EXPLANATORY STATEMENT
Issued by the Authority of the Australian Communications and Media Authority
Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2014
Telecommunications Act 1997
Purpose
The Australian Communications and Media Authority (the ACMA) has made the Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2014 (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 remove an obsolete provision from the Principal Declaration and 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, the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the TCPSS Act) and the Telecommunications Universal Service Management Agency Act 2012 (the TUSMA 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, the TCPSS Act or the TUSMA Act is a ‘listed infringement notice provision’ for the purposes of section 572E (see also subsection 572E(9)).
Subsection 33(3) of the Acts Interpretation Act 1901 provides that the power to make an instrument includes, unless contrary intention appears, a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.
The new listed infringement notice provisions
The Amendment Declaration declares two new listed infringement notice provisions:
a) Subsection 91(1) of the TUSMA Act, which requires a participating person for an eligible revenue period to provide the ACMA with a written return of their eligible revenue for that period; and
b) Subsection 94(1) of the TUSMA Act, which requires that an eligible revenue return must also be accompanied by a report of an approved auditor.
The effect of the Amendment Declaration will therefore be that the ACMA may, subject to the requirements of Part 31B, issue an infringement notice for a breach of either of those provisions.
The Amendment Declaration also removes section 20 of the TCPSS Act from the Principal Declaration. Section 20 of the TCPSS Act is now obsolete as it has been replaced by section 91 of the TUSMA Act.
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 15 April 2014, 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 13/2014). The ACMA also contacted affected stakeholders by email about the proposal on 15 April 2014. Submissions closed on 29 April 2014.
No submissions were received.
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 ID 16803.
Statement of Compatibility with Human Rights
Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule maker in relation to a legislative instrument to which section 42 (disallowance) of the Legislative Instruments Act 2003 applies to cause a statement of compatibility to be prepared in respect of that legislative instrument.
This statement has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The Amendment Declaration removes section 20 of the TCPSS Act as a listed infringement notice provision. The Amendment Declaration also declares two provisions of the TUSMA Act (subsections 91(1) and 94(1)) 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.
The ACMA has considered whether the Amendment Declaration engages any applicable human rights or freedoms and has formed the view that it does not. The Amendment Declaration is compatible with human rights as it does not raise any human rights issues.
Notes on the instrument
Section 1 – Name of Declaration
The Declaration is called the Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2014.
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] omits item 2(i) of Schedule 1 to the Principal Declaration which refers to section 20 of the TCPSS Act. The effect of this amendment is that section 20 of the TCPSS Act will no longer be a listed infringement notice provision.
Item [2] declares subsections 91(1) and 94(1) of the TUSMA Act to be listed infringement notice provisions, by inserting a reference to those provisions in a new item 4 of Schedule 1 to the Principal Declaration.