Telecommunications (Non-refundable Code Development Costs and Auditing Requirements) Determination 2016

Administered by Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts

Legislation au F2016L00365 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by the Australian Communications and Media Authority

Telecommunications Act 1997

Telecommunications (Non‑refundable Code Development Costs and Auditing Requirements) Determination 2016

Purpose

The Telecommunications (Non‑refundable Code Development Costs and Auditing Requirements) Determination 2016 (the Determination), made under the Telecommunications Act 1997 (the Act):

  • specifies the costs that might be incurred by an industry body or association in developing or varying a consumer-related industry code that are non-refundable under subsection 136E(1) of the Act, to support the reimbursement scheme established by Division 6A of Part 6 of the Act;
  • specifies the persons who are to be approved auditors for the purposes of paragraph 136C(5)(a) of the Act; and
  • specifies the requirements that are to be the approved auditing requirements for the purposes of paragraph 136C(5)(b) of the Act.

The Telecommunications (Approved Auditors and Auditing Requirements) Determination 2006 and Telecommunications (Non-refundable Code Development Costs) Determination 2006 (together the prior instruments) were due to “sunset” (i.e. be automatically repealed) on 1 April 2016, under Part 6 of the Legislation Act 2003 (the LA). 

Following review, and consultation as described below, the Australian Communications and Media Authority (the ACMA) formed the view that the prior instruments were operating effectively and efficiently, and continued to form a necessary and useful part of the legislative framework.  Accordingly, the ACMA has remade the prior instruments by making a consolidated Determination, without any significant changes, in order to preserve the on-going effect of the prior instruments.

Legislative Provisions

Division 6A of Part 6 of the Act establishes a legislative scheme for eligible bodies and associations to apply to the ACMA for reimbursement of the costs of developing and varying consumer-related industry codes of practice (reimbursement scheme).

Under section 136A of the Act a body or association may make a written application for a declaration that it is eligible for reimbursement of refundable costs incurred by it in developing or varying a code.

Once a declaration is in force under section 136B of the Act, the eligible body or association can make a written application for reimbursement of refundable costs under section 136C of the Act. A refundable cost is defined as a cost incurred by a body or association in developing or varying a code, other than a cost specified in a written determination made by the ACMA under subsection 136E(1) of the Act.

 

Under section 136C, applications for reimbursement must include, among other things, a copy of the code or variation accompanied by a written statement of costs, and a written declaration by an approved auditor that the statement of costs complies with the approved auditing requirements.

The ACMA has the power to make a determination under subsection 136C(5) of the Act, specifying the persons who are to be approved auditors and the approved auditing requirements that an industry body or association must meet when submitting a written claim for reimbursement for code development costs to the ACMA.

Determinations made by the ACMA under subsections 136C(5) and 136E(1) are legislative instruments for the purposes of the LA.

The Determination is made in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA). 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.

 

Background

The ACMA made the prior instruments under subsections 136C(5) and 136E(1) of the Act to support the reimbursement scheme. The prior instruments are due to be automatically repealed on 1 April 2016, under the sunsetting provisions in section 50 of the LA. The ACMA considers that there is an ongoing requirement for determinations to be made under subsections 136C(5) and 136E(1) of the Act to assist industry with making and varying codes, determining which code development costs are refundable and identifying the approved auditors and auditing requirements to apply to the reimbursement scheme.

The purpose of the Determination is to replace the prior instruments without making any significant changes to the regulatory arrangements created by the prior instruments.

The Determination specifies the costs that might be incurred by an industry body or association in developing or varying a consumer-related industry code that are not refundable under the scheme established by Division 6A of Part 6 of the Act. This ensures that only costs that are reasonably incurred as a part of the code development process will be reimbursed. The Determination also specifies the persons who can act as approved auditors for the purposes of paragraph 136C(5)(a) of the Act, and the requirements that are to be the approved auditing requirements for the purposes of paragraph 136C(5)(b) of the Act.

