EXPLANATORY STATEMENT

Approved by the Authority of the Australian Communications and Media Authority

Telecommunications Act 1997

Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2018 (No. 1)

Authority

The Australian Communications and Media Authority (the ACMA) has made the Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2018 (No. 1) (the instrument) under subsection 572E(7) of the Telecommunications Act 1997 (the Act) and section 33(3) of the Acts Interpretation Act 1901 (the AIA). 

Subsection 572E(7) of the Act provides that the ACMA may, by legislative instrument, declare that a specified provision of:

• the Act;
• a declaration in force under section 63 of the Act; or
• a determination in force under section 99 of the Act;

is a listed infringement notice provision for the purposes of section 572E of the Act. 

Section 572E allows the ACMA to give an infringement notice in relation to a contravention of a civil penalty provision.  However, sections 68 and 101 of the Act include civil penalty provisions that may be contravened by contravening any provision of the Act.  Accordingly, subsection 572E(6) sets out that an infringement notice may only be given in relation to a contravention of section 68 or 101 of the Act if the other provision is listed in the legislative instrument made under subsection 572E(7) of the Act, and has been so listed for at least three months before the alleged contravening conduct takes place.

Subsection 33(3) of the AIA relevantly provides that where an Act confers a power to make a legislative instrument, the power shall be construed as including 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.

A provision-by-provision description of the instrument is set out in the notes at Attachment A.

The instrument is a legislative instrument for the purposes of the Legislation Act 2003 (the LA).

Purpose and operation of the instrument

The instrument amends the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011 (Listed Infringement Notice Declaration) to:

a)      include specified provisions from the Telecommunications Service Provider (NBN Service Migration) Determination 2018 (Service  Migration Determination), which is a determination made under section 99 of the Act;

b)       include subclause 10(2) of Schedule 2 to the Act; and

c)       remove reference to two provisions which no longer exist.

Failure to comply with Service Migration Determination

The Service Migration Determination is part of a suite of ACMA regulatory measures, intended to improve the experience of consumers moving to and using the National Broadband Network (NBN).  The other instruments made under the Act for this purpose are:

1. the Telecommunications (Consumer Complaints Handling) Industry Standard 2018;
2. the Telecommunications (Consumer Complaints) Record-Keeping Rules 2018;
3. the Telecommunications (NBN Continuity of Service) Industry Standard 2018; and
4. the Telecommunications (NBN Consumer Information) Industry Standard 2018.

The enforcement options currently available to the ACMA in relation to contraventions of these instruments include:

1. issuing formal warnings;
2. issuing remedial directions;
3. accepting enforceable undertakings;
4. in relation to most of the instruments, giving an infringement notice; and
5. initiating civil penalty proceedings.

The Service Migration Determination is the only instrument in the suite in relation to which an infringement notice is not currently an enforcement option. However, the ACMA is able to align the enforcement options available by exercising its power under subsection 572E(7) of the Act to include provisions of the Service Migration Determination as listed infringement notice provisions. Aligning the enforcement options will ensure that there is a range of consistent remedies available for all of the new instruments.

Contravention of IPND reporting requirements – Clause 10(2) of Schedule 2 to the Act

Part 4 of Schedule 2 to the Act requires a carriage service provider, who supplies a carriage service to an end user who has a public number, to supply the Integrated Public Number Database (IPND) manager with such information as it reasonably requires to provide and maintain the IPND. 

Clause 10(2) requires this information to be given to Telstra Corporation Limited if it is the IPND Manager, while clause 11(2) requires the information to be given to another entity, if they are obliged to provide and maintain the IPND. Currently clause 11(2) is a listed infringement notice provision but clause 10(2) is not.

As Telstra is required as a condition of its carrier licence to provide and maintain the IPND, clause 10(2) is currently the operative provision in relation to supplying information to the IPND. Clause 11(2) would only become operative if another entity has been appointed under subsection 472(5) of the Act.

