Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014

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

Legislation au F2014L01215 Not in force Legislative Instrument

Legislation content

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1 of 1999 (Late Payment Penalty Instrument) (together the old instruments) are due to “sunset” (i.e. be automatically repealed) on 1 April 2015 and 1 October 2015 respectively, in accordance with Part 6 of the Legislative Instruments Act 2003 (the LIA).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

 

Overview

The Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014, made under the Telecommunications Act 1997, serves to consolidate and continue existing regulations concerning the annual carrier licence charge, which is imposed on telecommunications licensed carriers. This Determination was enacted to address the impending automatic repeal of 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, scheduled for 1 April 2015 and 1 October 2015 respectively, as per the sunsetting provisions in the Legislative Instruments Act 2003. The Australian Communications and Media Authority (ACMA), recognising the necessity of these instruments for the ongoing regulation of telecommunications charges, has remade them in a consolidated form with minor stylistic changes to maintain continuity and effectiveness. The consolidated Determination specifies the due date for the annual carrier licence charge, sets the rate for late payment penalties, authorises the ACMA to decide on remissions of late payment penalties, and provides transitional arrangements for existing charges and penalty applications. This legislative action aims to ensure a seamless transition and maintain the regulatory framework's integrity concerning telecommunications carrier licence charges.

Scope and Application

The Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014 applies to telecommunications carriers in Australia who hold a carrier licence under the Telecommunications Act 1997. This legislation governs the annual carrier licence charge, its due date, the late payment penalty rates, and the process for remission of late payment penalties. The determination is applicable nationally across Australia, ensuring consistent regulation and enforcement across all states and territories. The Act does not explicitly state exclusions or thresholds; however, it provides for the remission of late payment penalties under specific conditions. Subordinate instruments, such as the Determination, extend and detail the application of the primary Act by providing specific rules and transitional arrangements for the payment of annual carrier licence charges. The ACMA has the authority to make decisions about the remission of late payment penalties and has established transitional arrangements for annual charge payment invoices and applications for remission of late payment penalties made before the commencement day of the Determination. The Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014 was made to consolidate and replace the existing 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 were set to be repealed. The ACMA undertook public consultation before making the Determination, although no written submissions were received. The ACMA deemed the existing instruments to be fit for purpose and remade them with minor stylistic and drafting changes, without any significant alterations to the substantive provisions. The Determination provides for the due date of the annual carrier licence charge, the calculation of late payment penalties, and the process for remission of late payment penalties, along with transitional arrangements to ensure a smooth transition from the old instruments to the new Determination.

Key Provisions

The Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014 sets out the key provisions for the payment of annual carrier licence charges by telecommunications carriers. Section 5(3) of the Determination specifies that the annual carrier licence charge is due and payable 30 calendar days after the date specified on an invoice issued by the Australian Communications and Media Authority (ACMA). Section 6(1) details the circumstances under which a late payment penalty is payable, which is when any annual charge remains unpaid after the due date. Section 7(1) stipulates the daily rate for the late payment penalty, either 20% per annum or the previous financial year's average General Interest Charge (GIC) rate, whichever is higher. The ACMA has the authority under Section 8(1) to remit the whole or a part of a late payment penalty. This includes considering applications for remission and making decisions based on specified conditions outlined in Section 10. The Determination imposes several obligations on the parties it governs. Carriers must ensure they pay the annual carrier licence charge by the due date as specified in Section 5. If a carrier fails to meet the due date, they become liable for the late payment penalty as per Section 6. Additionally, the ACMA is obligated to issue invoices for the annual charge and late payment penalties and consider any applications for remission in accordance with the provisions of Sections 8 through 11. Breach of the provisions of this Determination can lead to financial penalties and other consequences. Specifically, Section 6(1) imposes a penalty on carriers who fail to pay the annual charge by the due date. The penalty is calculated based on the rate specified in Section 7, which is either 20% per annum or the previous financial year's average GIC rate, whichever is higher. Failure to remit the late payment penalty as decided by the ACMA under Section 8 can result in the carrier being liable for the full penalty amount. The Determination does not specify maximum penalties but leaves it to the ACMA to determine the exact amount of the penalty based on the duration of the late payment. The ACMA's decisions can be reviewed under the Administrative Appeals Tribunal Act if the carrier is unsatisfied with the outcome.

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