EXPLANATORY STATEMENT
Issued by the Authority of the Australian Communications and Media Authority
Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2013
Telecommunications Act 1997
Purpose
The Australian Communications and Media Authority (the ACMA) has made the Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2013 (the Amendment Declaration) for the purpose of specifying certain provisions as “listed infringement notice provisions” under section 572E of the Telecommunications Act 1997 (the Telecommunications Act). The Amendment Declaration amends the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011 (the Principal Declaration) to declare two additional listed infringement notice provisions.
If a listed infringement notice provision has been breached and that conduct also constitutes a contravention of section 68 or 101 of the Telecommunications Act, the ACMA may, providing that certain criteria are met, give an infringement notice under Part 31B of the Telecommunications Act in relation to that contravention.
Legislative basis
Part 31B of the Telecommunications Act establishes a scheme under which the Chair of the ACMA and certain appointed ACMA officers may give infringement notices in respect of contraventions of civil penalty provisions in the Telecommunications Act or the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the TCPSS 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.
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 are listed by the ACMA.
Subsection 572E(7) relevantly provides that the ACMA may, by legislative instrument, declare that a specified provision of the Telecommunications Act or the TCPSS Act is a ‘listed infringement notice provision’ for the purposes of section 572E (see also subsection 572E(9)).
The new listed infringement notice provisions
The Amendment Declaration declares two new listed infringement notice provisions:
a) Subsection 130(2) of the TCPSS Act, regarding failure of a service provider to comply with a direction from the ACMA to enter the Telecommunications Industry Ombudsman (TIO) scheme; and
b) Subsection 102(4) of the Telecommunications Act, regarding contravention of a remedial direction given by the ACMA to a service provider.
The effect of the Amendment Declaration will therefore be that the ACMA may, subject to the requirements of Part 31B, issue infringement notices for breach of these provisions.
Failure to comply with a direction to join the TIO scheme – subsection 130(2) of the TCPSS Act
The TIO scheme is a free and independent alternative dispute resolution scheme for consumers in Australia who have complaints about their telephone or internet services. Subsection 128(4) of the TCPSS Act states that the TIO scheme must provide for the TIO to (a) investigate; (b) make determinations relating to; and (c) give directions relating to; complaints about carriage services by end‑users of those services.
Subsection 128(1) of the TCPSS Act requires each carrier (as defined in section 7 of the Telecommunications Act) and each eligible carriage service provider (ECSP) (as defined in section 127 of the TCPSS Act), in association with other carriers and other ECSPs, to enter into a scheme providing for a TIO.
Subsection 130(1) provides that the ACMA may give a carriage service provider a written notice directing the provider to enter into the TIO scheme. This section applies to carriage services providers that are not ECSPs. Subsection 130(2), which is declared in the Amendment Declaration to be a listed infringement notice provision, states that a provider must comply with a direction under 130(2) to enter into the TIO.
Accordingly, the effect of the Amendment Declaration is that the ACMA may, subject to Part 31B of the Telecommunications Act, give an infringement notice to a carriage service provider who does not comply with a direction to join the TIO scheme.
Contravention of a remedial direction – subsection 102(4) of the Telecommunications Act
The ACMA may issue a remedial direction to a service provider in circumstances where that service provider has contravened, or is contravening, a “service provider rule”: subsection 102(1) of the Telecommunications Act. Standard service provider rules are set out in Schedule 2 of the Telecommunications Act.
In those circumstances, the ACMA may give the provider a written direction requiring the provider to take specified action directed towards ensuring that the provider does not contravene the rule, or is unlikely to contravene the rule, in the future: subsection 102(2). Relevantly, the ACMA may issue a remedial direction to an ECSP who has not joined the TIO scheme, contrary to the requirement in subsection 128(1) of the TCPSS Act, directing the provider to join the TIO scheme.
Subsection 102(4), which is declared in the Amendment Declaration to be a listed infringement notice provision, provides that a service provider must not contravene a direction given by the ACMA under subsection 102(2).
Accordingly, the effect of the Amendment Declaration is that, subject to Part 31B of the Telecommunications Act, the ACMA may give an infringement notice to a service provider in respect of a contravention of a direction made under subsection 102(2).
Consultation
Subsection 572E(8) of the Telecommunications Act sets out the nature and extent of consultation to be undertaken by the ACMA prior to making or varying a declaration under subsection 572E(7). In accordance with the requirements of subsection 572E(7), on 23 November 2012, the ACMA published on its website a consultation paper outlining its proposal to make the Amendment Declaration, and inviting persons to make submissions to the ACMA about the proposal (ACMA Issue for Comment IFC 46/2012). Submissions closed on 23 December 2012.
The TIO made the only submission to consultation process, which was supportive of the proposal.
Regulatory Impact
The Office of Best Practice Regulation (OBPR) has considered the matter and formed an opinion that the regulatory changes arising from the Amendment Declaration are minor in nature and that no further regulatory impact analysis is required. The OBPR regulatory impact statement exemption number is ID14350.
Notes on the instrument
Section 1 – Name of Declaration
The Declaration is called the Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2013.
Section 2 – Commencement
The Declaration commences on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 – Amendment of the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011
Section 3 provides that Schedule 1 amends the Principal Declaration.
Schedule 1 – Amendments
Item [1] declares subsection 102(4) of the Telecommunications Act to be a listed infringement notice provision, by inserting a reference to that provision part of Schedule 1 of the Principal Declaration which relates to the Telecommunications Act.
Item [2] declares subsection 130(2) of the TCPSS to be a listed infringement notice provision, by inserting a reference to that provision in the part of Schedule 1 of the Principal Declaration which relates to the TCPSS Act.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2013
This Legislative Instrument 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 of the Legislative Instrument
This Legislative Instrument declares certain provisions of the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999 to be “listed infringement notice provisions”. The effect of the declaration is that the ACMA may issue infringement notices for breaches of the declared provisions, rather than institute civil penalty proceedings for such breaches.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
The Australian Communications and Media Authority