The Determination generally replicates the prior instruments. The changes are largely stylistic and administrative in nature, including minor drafting changes and updates to the relevant accounting bodies, including the addition of one accounting body, of which an approved auditor may be a practising member for the purposes of the reimbursement scheme. A reference to the recently repealed section 111A of the Act has been removed from the definition of industry participant in section 2. The Determination does not change the manner in which costs for code reimbursement are calculated, or the manner in which the ACMA assesses and reimburses code development or variation costs under Part 6 of the Act.

Further details of to the Determination are set out in Attachment A.


Public Consultation

Section 17 of the LA provides that before a rule-maker, such as the ACMA, makes a legislative instrument, it must be satisfied that any consultation considered by the rule-maker to be appropriate has been undertaken. In this case, the ACMA considered it appropriate to consult directly with key stakeholders and by way of public notice on its website between 30 January 2016 and 24 February 2016, with a draft version of the Determination, requesting comment. As a result, minor amendments were made to the Determination.

Regulatory Impact Statement

The ACMA has obtained the advice of the Office of Best Practice Regulation (OBPR) that a Regulation Impact Statement is not required for the Determination as it merely reproduces the provisions contained within two sunsetting determinations, being the prior instruments. The OBPR exemption numbers are ID 20257 and ID 20258.

Statement of Compatibility with Human Rights

A statement of compatibility with human rights has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and is set out in Attachment B.

 


 

Attachment A

DETAILS OF THE Telecommunications (Non‑refundable Code Development Costs and Auditing Requirements) Determination 2016
 

PART 1  PRELIMINARY

Section 1 – Name of Determination

Section 1 provides that the name of the Determination is the Telecommunications (Non‑refundable Code Development Costs and Auditing Requirements) Determination 2016.

Section 2 – Commencement

Section 2 provides that the Determination commences on the day after it is registered on the Federal Register of Legislation.

Section 3 – Revocation

Section 3 revokes the Telecommunications (Non‑refundable Code Development Costs) Determination 2006  and the Telecommunications (Approved Auditors and Auditing Requirements) Determination 2006 .

Section 4 - Definitions

Section 4 defines various terms used in the Determination.

PART 2 Non-refundable Industry Code Development and Variation Costs

Section 5 – Costs that are not refundable

Section 5 specifies the costs that are non-refundable code development costs, pursuant to subsection 136E(1) of the Act, which gives the ACMA the power to determine costs which are  non-refundable.

Part 3  Approved Auditors and Auditing Requirements

Section 6 - Approved auditors

Section 6 specifies the persons who are to be approved auditors for the purposes of subsection 136C(5) pursuant to paragraph 136C(5)(a) of the Act.

Section 7 - Approved auditing requirements

Section 7 specifies the approved auditing requirements for the purposes of subsection 136C(5) of the Act pursuant to paragraph 136C(5)(b) of the Act.
 

 


 

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Telecommunications (Non‑refundable Code Development Costs and Auditing Requirements) Determination 2016

Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 (the HRPS Act) requires the rule maker in relation to a legislative instrument to which section 42 (disallowance) of the Legislation Act 2003 (the LA) applies to cause a statement of compatibility to be prepared in respect of that legislative instrument.

The Telecommunications (Non‑refundable Code Development Costs and Auditing Requirements) Determination 2016 (the Determination) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the HRPS Act.

Overview of the Determination

The  Determination is made under the Telecommunications Act 1997 (the Act) and:

  • specifies the costs that might be incurred by an industry body or association in developing or varying a consumer-related industry code that are non-refundable under subsection 136E(1) of the Act, to support the reimbursement scheme established by Division 6A of Part 6 of the Act;
  • specifies the persons who can act as approved auditors under paragraph 136C(5)(a) of the Act; and
  • specifies the requirements that are to be the approved auditing requirements under paragraph 136C(5)(b) of the Act.

Human rights implications

The Determination does not engage any of the applicable rights or freedoms.

Conclusion

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

 

Australian Communications and Media Authority

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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.