EXPLANATORY STATEMENT

Approved by the Australian Communications and Media Authority

Telecommunications Act 1997

Telecommunications (Non-refundable Code Development Costs and Auditing Requirements) Determination 2026

Authority

The Australian Communications and Media Authority (the ACMA) has made the Telecommunications (Non-refundable Code Development Costs and Auditing Requirements) Determination 2026 (the instrument) under subsections 136C(5) and 136E(1) of the Telecommunications Act 1997 (the Act) and subsection 33(3) of the Acts Interpretation Act 1901 (the AIA).

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 (codes) (reimbursement scheme).

Eligible bodies and associations may submit codes for registration by the ACMA in accordance with section 117 of the Act.

Under section 136A of the Act an eligible 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 include a written claim for reimbursement of refundable costs under section 136C with the copy of the relevant code provided to the ACMA under section 117. 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 of the Act, claims for reimbursement must include, among other things, a written statement itemising the 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 of 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 Legislation Act 2003 (the LA).

The instrument is also made in reliance on subsection 33(3) of the Acts Interpretation Act 1901 (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.

Purpose and operation of the instrument

The instrument supports the reimbursement scheme established by Division 6A of Part 6 of the Act by specifying:

• 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;
• the persons who are to be 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 Telecommunications (Non-refundable Code Development Costs and Auditing Requirements) Determination 2016 (2016 Determination) was due to “sunset” (i.e. be automatically repealed) on 1 April 2026, under Part 4 of the LA.

Following review, and consultation as described below, the ACMA formed the view that the 2016 Determination was operating effectively and efficiently and continued to form a necessary and useful part of the legislative framework. Accordingly, the ACMA has made the instrument without any significant changes from the 2016 Determination, in order to preserve the ongoing effect of the prior instrument.

The instrument does not change the manner in which code development or variation costs are calculated, assessed or reimbursed under Part 6 of the Act.

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 LA and is disallowable. The instrument is subject to the sunsetting provisions of the LA.

Documents incorporated by reference

The instrument does not incorporate any documents by reference.

The instrument relies on definitions and operative provisions in the Act which establishes the reimbursement scheme under Division 6A of Part 6 and confers power on the ACMA to make the instrument.

References in the instrument to the Act are references to that Act as in force from time to time, consistent with section 10 of the AIA and subsection 13(1) of the LA.

The Act is available, free of charge, from the Federal Register of Legislation at www.legislation.gov.au.

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.

In this case, the ACMA consulted directly with key stakeholders and by way of public notice on its website between 14 January 2026 and 13 February 2026, inviting comments on a draft version of the instrument. Submissions were received from the Australian Telecommunications Association, Optus and the Department of Infrastructure, Transport, Regional Development, Communications, Sports and the Arts, all of which supported the making of the instrument without further amendments.

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 with human rights to be prepared in respect of that legislative instrument.

The statement of compatibility with human rights set out in Attachment B has been prepared to meet that requirement.

Attachment A

Notes to the Telecommunications (Non-refundable Code Development Costs and Auditing Requirements) Determination 2026

Part 1 – Preliminary

Section 1 Name of Determination

This section provides for the instrument to be cited as the Telecommunications (Non-refundable Code Development Costs and Auditing Requirements) Determination 2026.

Section 2 Commencement

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

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

Section 3 Authority

This section identifies the provisions of the Act that authorise the making of the instrument, namely subsections 136C(5) and 136E(1) of the Act.

Section 4 Repeal

This section provides that the Telecommunications (Non-refundable Code Development Costs and Auditing Requirements) Determination 2016 (F2016L00365) is repealed.

Section 5 Definitions

This section defines a number of key terms used throughout the instrument.

Part 2 – Non-refundable Industry Code Development and Variation Costs

Section 6 Costs that are not refundable

This section 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 7 Approved auditors

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

Section 8  Approved auditing requirements

This section specifies the approved auditing requirements for the purposes of section 136C pursuant to paragraph 136C(5)(b) of the Act.

Attachment B

Statement of compatibility with human rights

Prepared by the Australian Communications and Media Authority under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011

Telecommunications (Non-refundable Code Development Costs and Auditing Requirements) Determination 2026

The Telecommunications (Non‑refundable Code Development Costs and Auditing Requirements) Determination 2026 (the instrument) is compatible with the human rights and freedoms declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the instrument

The instrument is made by the Australian Communications and Media Authority 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.

The instrument replaced the Telecommunications (Non‑refundable Code Development Costs and Auditing Requirements) Determination 2016, which was due to sunset on 1 April 2026.

The instrument maintains the existing framework, making only minor stylistic and drafting changes, and does not alter the underlying policy objectives or operation of the reimbursement scheme, or impose new regulatory burdens on consumers.

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 nature and likely impact of the instrument, the ACMA has formed the view that the instrument does not limit any applicable human rights. To the extent that the instrument may be characterised as engaging human rights, any such engagements are minor and do not rise to the level of a limitation.

The instrument forms part of an administrative framework governing the reimbursement of code development and variation costs. It promotes transparency and accountability by requiring reimbursement claims to be supported by documentary evidence and an auditor’s declaration, supporting accurate and consistent decision‑making under the Act. Any information handled for these purposes is confined to what is reasonably necessary to assess claims and is managed in accordance with existing legislative and administrative safeguards.

The instrument does not impose restrictions on individuals, confer coercive powers, create offences or penalties, or remove existing procedural safeguards, including rights to seek review of decisions made under the broader legislative framework.

The instrument relates to reimbursement of certain costs incurred by industry bodies or associations and therefore to financial interests. It does not effect an acquisition of property, impose fees or penalties, or retrospectively alter entitlements. It clarifies which categories of costs are not refundable and supports the integrity of expenditure under the reimbursement scheme.

Conclusion

The instrument is compatible with human rights because it supports transparent, accountable and consistent arrangements for the reimbursement of code development and auditing costs and does not limit any applicable human rights.