Telecommunications Laws Amendment (Universal Service Cap) Act 1999

Administered by Department of Communications and the Arts

Legislation au C2004A00433 Not in force Act

Legislation content

 

 

 

 

Telecommunications Laws Amendment (Universal Service Cap) Act 1999

 

No. 42, 1999

 

 

 

 

Telecommunications Laws Amendment (Universal Service Cap) Act 1999

 

No. 42, 1999

 

 

 

 

An Act to amend the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999, and for other purposes

 

 

Contents

1 Short title...................................

2 Commencement...............................

3 Schedule(s)..................................

Schedule 1—Amendment of the Telecommunications Act 1997

Schedule 2—Amendment of the Telecommunications (Consumer Protection and Service Standards) Act 1999

 

Telecommunications Laws Amendment (Universal Service Cap) Act 1999

No. 42, 1999

 

 

 

An Act to amend the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999, and for other purposes

[Assented to 11 June 1999]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Telecommunications Laws Amendment (Universal Service Cap) Act 1999.

2  Commencement

 (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

 (2) If this Act does not receive the Royal Assent before 30 June 1999, Schedule 1 is taken to have commenced on 30 June 1999.

 (3) Schedule 2 commences, or is taken to have commenced, immediately after the commencement of Part 2 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

3  Schedule(s)

  Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


Schedule 1—Amendment of the Telecommunications Act 1997

 

1  At the end of section 183

Add:

 (7) The ACA may waive compliance with subsection (5) in relation to a particular claim for a capped financial year (within the meaning of section 186).

 (8) If:

 (a) a person lodges a claim for a levy credit for the 1998‑99 financial year or the 1999‑2000 financial year; and

 (b) after the claim is lodged, the Minister makes or varies a determination under subsection 186(16) or (17) in relation to that financial year;

the person may, by written notice given to the ACA within 60 days after the determination was made or varied, vary the claim.

 (9) The variation of the claim must be in a form approved in writing by the ACA.

 (10) The variation of the claim must be accompanied by a report of an approved auditor that:

 (a) is in a form approved in writing by the ACA; and

 (b) states that the auditor has been given sufficient access to the person’s records in order to audit the variation; and

 (c) states that the auditor has audited the variation; and

 (d) contains a declaration of the opinion of the auditor, being a declaration in the terms specified in the form.

 (11) A form approved by the ACA for the purposes of subsection (9) may provide for verification by a statutory declaration of statements in variations of claims for levy credits.

 (12) The ACA may waive compliance with subsection (10) in relation to a particular variation of a claim.

2  At the end of section 185

Add:

 (3) In this section:

claim includes a variation of a claim.

3  Subsection 186(1)

After “financial year” (first occurring), insert “(other than a capped financial year)”.

4  At the end of section 186

Add:

Capped financial years

 (13) For the purposes of this section, each of the following is a capped financial year:

 (a) the 1997‑1998 financial year;

 (b) the 1998‑1999 financial year;

 (c) the 1999‑2000 financial year.

 (14) A person’s net universal service cost for the 1997‑1998 financial year is whichever is the lesser of the following amounts:

 (a) $253.32 million;

 (b) the amount that would have been the person’s net universal service cost for that financial year worked out under subsection (1) if it were assumed that the 1997‑1998 financial year were not a capped financial year.

 (15) A person’s net universal service cost for the 1998‑1999 financial year or the 1999‑2000 financial year depends on which of the following paragraphs is applicable for that financial year:

 (a) if:

 (i) the person is Telstra; and

 (ii) a determination is in force under subsection (16) in relation to that financial year;

  the person’s net universal service cost for that financial year is the amount specified in, or worked out in accordance with, the determination;

 (b) if:

 (i) the person is Telstra; and

 (ii) no determination is in force under subsection (16) in relation to that financial year;

  the person’s net universal service cost for that financial year is worked out using the following formula:

  where:

  indexation factor means the indexation factor for that financial year worked out under subsection (20);

 (c) if:

 (i) the person is not Telstra; and

 (ii) a determination is in force under subsection (17) in relation to that financial year;

  the person’s net universal service cost for that financial year is the amount specified in, or worked out in accordance with, the determination;

 (d) if:

 (i) the person is not Telstra; and

 (ii) no determination is in force under subsection (17) in relation to that financial year;

  the person’s net universal service cost for that financial year is zero dollars.

 (16) The Minister may make a written determination:

 (a) specifying an amount for the purposes of the application of paragraph (15)(a) to a specified financial year; or

 (b) specifying a method of ascertaining an amount for the purposes of the application of paragraph (15)(a) to a specified financial year.

 (17) The Minister may make a written determination:

 (a) specifying an amount for the purposes of the application of paragraph (15)(c) to a specified financial year; or

 (b) specifying a method of ascertaining an amount for the purposes of the application of paragraph (15)(c) to a specified financial year.

 (18) To avoid doubt, in making a determination under subsection (16) or (17), the Minister is not required to have regard to paragraph 138(c) or (d).

