Explanatory Statement
Issued by the Authority of the Minister for Communications,
Urban Infrastructure, Cities and the Arts
Telecommunications (Consumer Protection and Service Standards) Act 1999
Telecommunications (Regional Broadband Scheme–Contracts and Grants Rules) Determination 2022
Authority
The Telecommunications (Regional Broadband Scheme–Contracts and Grants Rules) Determination 2022 (the Instrument) is made under subsection 87(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the Act). Subsection 87(1) confers power on the Minister to, by legislative instrument, make rules to be complied with by the Secretary of the Department of Infrastructure, Transport, Regional Development and Communications (the Department), in relation to the performance of the Secretary’s powers under Division 2 of Part 3 of the Act.
Section 80 of the Act confers power on the Secretary of the Department (on behalf of the Commonwealth) to enter into a contract with, or make a grant of financial assistance to, an eligible funding recipient in relation to various matters.
Under subsection 87(2) of the Act, the Secretary of the Department must comply with all rules made by the Minister.
Purpose
The purpose of the Instrument is to impose rules requiring the contract or grant entered into by the Secretary pursuant to section 80 of the Act with NBN Co Limited (NBN Co) (the current eligible funding recipient under the RBS), to include various information reporting requirements . This includes rules concerning the format, publication mechanism and timing for such reports to be met by the eligible funding recipient. The allocation of RBS funds under the Regional Broadband Scheme to the eligible funding recipient is through the section 80 contract or grant.
This implementation of the rules will ensure that the section 80 contract or grant between the Department and NBN Co regarding the use of RBS funds by NBN Co provides increased levels of public transparency. This will demonstrate that the eligible funding recipient uses funds received under the RBS exclusively to fund the operation of the satellite and fixed wireless networks as intended under the legislation. Initially, only NBN Co qualifies as an eligible funding recipient.
Background
The RBS was established through Part 3 of the Act and the Telecommunications (Regional Broadband Scheme) Charge Act 2020 to provide transparent and sustainable funding arrangements for NBN Co’s non-commercial fixed wireless and satellite networks. The RBS formed part of the Government’s Telecommunications Reform Package.
In response to concerns raised by stakeholders during review of the then proposed RBS legislation by the Environment and Communications Legislation Committee, the Government committed to providing increased transparency of NBN Co’s use of funds received under the RBS. This was intended to demonstrate that the funds from the RBS will be used exclusively to fund the non-commercial fixed wireless and satellite networks as intended under the legislation. This Instrument implements that commitment.
The Government acknowledged in its 2014 Telecommunications Regulatory and Structural Reform paper and also in the Explanatory Memorandum for the Telecommunications (Regional Broadband Scheme) Charge Bill 2019 that the transparency of the RBS funding arrangement is a critical element of the RBS.
Consultation
The Department consulted with NBN Co, the Australian Communications and Media Authority and the Australian Competition and Consumer Commission in formulating the Instrument.
Regulatory Impact Statement
A preliminary assessment of the Instrument was provided to the Office of Best Practice Regulation (OBPR) to determine whether a Regulatory Impact Statement (RIS) was required. The OBPR assessed the proposal as having a no more than minor regulatory impact and advised no RIS was required (OBPR22-01843).
Statement of compatibility with human rights
A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out at Attachment B.
Attachment A
Details of the Telecommunications (Regional Broadband Scheme–Contracts and Grants Rules) Determination 2022
Part 1 – Preliminary
Section 1 - Name
This section provides the name of the Instrument, which is the Telecommunications (Regional Broadband Scheme–Contracts and Grants Rules) Determination 2022.
Section 2 - Commencement
This section provides for the Instrument to commence on the day after it is registered on the Federal Register of Legislation.
Section 3 - Authority
This section provides that the Instrument is made under subsection 87(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the Act).
Section 4 - Cessation
This section provides that the Instrument ceases to have effect 3 years after it commences. It is envisaged the first contract with NBN Co, as the eligible funding recipient, for the payment of RBS funds, will cover a period of up to 3 years.
Section 5 - Simplified outline of the Instrument
This section provides a simplified outline of the Instrument. The Instrument is structured into two parts: Part 1 deals with preliminary matters; and Part 2 sets out the rules.
Section 6 - Interpretation
This section provides clarification of the definitions or meaning of key terminology used in the Instrument.
Part 2 – Rules
Division 1 – Preliminary
Section 7 - Simplified outline of this Part
This section is a simplified outline of Part 2, noting that it sets out the required terms and conditions that must be included in a written agreement which the Secretary enters into with the eligible funding recipient, NBN Co.
Division 2 – Required terms and conditions
Section 8 - Terms and conditions to be included in a section 80 contract or grant
Subsection 8(1) imposes the rule that the terms and conditions of a contract or grant which the Secretary enters into with the eligible funding recipient, NBN Co, must include terms:
- requiring NBN Co to publish a report (the prescribed report) on NBN Co’s website covering:
- the information specified in subsection 8(2) of the Instrument;
- information about the performance of the NBN fixed wireless and satellite networks;
- information about any cell and tower upgrades on the NBN fixed wireless network; and
- relating to the timing for publication of the prescribed report (by 31 October of each year) and website location for publication; and
- relating to assurances or verification for the information that must be published; and
- requiring NBN Co to take all reasonable steps to ensure that each published report remains available on NBN Co’s website for at least 5 years after it is first published; and
- requiring NBN Co to give the Commonwealth a copy of the prescribed report (and relevant assurance/verification statements) at least 20 business days prior to publishing the report on its website.
Subsection 8(2) outlines the requirement for specific financial data and information on the NBN fixed wireless and satellite networks to be included in the prescribed report.
Subsection 8(3) stipulates that none of the information in the previous subsections precludes further information requirements being included in the contract or grant made under section 80 of the Act.
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Telecommunications (Regional Broadband Scheme–Contracts and Grants Rules) Determination 2022
The Telecommunications (Regional Broadband Scheme–Contracts and Grants Rules) Determination 2022 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 Instrument
The Instrument has been made by the Minister for Communications, Urban Infrastructure, Cities and the Arts under subsection 87(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999.
The Instrument sets out a set of rules that the Secretary of the Department (currently the Department of Infrastructure, Transport, Regional Development and Communications) must comply with when entering into a contract or grant of financial assistance with an eligible funding recipient under section 80 of the Act for the Regional Broadband Scheme (the Scheme). Currently, only NBN Co Limited is an eligible funding recipient.
During consideration of the RBS legislation in the Parliament over 2019 and 2020, the Environment and Communications Legislation Committee noted concerns from numerous stakeholders regarding the transparency of the then proposed Scheme. The RBS legislation (namely, the Regional Charge Act 2020 and Schedule 4 to the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020) received Royal Assent on 25 May 2020. The Instrument has been written to increase transparency in the operation of the Scheme and implement the Government’s commitment to enhanced transparency regarding how the RBS funds are used. Transparency in the use of the RBS funds received by NBN Co under the Scheme is a critical element in ensuring that funds will be used exclusively to fund the non-commercial NBN fixed wireless and NBN satellite networks as intended under the legislation.
Human rights implications
The Instrument does not engage any of the applicable rights or freedoms.
Conclusion
The Instrument is compatible with human rights as it does not raise any human rights issues.