EXPLANATORY STATEMENT

Approved by Australian Communications and Media Authority

Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2023

Telecommunications Act 1997

Authority

The Australian Communications and Media Authority (the ACMA) has made the Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2023 (the Determination), under subsections 73(3) and (4) of the Telecommunications Act 1997 (the Act) and subsection 33(3) of the Acts Interpretation Act 1901 (the AIA).

Subsection 73(3) of the Act provides that the annual carrier licence charge (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 to the Commonwealth, by way of a penalty, an amount calculated at the rate of 20% per annum, or if the ACMA determines a lower percentage, that lower percentage per annum.

Subsection 73(6) provides that a determination made under subsection 73(4) of the Act 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 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.

Purpose and operation of the instrument

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 Determination:

• determines the due date for the annual charge under subsection 73(3) of the Act;
• specifies the annual charge late payment penalty rate under subsection 73(4) of the Act; and
• authorises the ACMA to make decisions about remission of a late payment penalty in accordance with subsection 73(6) of the Act.

The Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014 (the 2014 instrument) is due to “sunset” (i.e. be automatically repealed) on 1 October 2024 in accordance with Part 6 of the Legislation Act 2003 (the LA). 

Following review, and consultation as described below, the ACMA formed the view that the 2014 instrument was operating effectively and efficiently, and continues to form a necessary and useful part of the legislative framework. Accordingly, the ACMA has remade the instrument, without any significant changes, in order to preserve the on-going effect of the 2014 instrument.

A provision-by-provision description of the Determination is set out in the notes at Attachment A

The Determination is a disallowable legislative instrument for the purposes of the LA. 

Documents incorporated by reference

The Determination incorporates (including by adoption of definitions) or otherwise refers to the following Acts, as in force from time to time:

• the Act; and
• the Taxation Administration Act 1953 (specifically, section 8AAD).

The Acts may be accessed, free of charge, on the Federal Register of Legislation (www.legislation.com.au).

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 18 September 2023 and 16 October 2023 by means of a consultation paper and a draft determination published on its website. 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 Assessment

The ACMA determined that the existing instrument was fit for purpose, and should be remade without any significant changes. Accordingly, the ACMA has certified those matters to the Office of Impact Analysis (OIA), and no Impact Analysis (IA) is required. The OIA reference number is OIA23-05967.

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 below has been prepared to meet that requirement.

Overview of the Determination

The Determination, made under subsections 73(3) and (4) of 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; and
• authorises the ACMA to make decisions about remission of a late payment penalty under subsection 73(6) of the Act.

The Determination revokes and replaces the 2014 instrument, which is due to “sunset” (be automatically repealed) on 1 October 2024.

Human rights implications

The ACMA has assessed whether the Determination 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 likely impact of the Determination and the nature of the applicable rights and freedoms, the ACMA has formed the view that the Determination does not engage any of those rights or freedoms.

Conclusion

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

Attachment A

Notes to the Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2023

Part 1 - Preliminary

Section 1 – Name

This section provides for the instrument to be cited as the Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2023 (the Determination).

Section 2 – Commencement

Section 2 provides that the Determination commences 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 73(3) and (4) of the Telecommunications Act 1997 (the Act).

Section 4 - Repeal of the Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014

Section 4 provides that the Telecommunications (Payment of Annual Carrier Licence Charge) Determination 2014 (F2014L01215) is repealed.

Section 5 – Definitions

Section 5 defines key terms used in the Determination. 

Section 6 – References to other instruments

This section provides that in the Determination, unless the contrary intention appears:

• a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time; and
• a reference to any other kind of instrument is a reference to that other instrument as in force or in existence from time to time.

Part 2 - Due date for annual charge

Part 2 sets out the due date for the annual charge.

Section 7 – When annual charge is due and payable

Section 7 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 3 – Late payment penalties

Part 3 sets out when a late payment penalty is payable and how it is calculated. It also allows the ACMA to remit the whole or a part of a late payment penalty, and sets out the circumstances in which the ACMA may do so.

Section 8 - Late payment penalty payable

Section 8 sets out when a person is liable to pay the penalty and how it is calculated.

Section 9 - Rate of late payment penalty

Section 9 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 (as defined in section 5) is less than 20% per annum – the previous financial year average GIC rate.

Section 10 - Remission of late payment penalty

Subsection 10(1) provides that, subject to subsection 10(5), 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.

Subsection 10(2) provides that a person may apply for remission of a late payment penalty payable by the person and subsection 10(3) provides that an application must be in writing and specifies the information an application must include.

Subsection 10(4) 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.

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. A decision on remission of penalties made under the Determination is a reviewable decision under section 555 of the Act (see paragraph 1(d) of Schedule 4 to the Act). In accordance with section 556 of the Act, if a person makes an application for remission under subsection 10(2) of the Determination, the ACMA must make a decision on the application within 90 days after receiving the application, or if the ACMA has, within those 90 days, given the applicant a written request for further information about the application, within 90 days after receiving that further information.

The ACMA may remit the whole or a part of the amount only if the conditions specified in subsection 10(5) are met. If the specified conditions are not met, the ACMA must refuse to remit the whole or a part of the amount.

Subsection 10(6) provides that if the ACMA makes a decision about an application for a remission, it must give the applicant a written notice of its decision, and the reasons for the decision. Under subsection 557(1) of the Act, a written notice of a decision which deals with the remission of late payment penalty must include statements setting out the review rights of the person affected by the decision. The person affected by the decision may, if the person is dissatisfied with the decision, apply to the ACMA for reconsideration of that decision (see sections 555 and 558 of the Act and paragraph 1(d) of Schedule 4 to the Act). 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 (see section 562 of the Act).

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 9 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. The GIC rate means the rate determined under section 8AAD of the Taxation Administration Act 1953, and published by the Australian Taxation Office (ATO) on a quarterly basis on the ATO website.