EXPLANATORY STATEMENT
Issued by the Australian Communications and Media Authority
Telecommunications (Non-refundable Code Development Costs) Determination Variation 2014 (No 1)
Telecommunications Act 1997
Purpose
The purpose of the Telecommunications (Non-refundable Code Development Costs) Determination Variation 2014 (No 1) (the Variation Instrument) is to amend the Telecommunications (Non-refundable Code Development Costs) Determination 2006 (the Determination) so that it specifies non-refundable costs in relation to both the development of industry codes and the variation of existing industry codes.
Legislative Basis
Telecommunications industry bodies and associations are eligible to apply for reimbursement of the costs of developing consumer-related industry codes in accordance with Division 6A in Part 6 of the Telecommunications Act 1997 (the Act). Under recent amendments to the Act, reimbursement of the costs of varying an existing industry code can also the subject of an application by an industry body or association.
Under the amended provision section 136E, the definition of a ‘refundable cost’ extends to both costs incurred in the development of an existing code and the variation of an existing code. A refundable cost does not include a cost specified in a determination made by the Australian Communications and Media Authority (the ACMA) under subsection 136E(1).
Under subsection 33(3) of the Acts Interpretation Act 1901 a power to make an instrument shall be construed as including a power exercisable in the like manner and subject to like conditions (if any) to vary the instrument. The Variation Instrument is made under subsection 136E(1) of the Act, and varies the Determination.
The Variation Instrument is a disallowable legislative instrument for the purposes of section 42 of the Legislative Instruments Act 2003.
Consultation
The changes to the Determination are consequential to the amendments made to the Act by the Telecommunications Legislation Amendment (Consumer Protection) Act 2014 to allow a body or association to apply for reimbursement of the costs of varying an industry code.
The ACMA consulted with Communications Alliance, the main industry body affected by the amendments and the only industry body which has to date, made an application for reimbursement of costs under Part 6 of the Act. Communications Alliance was supportive of the proposed amendments to the Determination.
Public consultation has not been considered necessary as the instrument is of a minor or machinery nature and does not substantially affect or alter existing arrangements.
Operation
The Variation Instrument varies section 4 of the Determination to provide that the purpose of the Determination is to specify costs incurred in developing or varying a code that are not refundable costs for the purposes of Division 6A of Part 6 of the Act. The Variation Instrument also varies (by substitution) section 5 by including a reference to varying an industry code where reference is made to developing an industry code to reflect the extension of the scope of the reimbursement process to the costs of variation of industry codes. Further, amendments are made to the definition of ‘industry participant’ to include participants in the telemarketing and fax marketing industries.
Regulation Impact Statement
The Office of Best Practice Regulation (OBPR) has determined that the proposed regulatory change in this submission is minor or machinery in nature and has therefore verified that no further regulatory impact analysis is required – OBPR reference number ID 16807.
Statement of Compatibility
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 LI Act applies to cause a statement of compatibility to be prepared in respect of that legislative instrument. The statement is at Attachment 1.
Documents incorporated by reference
None.
NOTES ON THE VARIATION INSTRUMENT
Section 1 Name of instrument
Section 1 provides that the name of the instrument is the Telecommunications (Non-refundable Code Development Costs) Determination Variation 2014 (No 1).
Section 2 Commencement
Section 2 provides that the instrument commences on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 Variation of Telecommunications (Non-refundable Code Development Costs) Determination 2006
Section 3 provides that variations to the Determination are effected by Schedule 1 of the instrument.
Schedule 1 Variations
Item [1] Section 3, definition of industry participant
This variation substitutes a new definition of ‘industry participant’ to include persons mentioned in sections 111AA and 111AB of the Act who are participants in the telemarketing and fax marketing industries. Sections 111AA and 111AB were added to the Act after the making of the Determination in 2006.
Item [2] Section 4
This variation inserts a reference to varying an industry code in order to reflect the scope of section 136E in applying to costs incurred both in the development of a new industry code and the variation of an existing code.
Item [3] Section 5
This variation inserts a reference to varying an industry code where reference is made to developing an industry code. The effect of the variation is that the non-refundable costs specified in section 5 apply in relation to the variation of a code, as well as the development of a code.
Attachment 1 Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The Telecommunications (Non-refundable Code Development Costs) Determination Variation 2014 (No.1) (Legislative Instrument) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
This Legislative Instrument is made under subsection 136E(1) of the Telecommunications Act 1997 (the Act) and amends the Telecommunications (Non-refundable Code Development Costs) Determination 2006. The overall effect of the Legislative Instrument is to expand the scope of the existing Determination so that certain costs incurred by an industry body in the development or variation of an industry code are declared to be non-refundable for the purposes of the reimbursement scheme under Division 6A of Part 6 of the Act.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.