Telecommunications (Submarine Cable Permit - Application Charge) Determination 2006 (No. 2)

Administered by Department of Communications and the Arts

Legislation au F2006L01967 Not in force Legislative Instrument

Legislation content

EXPLANATORY STATEMENT

 

Issued by the Authority of the Australian Communications and Media Authority

 

Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006 (No. 2)

 

Australian Communications and Media Authority Act 2005

 

Purpose

 

The Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006 (No. 2)  (the Determination) has been made to revoke and replace the Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006 in order to remove the goods and services tax (GST) from the charges imposed by that determination.  These charges have become exempt from GST because of the A New Tax System (Goods and Services Tax) (Exempt Taxes, Fees and Charges) Determination 2006. 

 

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.

 

 

Background

 

Section 60 of the ACMA Act obliges ACMA to ensure accurate cost recovery and charging. Consequently, ACMA has adopted a rigorous Activity Based Costing (ABC) methodology to ensure the costings which underpin pricing decisions accurately and equitably attribute costs to the range of outputs which ACMA provides to clients. In ensuring its cost recovery regime is robust, ACMA has employed an external financial consultancy firm in a quality assurance role.

 

 

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 (No. 2) makes provision for expenditure on such consultants to be borne by the applicant.

 

 

Consultation

 

There was no consultation on the Determination.  The Determination is of a minor or machinery nature and does not substantially alter existing arrangements.


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 (No. 2) .

 

Section 2 Commencement

 

Section 2 provides for the commencement of the Determination on 1 July 2006.

 

Section 3 - Revocation

 

Section 3 states the determination’s predecessor, the Telecommunications (Submarine Cable Permit – Application Charges) Determination 2006 is revoked by this determination.

 

Section 4 Definition

 

Section 4 provides for definitions of terms used in the Determination.

 

Section 5 Purpose of the Determination

 

Section 5 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 6  Charges

 

Subsection 6(1) imposes the charges payable by a carrier in the Schedule to the Determination.

 

Subsection 6(2) provides that, in the event that ACMA expends more than $25,000 on  external consultants, an additional expert consultancy charge for the amount spent beyond $25,000 amount will be payable by the carrier.

 

Section 7 By whom and when are the charges payable

 

Section 7 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.  Where ACMA expends more upon external consultants than $25,000, a charge for the additional expert consultancy charge is payable upon receipt of an invoice from ACMA for that charge (subsection 6(2)).

 

Section 8 Refund

 

Section 8 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 $25,000 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.

 

Overview

The Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006 (No. 2) was enacted by the Australian Communications and Media Authority (ACMA) under the Australian Communications and Media Authority Act 2005. This Determination was introduced to address the need for updated application charges for submarine cable permits following the removal of the goods and services tax (GST) from these charges due to the A New Tax System (Goods and Services Tax) (Exempt Taxes, Fees and Charges) Determination 2006. The policy objective of this legislation is to ensure accurate cost recovery and charging for the services provided by ACMA, reflecting the rigorous Activity Based Costing (ABC) methodology employed to attribute costs to the range of outputs provided to clients. By removing GST from the charges, the Determination aims to align with the tax exemption and maintain the integrity of ACMA's cost recovery regime.

Scope and Application

The Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006 (No. 2) applies to entities or individuals seeking a non-protection zone installation permit for submarine cables intended for installation in Australian waters as mandated by Schedule 3A of the Telecommunications Act 1997. This includes carriers who need to submit an application for such permits, as the Determination outlines the charges associated with these applications. The charges are imposed under the authority of the Australian Communications and Media Authority Act 2005, specifically pursuant to subsection 60(1), which empowers the ACMA to fix charges by written instrument. The Determination applies nationally, as it pertains to the regulation and management of telecommunications infrastructure in Australia. However, it does not apply to submarine cables within protection zones or those already installed, as these are governed by different regulatory frameworks. The Determination also excludes any charges subject to GST, reflecting the changes made by the A New Tax System (Goods and Services Tax) (Exempt Taxes, Fees and Charges) Determination 2006. The scope of the Determination is further extended through subordinate instruments, which may provide additional details or modifications to the charges and conditions specified in the primary Determination.

Key Provisions

The main operative sections of the Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006 (No. 2) are set out in Sections 2 to 8. Section 2 specifies the commencement date of the Determination as 1 July 2006, while Section 3 revokes its predecessor, the Telecommunications (Submarine Cable Permit - Application Charges) Determination 2006. Section 4 provides definitions for the terms used within the Determination. Section 5 identifies the legislative basis for the Australian Communications and Media Authority (ACMA) to make determinations fixing charges, and specifies the relevant clauses within Schedule 3A of the Telecommunications Act 1997 that allow carriers to apply for non-protection zone installation permits and require an application fee. Section 6 imposes the charges payable by carriers, with a schedule listing the specific charges in detail. Section 7 details the parties responsible for paying the charges and the timing of payments, while Section 8 outlines the refund process for any unspent expert consultancy charges. The obligations and requirements imposed by the Determination on the parties governed by it are primarily related to the payment of charges. Carriers applying for a non-protection zone installation permit or an extension of such a permit must pay the charges specified in Schedule 1 to the Determination (Section 7). In cases where ACMA incurs more than $25,000 in expenses for external consultants, an additional expert consultancy charge is imposed on the carrier (Section 6(2)). If ACMA spends less than $25,000 on external consultants, the carrier is entitled to a refund of the unspent portion of the expert consultancy charge (Section 8). The Determination also imposes penalties and consequences for non-compliance. While the Determination itself does not explicitly state any specific offences, penalties, or consequences for breach, it is underpinned by the broader legislative framework, which includes provisions for penalties under the Australian Communications and Media Authority Act 2005. Failure to comply with the payment requirements could potentially lead to enforcement actions under the Act, including fines or other civil or administrative penalties as prescribed by the relevant legislation. The specific penalties would be determined in accordance with the overarching legislative provisions governing the ACMA and telecommunications regulation.

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Area of Law
Telecommunications Law
Instrument
Determination
Concepts
Definitions & Interpretation
Charges
Consultation Requirements

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