As Telstra is the IPND Manager, and has been since the IPND was established, it is logical and appropriate that clause 10(2) be a listed infringement notice provision. However, in light of the potential for IPND management to be taken over by an industry body at some point in the future, it is appropriate to maintain clause 11(2) as a listed infringement provision.

Other Amendments

The Telecommunications Service Provider (Mobile Premium Services) Determination 2010 (No. 1) was amended in 2014, omitting sections 11 and 12. Consequential amendments to the Listed Infringement Notice Declaration were not made at that time. It is considered appropriate to now make a consequential amendment, so that the Listed Infringement Notice Declaration does not include reference to provisions that no longer exist.

Documents incorporated by reference

No documents are incorporated by reference.

Consultation

Before the instrument was made, the ACMA was satisfied that consultation was undertaken to the extent appropriate and reasonably practicable, in accordance with section 17 of the LA.

Subsection 572E(8) of the Act also sets out requirements for 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(8), on 20 September 2018, the ACMA published on its website a consultation paper outlining its proposal to make the instrument, and inviting persons to make submissions to the ACMA about the proposal (ACMA Issue for Comment IFC 46/2012). Submissions closed on 4 October 2018.

The ACMA received feedback from Australian Communications Consumer Action Network and Communications Alliance Limited parties in relation to the draft instrument. Both submissions noted the proposed variation but did not provide any further substantive comment. 

Regulatory Impact Assessment

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 ID24321.

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 LA applies to cause a statement of compatibility to be prepared in respect of that legislative instrument.

The statement of compatibility set out below has been prepared to meet that requirement.

Overview of the instrument

The instrument amends the Listed Infringement Notice Declaration to include certain provisions of the Act and the Service Migration Determination to be ’listed infringement notice provisions’ under section 572E of the Act, thereby enabling the ACMA to give an infringement notice for a contravention of those provisions.  The giving of an infringement notice is an alternative to instituting civil penalty provisions in the Federal Court.  There is no requirement that a person pay an infringement notice – rather, payment of an infringement notice means that the matter cannot be pursued in the Federal Court.  Having a range of enforcement tools available, particularly ones that may avoid the need for lengthy and expensive court proceedings, is considered desirable.  The provisions that the instrument inserts into the Listed Infringement Notice Declaration affect carriage service providers only.

The instrument also omits certain provisions that have been repealed from the Listed Infringement Notice Declaration. 

Human rights implications

The ACMA has assessed whether the instrument is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.

Having considered the likely impact of the instrument and the nature of the applicable rights and freedoms, the ACMA has formed the view that the instrument does not engage any of those rights or freedoms. 

Conclusion

The instrument is compatible with human rights as it does not raise any human rights issues.

Attachment A

Notes to the Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2018 (No. 1)

Section 1 – Name

This section provides for the instrument to be cited as the Telecommunications (Listed Infringement Notice Provisions) Amendment Declaration 2018 (No. 1).

Section 2 – Commencement

This section provides for the instrument to commence at the start of the day after it is registered on the Federal Register of Legislation.

The Federal Register of Legislation may be accessed at www.legislation.gov.au.

Section 3 – Authority

This section identifies the provision of the Act that Authorises the making of the instrument, namely subsection 572E(7) of the Telecommunications Act 1997 (Telecommunications Act).

Section 4 – Amendments

Section 4 identifies that the amendments are set out in the Schedule.

Schedule 1 – Amendments

Item [1]

Item 1 amends item 1 of Schedule 1 to the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011 (Listed Infringement Notice Declaration) to include a new paragraph (ca), which provides that subclause 10(2) of Schedule 2 to the Telecommunications Act is a listed infringement notice provision.

Item [2]

Item 2 omits items 1(d) and 1(e) of Schedule 2 to the Listed Infringement Notice Declaration. The provisions referred to in those paragraphs no longer exist.

Item [3]

Item 3 inserts a new item 3 following item 2 of Schedule 2 to the Listed Infringement Notice Declaration.  The new item 2 lists a number of sections of the Telecommunications Service Provider (NBN Service Migration) Determination 2018, thereby providing that these provisions are listed infringement notice provisions.