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

Administered by Department of Communications and the Arts

Legislation au F2015L00829 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 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.

 

Overview

The Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2015 (No.1), enacted by the Australian Communications and Media Authority (ACMA), was introduced to update the list of provisions under the Telecommunications Act 1997 that can be subject to infringement notices as a more efficient means of handling certain civil penalty provisions. This Amendment Declaration removes two obsolete provisions related to revenue returns from the Telecommunications Universal Service Management Agency Act 2012, reflecting their impending repeal and the transition to new requirements under the Telecommunications (Consumer Protection and Service Standards) Act 1999. Concurrently, it adds a new provision that mandates the submission of written returns of eligible revenue, allowing the ACMA to issue infringement notices for breaches of this requirement. The policy objective of this amendment is to streamline regulatory processes by aligning the listed infringement notice provisions with current legislative requirements and practices.

Scope and Application

The Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2015 (No.1) made by the Australian Communications and Media Authority (ACMA) amends the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011, specifying provisions as "listed infringement notice provisions" under the Telecommunications Act 1997. This amendment is intended to align with the changes and repeals of the Telecommunications Universal Service Management Agency Act 2012, which is set to be repealed on 1 July 2015. The Amendment Declaration removes two obsolete provisions from the Principal Declaration and declares a new listed infringement notice provision. Specifically, subsection 43(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999, which requires a participating person to provide the ACMA with a written return of their eligible revenue for a specified period, is now a listed infringement notice provision. Conversely, subsections 91(1) and 94(1) of the Telecommunications Universal Service Management Agency Act 2012, which previously required similar revenue returns and auditor reports, are no longer listed infringement notice provisions due to their redundancy following the Act's repeal. This change ensures that the infringement notice scheme remains relevant and efficient in addressing contraventions under the current legislative framework.

Key Provisions

The Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2015 (No. 1) amends the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011 (Principal Declaration), specifying certain provisions as "listed infringement notice provisions" under section 572E of the Telecommunications Act 1997 (Telecommunications Act). Specifically, the Amendment Declaration removes two provisions from the Principal Declaration and declares a new listed infringement notice provision. This means that if a listed infringement notice provision is breached and also constitutes a contravention of sections 68 or 101 of the Telecommunications Act, the Australian Communications and Media Authority (ACMA) may issue an infringement notice under Part 31B of the Telecommunications Act, provided certain criteria are met. The obligations imposed by the Amendment Declaration on the parties or entities it governs include the requirement for a participating person for an eligible revenue period to provide the ACMA with a written return of their eligible revenue for that period, as mandated by subsection 43(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (TCPSS Act). This obligation ensures that the ACMA receives the necessary financial information from participating persons to manage and regulate the telecommunications industry effectively. Furthermore, the removal of subsections 91(1) and 94(1) of the Telecommunications Universal Service Management Agency Act 2012 (TUSMA Act) from the Principal Declaration reflects the changes in the regulatory landscape and the impending repeal of the TUSMA Act on 1 July 2015. The Amendment Declaration also outlines the consequences for breaches of the listed infringement notice provisions. Under Part 31B of the Telecommunications Act, the ACMA may issue an infringement notice for contraventions of civil penalty provisions, providing an alternative to civil penalty proceedings. The infringement notice scheme aims to offer a more efficient means of addressing minor to moderate breaches of the Act. The specific maximum penalties for breaches are not detailed in the Amendment Declaration itself but would typically be found within the relevant sections of the Telecommunications Act and the TCPSS Act. These penalties could include fines and other civil or administrative sanctions, depending on the nature and severity of the breach. It is essential for regulated entities to comply with these obligations to avoid potential infringement notices and associated penalties.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.