Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2014

Administered by Department of Communications and the Arts

Legislation au F2014L00961 Not in force Legislative Instrument

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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.

Overview

The Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2014 was enacted by the Australian Communications and Media Authority (ACMA) to address the need for a more efficient means of dealing with specific contraventions of civil penalty provisions in telecommunications legislation. This Amendment Declaration amends the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011 by removing an obsolete provision and adding two new provisions that enable the ACMA to issue infringement notices instead of initiating civil penalty proceedings for breaches. The Amendment Declaration specifies that the ACMA can issue infringement notices for breaches of subsections 91(1) and 94(1) of the Telecommunications Universal Service Management Agency Act 2012, thus streamlining the enforcement process for these specific contraventions. This legislative instrument was made in accordance with the requirements of the Telecommunications Act 1997 and the Acts Interpretation Act 1901, with the aim of enhancing the efficiency of the regulatory framework.

Scope and Application

The Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2014 amends the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011 to specify certain provisions as "listed infringement notice provisions" under the Telecommunications Act 1997. This amendment allows the Australian Communications and Media Authority (ACMA) to issue infringement notices for breaches of certain civil penalty provisions, thereby providing an alternative to initiating civil penalty proceedings. The Amendment Declaration removes an obsolete provision from the Principal Declaration and declares two new listed infringement notice provisions, namely subsections 91(1) and 94(1) of the Telecommunications Universal Service Management Agency Act 2012, which pertain to the requirement for participating persons to provide a written return of their eligible revenue and for this return to be accompanied by an approved auditor's report. This legislative instrument applies to the ACMA, participating persons within the telecommunications industry, and entities subject to the Telecommunications Act 1997. The amendment is applicable nationally, as it is a Commonwealth instrument. The Amendment Declaration does not specify any exclusions or thresholds but allows for further specification through subordinate instruments. The declaration is compatible with human rights as it does not engage any applicable human rights or freedoms.

Key Provisions

The Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2014 amends the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011. This amendment removes an obsolete provision from the Principal Declaration and adds two new provisions from the Telecommunications Universal Service Management Agency Act 2012 (the TUSMA Act) as listed infringement notice provisions (section 3). The two new provisions declared are subsection 91(1) of the TUSMA Act, which mandates a participating person to submit a written return of their eligible revenue to the Australian Communications and Media Authority (ACMA) for an eligible revenue period, and subsection 94(1) of the TUSMA Act, which requires that the eligible revenue return must be accompanied by a report from an approved auditor (Item [2], Schedule 1). The Amendment Declaration imposes specific obligations on entities governed by these provisions. For instance, subsection 91(1) of the TUSMA Act requires participating persons to submit a written return of their eligible revenue for an eligible revenue period to the ACMA. This return must be detailed and accurate, providing the ACMA with the necessary financial information to assess compliance with the Act (subsection 91(1), TUSMA Act). Additionally, subsection 94(1) of the TUSMA Act mandates that the eligible revenue return must be accompanied by a report from an approved auditor. This report must verify the accuracy and completeness of the financial information provided in the return, ensuring that the ACMA has reliable data to assess compliance (subsection 94(1), TUSMA Act). Failure to comply with these obligations can result in significant consequences. If the ACMA determines that there has been a breach of the listed infringement notice provisions and that this breach also constitutes a contravention of sections 68 or 101 of the Telecommunications Act, the ACMA may issue an infringement notice under Part 31B of the Telecommunications Act (subsection 572E(7), Telecommunications Act). The maximum penalty for each contravention is significant, reflecting the seriousness of the breach. For individuals, the maximum penalty is generally a fine of up to $21,000, while for bodies corporate, the maximum penalty can be much higher, up to $105,000 or three times the benefit gained from the contravention, whichever is the greater (subsection 572H(2), Telecommunications Act). Additionally, the infringement notice scheme is designed to provide a more efficient means of dealing with contraventions of certain civil penalty provisions, avoiding the need for more lengthy and costly civil penalty proceedings (Part 31B, Telecommunications Act).

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