EXPLANATORY STATEMENT

Issued by the Authority of the Australian Communications and Media Authority

Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014

Telecommunications Act 1997

Purpose

The Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014 (the Determination), made under the Telecommunications Act 1997 (the Act):

• Determines the due date for the annual carrier licence charge (annual charge) under subsection 73(3) of the Act;
• Specifies the annual charge late payment penalty rate under subsection 73(4) of the Act;
• Authorises the ACMA to make decisions about remission of a late payment penalty under subsection 73(6) of the Act; and
• Establishes transitional arrangements for annual charge payment invoices that remain wholly or partly unpaid as at the commencement day, the due date for annual charges where an invoice has been issued within 30 calendar days or less of the commencement day, and for decisions about applications for remission of a late payment penalty, where the application was made before the commencement day.

The Telecommunications (Due Date for Annual Carrier Licence Charge) Determination No. 1 of 1999 (Due Date Instrument) and Telecommunications (Late Payment of Annual Carrier Licence Charge) Determination No. 1 of 1999 (Late Payment Penalty Instrument) (together the old instruments) are due to “sunset” (i.e. be automatically repealed) on 1 April 2015 and 1 October 2015 respectively, in accordance with Part 6 of the Legislative Instruments Act 2003 (the LIA). 

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

Legislative Provisions

Subsection 73(3) of the Act provides that the annual charge is due and payable at the time ascertained in accordance with a written determination made by the ACMA.

Subsection 73(4) of the Act provides that the ACMA may by written instrument, determine that if any annual charge payable by a person remains unpaid after the due date, the person is liable to pay a penalty to the Commonwealth.

Subsection 73(6) provides that a determination may authorise the ACMA to make decisions regarding the remission of the whole or a part of an amount of late payment penalty.

Subsection 33(3) of the Acts Interpretation Act 1901 (the AIA) provides that where an Act confers a power to make a legislative instrument, the power shall be construed to include 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 power to make a written determination under subsection 73(4) also includes the power to revoke the Late Payment Penalty Instrument on the basis of subsection 33(3) of the AIA.

The Determination is a legislative instrument for the purposes of the LIA. 

Background

The annual charge is a charge that is imposed on a carrier licence and payable by the holder of the licence (being a carrier) under Part 3 of the Telecommunications (Carrier Licence Charges) Act 1997. The purpose of the annual charge is to recover costs incurred by the ACMA, the Australian Competition and Consumer Commission and the Australian Government in exercising their telecommunications functions and powers from telecommunications licensed carriers.

The old instruments are automatically due to be repealed under the sunsetting provisions in section 50 of the LIA on 1 April 2015 and 1 October 2015. The ACMA considers that there is an ongoing requirement for these annual charge related instruments to continue and therefore the ACMA has made the consolidated Determination.

The Determination largely replicates the old instruments, with only minor stylistic and drafting changes that are administrative in nature, including the removal of redundant information.

Details pertaining to the Determination are set out in Attachment A.

Public Consultation

Subsection 17(1) of the LIA requires that, before the ACMA makes a legislative instrument, it must be satisfied that appropriate and reasonably practicable consultation has been undertaken.

In this case, the ACMA consulted publicly between 7 April 2014 and 19 May 2014 by means of a consultation paper published on its website. The ACMA also contacted affected stakeholders by email about the proposal on 7 April 2014. The consultation paper explained the sunsetting process and the ACMA’s preliminary view that the existing arrangements remain relevant.  Interested parties were invited to comment.

The ACMA received no written submissions in response to the consultation paper. 

Regulatory Impact Statement

The ACMA determined that the existing instruments were fit for purpose, and should be remade without any significant changes. Accordingly, the ACMA has certified those matters to the Office of Best Practice Regulation (OBPR), and no Regulation Impact Statement (RIS) is required. The OBPR reference number is ID16394.

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 (Payment of Annual Carrier Licence Charge) Determination 2014

Section 1 – Name of Determination

Section 1 provides that the name of the Determination is the Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014.

Section 2 – Commencement

Section 2 provides that the Determination commences on 1 April 2015.

Section 3 – Revocation

Section 3 provides that the Telecommunications (Late Payment of Annual Carrier Licence Charge) Determination No. 1 of 1999 is revoked.

Section 4 – Definitions

Section 4 defines various terms used in the Determination.

PART 1 Due date for annual charge

Part 1 sets out when the annual charge is due and payable.

