EXPLANATORY STATEMENT

Issued by the Authority of the Australian Communications and Media Authority

Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2015 (No.1)

Telecommunications Act 1997

Purpose

The Australian Communications and Media Authority (the ACMA) has made the Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2015 (No.1) (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) and subsection 33(3) of the Acts Interpretation Act 1901.

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 Amendment Declaration amends the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011 (the Principal Declaration) to remove two obsolete provisions from the Principal Declaration and to declare a new listed infringement notice provision.

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 and 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)).

Amendments to the Principal Declaration

The Amendment Declaration has the effect of declaring subsection 43(1) of the TCPSS Act to be a listed infringement notice provision.  Subsection 43(1) of the TCPSS Act requires a participating person for an eligible revenue period to provide the ACMA with a written return of their eligible revenue for that period.  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 this provision.

The Amendment Declaration also has the effect that the following provisions will no longer be listed infringement notice provisions:

a)       Subsection 91(1) of the Telecommunications Universal Service Management Agency Act 2012 (the TUSMA Act), which required 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 required that an eligible revenue return must also be accompanied by a report of an approved auditor.

The TUSMA Act will be repealed by the Telecommunications Legislation Amendment (Deregulation) Act 2015 on 1 July 2015.  Subsection 91(1) of the TUSMA Act has been replaced by section 43(1) of the TCPSS Act while the approved auditor report under subsection 94(1) is no longer required.  

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 31 March 2015, 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 9/2015). The ACMA also contacted affected stakeholders by email about the proposal on 31 March 2015.  Submissions closed on 14 April 2015.

One submission was received during the consultation period from Telstra. Telstra confirmed their understanding that the audit requirement was being removed when submitting an eligible revenue return and that as such there was no longer any need for an associated infringement notice to be linked to the failure to provide the audit report.

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 18574.

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 subsections 91(1) and 94(1) of the TUSMA Act as listed infringement notice provisions. The Amendment Declaration also declares subsection 43(1) of the TCPSS Act to be a “listed infringement notice provision”. The effect of the declaration is that the ACMA may issue infringement notices for breaches of the declared provision. 

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

Section 1 provides that the Declaration is called the Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2015 (No.1).

Section 2 – Commencement

Section 2 provides that 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 43(1) of the TCPSS Act to be a listed infringement notice provision by inserting item 2(ha) into Schedule 1 to the Principal Declaration after existing item 2(h).

Item [2] omits item 4 of Schedule 1 to the Principal Declaration which refers to subsections 91(1) and 94(1) of the TUSMA Act.  There is no need to continue to maintain subsections 91(1) and 94(1) as listed infringement notice provisions given the impending repeal of the TUSMA Act on 1 July 2015 and because the last eligible revenue period to which the TUSMA Act applied was the 2013-14 period.  Eligible revenue returns for the 2014-15 eligible revenue period, and for later periods, will be submitted under the new Division 6 of Part 2 of the TCPSS Act.