt with in subsections 572E(5) and (6) of the Telecommunications Act and the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011).
Subsection 6.2 reiterates that there is no obligation on the ACMA to issue an infringement notice in relation to an alleged contravention and that a range of factors (as outlined in Section 5) may be considered in deciding whether an infringement notice is an appropriate enforcement tool. Subsection 6.2 outlines some circumstances where the ACMA may consider an infringement notice is not an appropriate enforcement tool.
Subsection 6.3 provides that the decision to issue an infringement notice must be made by the Chair or by a person authorised by the ACMA under section 572L of the Telecommunications Act.
Subsection 6.4 explains that the ACMA may not take further action regarding an alleged contravention of a listed infringement notice provision, if the recipient makes a timely payment of the penalty amount specified on the infringement notice. Such payment discharges the liability of the person for that alleged contravention. In the event that payment is not made in accordance with the infringement notice, the ACMA may take action including the commencement of proceedings for the imposition of a pecuniary penalty, as set out in subsection 6.5.
Content of an infringement notice
Subsection 6.6 outlines what information an infringement notice given by the ACMA under Part 31B of the Telecommunications Act will include.
Request for an extension of time in which to pay the penalty
Subsection 6.7 provides that in most circumstances, payment of the penalty specified in the infringement notice is required within 28 days after the notice is given, however the ACMA has discretion under section 572F of the Telecommunications Act to extend the time for payment. Subsection 6.8 explains that a request for an extension of time to make a payment must be made before the due date and that the ACMA will consider extension requests on a case by case basis.
Withdrawal of an infringement notice
Subsection 6.9 provides that an infringement notice may be withdrawn by the ACMA either of its own volition or following a successful request for withdrawal by the recipient of the notice. For such requests to be considered, they must occur within 28 days after the notice was given.
Subsection 6.10 outlines factors that may be relevant in determining whether an infringement notice should be withdrawn. These include whether there is further information or evidence suggesting that a breach did not occur or the conduct is more serious than initially believed.
Subsection 6.11 provides that in most cases, the issuing officer will be best placed to review a request made under subsection 6.9 and therefore, such requests should be made to the issuing officer, as outlined in subsection 6.12.
Effect of withdrawal of an infringement notice
Subsection 6.13 provides that the penalty amount will be refunded if an infringement notice is withdrawn after payment of the penalty. Subsection 6.14 explains that the ACMA will consider whether further action is appropriate if an infringement notice is withdrawn.
Publication
Subsection 6.15 outlines the ACMA’s general approach to the publication of circumstances relating to infringement notices given under Part 31B of the Telecommunications Act. Subsection 6.16 sets out the view of the ACMA that publication of the fact of compliance, as outlined in subsection 6.15 may have an educative and deterrent effect.
Subsection 6.17 outlines a non-exhaustive list of factors the ACMA may consider when deciding whether or not publication should occur. Subsection 6.18 provides that the ACMA may publish information concerning the issue of, and compliance with infringement notices in an aggregated manner without the identification of the individual recipients of the notices.
[1] See section 572M(2) of the Telecommunications Act
[2] See section 7 of the Telecommunications Act.
[3] Subsection 462(1) of the Telecommunications Act is a “listed infringement notice provision” (see the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011).