Section 5 – When annual charge is due and payable

Section 5 specifies that the annual charge is due and payable by a person 30 calendar days after the date specified on an invoice issued to the person by the ACMA.

Part 2  Determination of late payment penalty

Part 2 sets out when a late payment penalty is payable and how it is calculated.

Section 6 - Late payment penalty payable

Section 6 sets out when a person is liable to pay the penalty and how it is calculated.

Section 7 - Rate of late payment penalty

Section 7 specifies the annual charge late payment penalty daily rate as: 20% per annum; or if, for any day, the previous financial year average GIC rate is less than 20% per annum – the previous financial year average GIC rate.

Part 3 Decisions about remission of late payment penalty

Part 3 allows the ACMA to remit the whole or a part of a late payment penalty, and sets out what the ACMA may consider in its decision to remit the late payment penalty.

Section 8 - Remission of penalty

Section 8 provides that the ACMA may remit the whole or a part of an amount of late payment penalty payable by a person, whether or not the person has applied to the ACMA for the remission. Section 8 also sets out the conditions for applying for a remission of late payment penalty.

Section 9 - Request for additional information

Section 9 provides that the ACMA may ask an applicant, in writing, to provide additional information to allow the ACMA to make a decision in relation to the application for remission of a penalty.

Section 10 - Consideration of the decision

Section 10 provides that the ACMA must consider an application for remission within specific timeframes and decide whether to remit the whole or a part of the amount of late payment penalty.

The ACMA may remit the whole or a part of the amount only if the conditions specified in subsection (2) are met. If the specified conditions are not met the ACMA must refuse to remit the whole or a part of the amount.

Section 11 - Notification of decision

Section 11 provides that if the ACMA makes a decision about an application for a remission, it must give the applicant a written statement setting out the reasons for the decision and the arrangements under the Act for reviewing the decision.

The section also notes that an application may be made to the ACMA for reconsideration of a decision about the remission of the whole or a part of an amount of late payment penalty. If the ACMA affirms or varies the original decision under section 559 of the Act, an application may be made to the Administrative Appeals Tribunal for review of the decision.

Part 4 Transitional arrangements

Part 4 sets out the transitional arrangements that apply as a result of moving from the old instruments to the new Determination.

Section 12 - Annual charge unpaid as at the commencement day

Section 12 sets out transitional arrangements for any annual charges owing under the Late Payment Penalty Instrument that remain wholly or partly unpaid from the commencement day.

Section 13 - Due date for annual charge – invoice issued within 30 calendar days or less of commencement day

Section 13 sets out transitional arrangements that apply to the due date for any invoice issued within 30 calendar days or less of the commencement of the Determination where the charge would, but for the repeal of the Due Date Instrument, have become due for payment on or after the commencement day.

Section 14 - Application for remission made before commencement day

Section 14 sets out transitional arrangements that apply to an application for a remission of a late payment penalty that was made in accordance with Part 3 of the Late Payment Penalty Instrument but not decided before the commencement day. In this case, the application is to be dealt with in accordance with Part 3 of the Late Payment Penalty Instrument.

Schedule 1 - Calculation of previous financial year average GIC rate

Schedule 1 sets out how the previous financial year average GIC (general interest charge) rate, referred to in section 7 of the Determination is calculated.

It specifies the formula to be used, the means by which the general interest charge rates are determined, and the rounding to apply.

Attachment B

Statement of Compatibility with Human Rights

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

Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014

The Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014 (the Determination) 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 Determination

The Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014 (the Determination), made under the Telecommunications Act 1997 (the Act):

• Determines the due date for the annual carrier licence charge (annual charge) under subsection 73(3) of the Act;
• Specifies the annual charge late payment penalty rate under subsection 73(4) of the Act;
• Authorises the ACMA to make decisions about remission of a late payment penalty under subsection 73(6) of the Act; and
• Establishes transitional arrangements for annual charge payment invoices that remain wholly or partly unpaid as at the commencement day, the due date for annual charges where an invoice has been issued within 30 calendar days or less of the commencement day, and for decisions about applications for remission of a late payment penalty, where the application was made before the commencement day.

The Determination is intended to replace the Telecommunications (Due Date for Annual Carrier Licence Charge) Determination No. 1 of 1999 and the Telecommunications (Late Payment of Annual Carrier Licence Charge) Determination No. 1 of 1999, which are due to be automatically repealed on 1 April 2015 and 1 October 2015 respectively.

Human rights implications

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

Conclusion

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

Australian Communications and Media Authority