EXPLANATORY STATEMENT
Issued by the Authority of the Australian Communications and Media Authority
Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006
Australian Communications and Media Authority Act 2005
Legislative Provisions
Subsection 60(1) of the Australian Communications and Media Authority Act 2005 (the Act) provides that the Australian Communications and Media Authority (ACMA) may, by written instrument, make determinations fixing charges.
A Determination made under subsection 60(1) of the Act is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Purpose
The Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006 makes charges for considering and processing applications for the issue or extension of permits to install submarine cables outside protection zones and outside of the coastal waters of a State or Territory under Division 3 of Part 3 of Schedule 3A to the Telecommunications Act 1997 (non-protection zone installation permits), including the use of external consultants.
Background
It is government policy to recover the cost of providing services. Subsection 60(1) of the Act provides the power to levy the charge.
The Telecommunications and Other Legislation Amendment (Protection of Submarine Cables and Other Measures) Act 2005 inserted Schedule 3A into the Telecommunications Act 1997. Schedule 3A requires permits to be issued for specified new submarine cables proposed to be installed in Australian waters that connect Australia to an overseas destination. Schedule 3A came into effect on 20 September 2005.
The Explanatory Memorandum to the Telecommunications and Other Legislation Amendment (Protection of Submarine Cables and Other Measures) Act 2005 indicated the objectives of the legislation are to “provide security and reliability for the submarine cable component of Australia’s national information structure; clarify the liability for compensation; and provide increased consistency and clarity in the Commonwealth telecommunications regulatory regime”.
An application for a non-protection zone installation permit must be accompanied by the charge imposed on the application by a determination under section 60 of the Act (clause 66 of Schedule 3A).
When considering whether to grant a non-protection zone installation permit, ACMA must have regard to a number of specified considerations, including a number of environmental considerations (clauses 71 and 72 of Schedule 3A). ACMA may consult with any person it considers relevant (clause 70(b) of Schedule 3A). There may be occasions when ACMA, in order to consider matters not properly within its expertise, needs to engage external consultants to advise ACMA on those matters. Accordingly, the Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006 makes provision for expenditure on such consultants to be borne by the applicant.
Consultation
The legislation was developed over 6 years as a result of recommendations from the National Broadband Inquiry before it was approved by Parliament in August 2005. The Commonwealth consulted with key stakeholders in developing Schedule 3A. Consultations included circulation of discussion papers for comment with State and Territory Governments, Commonwealth Agencies with marine and maritime responsibilities, telecommunications carriers and cable owners, peak bodies representing fishing and other resource industries. ACMA does not envisage it will receive large numbers of applications for permits to install submarine cables and has held discussions with existing submarine cable owners and cable installers about the likely permit regime to be developed under the legislation, including the charges to be determined by ACMA.
The Office of Regulatory Review (ORR) advised that a Regulation Impact Statement (RIS) was prepared by the Department of Communications, Information Technology and the Arts at the decision making stage of Schedule 3A to which the charges relate (ORR reference 3008). Therefore the ORR has informed ACMA that a further RIS is not required for the Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006.
The Department of Finance and Administration was consulted in the preparation of the Cost Recovery Impact Statement. The basis for the calculation of the charges imposed by the Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006 are contained in this Cost Recovery Impact Statement.
The Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006 commenced the day after registration. Details of this determination are set out in Attachment 1.
ATTACHMENT 1
Notes about instrument
Section 1 Name of Determination
Section 1 provides for the citation of the Determination as the Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006 .
Section 2 Commencement
Section 2 provides for the commencement of the Determination on the day after it is registered.
Section 3 Definition
Section 3 provides for definitions of terms used in the Determination.
Section 4 Purpose of the Determination
Section 4 identifies the legislative power for ACMA to make determinations fixing charges and identifies the clauses within Schedule 3A to the Telecommunications Act 1997 allowing carriers to apply for non-protection zone installation permits and the requirement that an application for a non-protection zone installation permit be accompanied by a charge.
Section 5 Charges
Subsection 5(1) imposes the charges payable by a carrier in the Schedule to the Determination.
Subsection 5(2) provides that, in the event that ACMA expends more than $27,500 on external consultants, an additional expert consultancy charge for the amount spent beyond $27,500 amount will be payable by the carrier.
Subsection 5(3) provides that the charges are inclusive of GST,
Section 6 By whom and when are the charges payable
Section 6 provides details of by whom and when charges are payable. The charges specified in the Schedule are payable upon a carrier making an application for a non-protection zone installation permit or an application for an extension of such a permit (subsection 6(1)). Where ACMA expends more upon external consultants than $27,500, a charge for the additional expert consultancy charge is payable upon receipt of an invoice from ACMA for that charge (subsection 6(2)).
Section 7 Refund
Section 7 provides for the refund of any unspent amount of the expert consultancy charge specified in item 2 of Schedule 1 of the Determination. Accordingly, if ACMA expends less than $27,500 on external consultants, the balance will be refunded to the carrier.
Schedule 1 Charges Payable
Item [1] Non-protection zone installation permit charge
Item [1] details the application charge for the consideration and processing of an application to install a submarine cable in a non-protection zone.
Item [2] Non-protection zone expert consultancy charge
Item [2] details the charge for the use by ACMA of external consultants to assist in considering the application mentioned in item [1].
Item [3] Non-protection zone installation permit – permit extension
Item [3] details the charge to consider and process an application to extend the duration of a permit granted to install a submarine cable in a non-protection zone.