 (19) A determination under subsection (16) or (17) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

 (20) For the purposes of subsection (15), the indexation factor for a financial year is the number worked out by dividing:

 (a) the sum of the index numbers for quarters in the 12‑month period ending on 31 March in that financial year;

by:

 (b) the sum of the index numbers for quarters in the 12‑month period ending on 31 March in the 1997‑1998 financial year.

 (21) The indexation factor is to be calculated to 3 decimal places, but increased by .001 if the fourth decimal place is more than 4.

 (22) For the purposes of subsection (20), if:

 (a) at any time, whether before or after the commencement of this subsection, the Australian Statistician has changed or changes the reference base for the Consumer Price Index;

then:

 (b) after the change, only numbers published in terms of the new base are to be used.

 (23) Before deciding whether to make or vary a determination under subsection (16) or (17), the Minister may direct the ACA to give the Minister such reports and/or advice as the Minister requires to assist in making the decision.

 (24) The ACA must comply with a direction under subsection (23).

 (25) Subsection (23) does not, by implication, limit the Minister’s powers under section 486 (which deals with public inquiries).

 (26) As soon as practicable after the ACA makes an assessment under section 193 of a person’s net universal service cost for the 1997‑1998 financial year, the ACA must cause to be published in the Gazette a statement setting out the amount that, in the ACA’s opinion, would have been the person’s net universal service cost for that financial year worked out under subsection (1) if it were assumed that the 1997‑1998 financial year were not a capped financial year.

 (27) In this section:

capped financial year has the meaning given by subsection (13).

index number, in relation to a quarter, means the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of that quarter (ignoring any later number that may be published in substitution for it).

5  Transitional—section 591 of the Telecommunications Act 1997

Section 591 of the Telecommunications Act 1997 applies to this Act in a corresponding way to the way in which it applies to the Telecommunications Act 1997.


Schedule 2—Amendment of the Telecommunications (Consumer Protection and Service Standards) Act 1999

 

1  At the end of section 54

Add:

 (7) The ACA may waive compliance with subsection (5) in relation to a particular claim for the 1999‑2000 financial year.

 (8) If:

 (a) a person lodges a claim for a levy credit for the 1999‑2000 financial year; and

 (b) after the claim is lodged, the Minister makes or varies a determination under subsection 57(14) or (15) in relation to that financial year;

the person may, by written notice given to the ACA within 60 days after the determination was made or varied, vary the claim.

 (9) The variation of the claim must be in a form approved in writing by the ACA.

 (10) The variation of the claim must be accompanied by a report of an approved auditor that:

 (a) is in a form approved in writing by the ACA; and

 (b) states that the auditor has been given sufficient access to the person’s records in order to audit the variation; and

 (c) states that the auditor has audited the variation; and

 (d) contains a declaration of the opinion of the auditor, being a declaration in the terms specified in the form.

 (11) A form approved by the ACA for the purposes of subsection (9) may provide for verification by a statutory declaration of statements in variations of claims for levy credits.

 (12) The ACA may waive compliance with subsection (10) in relation to a particular variation of a claim.

2  At the end of section 56

Add:

 (3) In this section:

claim includes a variation of a claim.

3  Subsection 57(1)

After “financial year” (first occurring), insert “(other than the 1999‑2000 financial year)”.

4  At the end of section 57

Add:

1999‑2000 financial year

 (13) A person’s net universal service cost for the 1999‑2000 financial year depends on which of the following paragraphs is applicable for that financial year:

 (a) if:

 (i) the person is Telstra; and

 (ii) a determination is in force under subsection (14) in relation to that financial year;

  the person’s net universal service cost for that financial year is the amount specified in, or worked out in accordance with, the determination;

 (b) if:

 (i) the person is Telstra; and

 (ii) no determination is in force under subsection (14) in relation to that financial year;

  the person’s net universal service cost for that financial year is worked out using the following formula:

  where:

  indexation factor means the indexation factor for that financial year worked out under subsection (18);

 (c) if:

 (i) the person is not Telstra; and

 (ii) a determination is in force under subsection (15) in relation to that financial year;

  the person’s net universal service cost for that financial year is the amount specified in, or worked out in accordance with, the determination;

 (d) if:

 (i) the person is not Telstra; and

 (ii) no determination is in force under subsection (15) in relation to that financial year;

  the person’s net universal service cost for that financial year is zero dollars.

 (14) The Minister may make a written determination:

 (a) specifying an amount for the purposes of the application of paragraph (13)(a) to a specified financial year; or

 (b) specifying a method of ascertaining an amount for the purposes of the application of paragraph (13)(a) to a specified financial year.

 (15) The Minister may make a written determination:

 (a) specifying an amount for the purposes of the application of paragraph (13)(c) to a specified financial year; or

 (b) specifying a method of ascertaining an amount for the purposes of the application of paragraph (13)(c) to a specified financial year.

 (16) To avoid doubt, in making a determination under subsection (14) or (15), the Minister is not required to have regard to paragraph 9(c) or (d).

