EXPLANATORY STATEMENT

Approved by the Australian Communications and Media Authority

Telecommunications (Carrier Licence Charges) Act 1997

Telecommunications (Specification of Costs by the ACMA) Determination 2017

Authority

The Telecommunications (Specification of Costs by the ACMA) Determination 2017 (the Determination) is made by the Australian Communications and Media Authority (the ACMA) under paragraphs 15(1)(a), (c) and (ca) of the Telecommunications (Carrier Licence Charges) Act 1997 (the Act).

The Act limits the total of the charges that are imposed on carrier licences in force at the beginning of a financial year.  Subsection 15(1) of the Act provides that the total of the annual carrier licence charges that are imposed on carrier licences in force at the beginning of a financial year must not exceed the sum of the amounts described in paragraphs (a) to (d), three of which are amounts determined by a written instrument made by the ACMA:

• the amount determined to be the proportion of the ACMA's costs for the immediately preceding financial year that is attributable to the ACMA's telecommunications functions and powers (paragraph 15(1)(a));

• the amount determined to be the proportion of the Commonwealth’s contribution to the budget of the International Telecommunication Union (ITU) for the calendar year in which the beginning of the financial year occurs that is to be recovered from carriers (paragraph 15(1)(c)); and

• the amount determined to be the sum of the amounts paid under section 136C of the Telecommunications Act 1997 during the immediately preceding financial year (paragraph 15(1)(ca)).

The Determination prescribes the relevant amounts under paragraphs 15(1)(a), (c) and (ca), in relation to the 2016-17 financial year.

Subsection 33(3) of the Acts Interpretation Act 1901 relevantly provides that where an Act confers a power to make a legislative instrument, the power shall be construed as including 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

The Determination has been made for the purposes of paragraphs 15(1)(a), (c) and (ca) of the Act and is relevant to determining the total of the charges that are imposed on carrier licences in force at the beginning of the 2016-2017 financial year.

For the purposes of paragraph 15(1)(a) of the Act, the Determination provides that $21 054 894 is the amount determined to be the proportion of the ACMA’s costs for the 2015-2016 financial year that is attributable to the ACMA’s telecommunications functions and powers.  This amount has been calculated in accordance with accrual-based accounting principles in line with the definition of “cost” in subsection 15(4) of the Act. 

For the purposes of paragraph 15(1)(c) of the Act, the Determination provides that $2 262 078 is the amount determined to be the proportion of the Commonwealth's contribution to the budget of the ITU for the 2016 calendar year that is to be recovered from carriers.  This amount has been calculated by apportioning the Commonwealth’s total contribution to the budget of the ITU for that calendar year between the ITU’s Radiocommunication Sector and Telecommunication Standardisation Sector.

For the purposes of paragraph 15(1)(ca) of the Act, the Determination provides that the amount determined to be the sum of the amounts paid under section 136C of the Telecommunications Act 1997 during the 2015-2016 financial year is $86 258.

The amounts determined under paragraphs 15(1)(a), (c) and (ca) of the Act are included in the formula that is used to ascertain the amount of charge imposed on a carrier licence that was in force at the beginning of the 2016-2017 financial year, in accordance with the Telecommunications (Annual Carrier Licence Charge) Determination 2017.

A provision-by-provision description of the Determination is set out in the notes in Attachment 1.

The Determination is a legislative instrument under the Legislation Act 2003 (the LA).

Documents incorporated by reference

No documents are incorporated by reference in the Determination.

Consultation

Before the Determination was made, the ACMA was satisfied that consultation was undertaken to the extent appropriate and reasonably practicable, in accordance with section 17 of the LA.

The ACMA consulted with industry stakeholders on the making of the instrument for a four-week period from 18 April 2017, inviting feedback on the proposed changes to the annual carrier licence charge determined under cost recovery arrangements.  The consultation was facilitated through the release of a consultation paper and a draft cost recovery implementation statement on the ACMA’s website.

The ACMA received one written submission in response to the consultation.  The submission did not raise any substantive issues regarding the drafting of the Determination. 

Regulation Impact Statement

On 19 February 2014, the Office of Best Practice Regulation provided a standing exemption and advised that a Regulation Impact Statement was not required for instruments in the nature of the Determination (reference number ID 2014/16581).  The Determination is covered by that exemption.

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 Legislative Instrument

The Determination is made under paragraphs 15(1)(a), (c) and (ca) of the Act. Subsection 15(1) provides that the total of the charges that are imposed on carrier licences in force at the beginning of a financial year must not exceed the sum of the amounts determined under paragraphs 15(1)(a) to (d) of the Act.

The Determination determines amounts attributable to those items in paragraphs 15(1)(a), (c) and (ca) of the Act. 

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 instrument 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.

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Attachment 1

Notes on sections of the Determination

Section 1 – Name of Determination

This section provides for the Determination to be cited as the Telecommunications (Specification of Costs by the ACMA) Determination 2017.

Section 2 – Commencement

This section states that the Determination commences at the start of the day after it is registered on the Federal Register of Legislation.

The Federal Register of Legislation may be accessed at www.legislation.gov.au

Section 3 – Authority

This section identifies the provisions of the Act that authorise the making of the Determination, namely paragraphs 15(1)(a),(c) and (ca) of the Telecommunications (Carrier Licence Charges) Act 1997.

Section 4 – Repeal of this Determination

This section provides that the Determination is repealed at the end of 30 June 2019.

Section 5 – Definition

This section states that, for the purposes of the Determination, Act means the Telecommunications (Carrier Licence Charges) Act 1997.

Section 6 – Determination of amount attributable to telecommunications functions and powers

This section determines an amount of $21 054 894 for the purposes of paragraph 15(1)(a) of the Act, being the proportion of the ACMA’s costs for the 2015–2016 financial year that is attributable to the ACMA’s telecommunications functions and powers.

Section 7 – Determination of amount of ITU contribution to be recovered

This section determines an amount of $2 262 078 for the purposes of paragraph 15(1)(c) of the Act, being the proportion of the Commonwealth’s contribution to the budget of the International Telecommunication Union for the 2016 calendar year that is to be recovered from carriers.

Section 8 – Determination of amounts paid under section 136C of the Telecommunications Act 1997

This section determines an amount of $86 258 for the purposes of paragraph 15(1)(ca) of the Act, being the amount paid under section 136C of the Telecommunications Act 1997 during the 2015–2016 financial year.