 (17) A determination under subsection (14) or (15) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

 (18) For the purposes of subsection (13), the indexation factor for a financial year is the number worked out by dividing:

 (a) the sum of the index numbers for quarters in the 12‑month period ending on 31 March in that financial year;

by:

 (b) the sum of the index numbers for quarters in the 12‑month period ending on 31 March in the 1997‑1998 financial year.

 (19) The indexation factor is to be calculated to 3 decimal places, but increased by .001 if the fourth decimal place is more than 4.

 (20) For the purposes of subsection (18), if:

 (a) at any time, whether before or after the commencement of this subsection, the Australian Statistician has changed or changes the reference base for the Consumer Price Index;

then:

 (b) after the change, only numbers published in terms of the new base are to be used.

 (21) Section 48 (definition of financial year) does not apply to subsection (18).

 (22) Before deciding whether to make or vary a determination under subsection (14) or (15), the Minister may direct the ACA to give the Minister such reports and/or advice as the Minister requires to assist in making the decision.

 (23) The ACA must comply with a direction under subsection (22).

 (24) Subsection (22) does not, by implication, limit the Minister’s powers under section 486 of the Telecommunications Act 1997 (which deals with public inquiries).

 (25) In this section:

index number, in relation to a quarter, means the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of that quarter (ignoring any later number that may be published in substitution for it).

 

[Minister’s second reading speech made in—

House of Representatives on 25 March 1999

Senate on 19 April 1999]

 

(53/99)


 

 

Overview

The Telecommunications Laws Amendment (Universal Service Cap) Act 1999 was enacted by the Parliament of Australia to address the need for amendments to the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999, primarily focusing on introducing a cap on the universal service cost. The intent of the Act was to provide a regulatory framework that would prevent excessive costs associated with universal service obligations. This was achieved through the introduction of specific financial caps and the allowance for ministerial determinations to adjust costs for certain financial years, ensuring that the financial burden on telecommunications providers was manageable and predictable. The policy objective behind this legislation was to strike a balance between ensuring the provision of universal telecommunications services and preventing undue financial strain on telecommunications companies. By introducing caps and providing mechanisms for ministerial intervention, the Act aimed to maintain service standards while controlling costs, thus fostering a stable and competitive telecommunications market in Australia.

Scope and Application

The Telecommunications Laws Amendment (Universal Service Cap) Act 1999 is an Act of the Parliament of Australia that amends the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999. It applies to persons and entities involved in telecommunications services, particularly those subject to the universal service obligations under the amended Acts. The amendments primarily concern the capping of financial contributions to the universal service levy for specific financial years, affecting entities such as Telstra and other telecommunications carriers. The Act has a national reach, applying across Australia as it amends Commonwealth legislation. There are no explicit exclusions or exemptions detailed in the Act, but it does specify particular financial years (1997-1998, 1998-1999, and 1999-2000) to which the amendments apply. The Act allows for the Minister to make determinations that can further specify the application of these amendments through subordinate instruments, thereby extending or restricting their application as necessary.

Key Provisions

The Telecommunications Laws Amendment (Universal Service Cap) Act 1999 (C2004A00433) amends the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999. The primary objective of the Act is to establish a cap on the net universal service costs for specified financial years and to provide flexibility in claim variations and determinations by the Minister. Section 183 of the Telecommunications Act 1997 is amended to allow the Australian Communications Authority (ACA) to waive compliance with certain requirements for claims for levy credits. It also permits variations to claims if a determination is made by the Minister after the claim is lodged, provided the variation is approved by the ACA and supported by an auditor's report. Section 185 of the same Act is amended to clarify that a claim includes a variation of a claim, and section 186 is modified to specify that the cap applies to financial years 1997-1998, 1998-1999, and 1999-2000. The Act mandates specific net universal service costs for these years, depending on whether the entity is Telstra or another telecommunications provider, and whether a determination by the Minister is in effect. Additionally, the Minister is empowered to make determinations specifying amounts or methods for calculating costs, which are subject to disallowance under the Acts Interpretation Act 1901. The Act imposes several obligations on the parties it governs. For instance, the ACA is required to assess net universal service costs for specified financial years and to publish certain information in the Gazette. The Minister must consider reports and advice from the ACA when making or varying determinations and is subject to limitations on the factors to be considered. Furthermore, any person lodging a claim for a levy credit must comply with the ACA's requirements for claim variations, including the submission of an auditor's report. The Act also mandates that the ACA comply with any directions from the Minister for reports or advice necessary for making determinations. Breaches of the provisions in the Act can lead to various civil and criminal consequences. While the Act does not explicitly state penalties, it refers to the determinations made by the Minister as disallowable instruments under the Acts Interpretation Act 1901. This implies that any improper or unauthorised determinations could be subject to review and potential disallowance, with possible repercussions for those responsible for the breach. Additionally, failure to comply with the ACA's requirements for claims and variations, or to provide accurate and approved reports and declarations, could result in enforcement actions by the ACA or other regulatory bodies. The specific penalties for such breaches would depend on the relevant provisions of the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999.

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