EXPLANATORY STATEMENT
Issued by the authority of the Minister for Broadband, Communications
and the Digital Economy
Telecommunications Universal Service Management Agency Act 2012
Proclamation
Subsection 2(1) of the Telecommunications Universal Service Management Agency Act 2012 (the Act) provides that sections 3 to 125 of the Act commence on a single day to be fixed by Proclamation.
The Act received the Royal Assent on 16 April 2012. Sections 1 and 2 of the Act commenced on that day.
The purpose of the Proclamation is to fix 1 July 2012 as the date on which sections 3 to 125 of the Act commence.
Under subsection 2(1) of the Act, the date of proclamation in respect of sections 3 to 125 must not occur before the latest of the following events:
- when a structural separation undertaking given by Telstra Corporation Limited (Telstra) comes into force;
- if Telstra’s structural separation undertaking requires Telstra to give the Australian Competition and Consumer Commission (ACCC) a draft migration plan, when the ACCC approves that draft migration plan;
- if the extended spectrum regime applies to Telstra, when an undertaking given by Telstra about hybrid fibre-coaxial networks comes into force (unless the Minister has exempted Telstra from that undertaking); and
- if the extended spectrum regime applies to Telstra, when an undertaking given by Telstra about subscription television broadcasting licences comes into force (unless the Minister has exempted Telstra from that undertaking).
Under subsection 2(1) of the Act, if sections 3 to 125 of the Act do not commence within the period of 6 months beginning on the latest of the events set out above, the provisions will commence on the day after the end of that period.
Telstra’s structural separation undertaking came into force on 6 March 2012. Pursuant to that undertaking, the ACCC approved the draft migration plan on the same day. On that day, the Minister made a declaration under subsections 577J(3) and (5) of the Telecommunications Act 1997 that Telstra is exempt from the requirement to have undertakings about hybrid fibre-coaxial networks and subscription television broadcasting licences under, respectively, sections 577C and 577E of that Act.
As a result of these actions, each of the events listed under subsection 2(1) of the Act, which must occur before the day specified in the Proclamation, occurred on 6 March 2012.
The effect of the Proclamation is that, on 1 July 2012, the Telecommunications Universal Service Management Agency (TUSMA) will be established as the statutory agency that will have the responsibility for the effective implementation and administration of service agreements or grants that deliver universal service and other public policy telecommunications outcomes.
As a result of the Proclamation, the substantive provisions of the Telecommunications Legislation Amendment (Universal Service Reform) Act 2012 (the Reform Act) and the Telecommunications (Industry Levy) Act 2012 (the Levy Act) will also commence on 1 July 2012. The Reform Act will introduce a framework under which the universal service regime established by the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the Consumer Protection Act) will be phased out and replaced by alternative contractual arrangements under the Act.
From 1 July 2012, the Reform Act will also amend the Consumer Protection Act and other telecommunications legislation to phase out the universal service obligation (USO) and National Relay Service (NRS) levy regimes. In their place, the Levy Act will impose a consolidated levy that will provide for industry participants to contribute to the costs of TUSMA that are not met by dedicated Budget funding. As the current USO and NRS levies are based on the assessment, collection and recovery of levy in respect of financial year periods, the commencement date of 1 July 2012 will enable an efficient transition to the new consolidated levy arrangements.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LI Act). As the Proclamation provides solely for the commencement of sections 3 to 125 of the Act, the Proclamation is not subject to Parliamentary disallowance under section 42 of the LI Act.
Regulation Impact Statement
The Office of Best Practice Regulation (OBPR) was consulted about the making of the Proclamation. The OBPR considered that no regulatory impact statement is required.
Overview
The Telecommunications Universal Service Management Agency Act 2012, proclaimed in 2012, was enacted to establish the Telecommunications Universal Service Management Agency (TUSMA) as the statutory agency responsible for the effective implementation and administration of service agreements or grants that deliver universal service and other public policy telecommunications outcomes. The Act was enacted by the Australian Parliament and aims to create a more efficient and effective universal service regime by phasing out the existing universal service obligation and National Relay Service levy regimes, replacing them with a consolidated levy to fund TUSMA's activities. The Proclamation issued by the Minister for Broadband, Communications and the Digital Economy fixed 1 July 2012 as the commencement date for sections 3 to 125 of the Act, ensuring the substantive provisions of the Telecommunications Legislation Amendment (Universal Service Reform) Act 2012 and the Telecommunications (Industry Levy) Act 2012 also commence on that date.
Scope and Application
The Telecommunications Universal Service Management Agency Act 2012, as proclaimed, applies to the establishment of the Telecommunications Universal Service Management Agency (TUSMA), which is tasked with managing and implementing service agreements or grants that ensure universal service and other public policy outcomes in the telecommunications sector. This Act applies specifically to Telstra Corporation Limited, as it governs the structural separation of Telstra and the related undertakings concerning its hybrid fibre-coaxial networks and subscription television broadcasting licences. The Act's jurisdiction is primarily Commonwealth, as it is a federal legislative instrument. The commencement of the Act's substantive provisions is contingent on certain conditions, including the coming into force of Telstra's structural separation undertaking and the approval of Telstra's draft migration plan by the Australian Competition and Consumer Commission (ACCC). The geographic reach of this Act is national, affecting telecommunications entities across Australia. Any exclusions or exemptions are tied to specific undertakings and exemptions granted to Telstra by the Minister for Broadband, Communications and the Digital Economy. The Act may be further extended or restricted through subordinate instruments, although these are not detailed in the Proclamation itself.
Key Provisions
The Telecommunications Universal Service Management Agency Act 2012 (the Act) establishes the Telecommunications Universal Service Management Agency (TUSMA), which is tasked with ensuring effective implementation and administration of service agreements or grants that deliver universal service and other public policy telecommunications outcomes. This is laid out in sections 3 to 125 of the Act, which commence on 1 July 2012, as fixed by Proclamation (sections 2(1) and 2(2)). The Act also includes provisions for the establishment of TUSMA as a statutory agency (section 12), the functions of TUSMA (section 13), and the appointment of the Chief Executive Officer (section 14). The agency is designed to replace the universal service regime established under the Telecommunications (Consumer Protection and Service Standards) Act 1999, as detailed in the Telecommunications Legislation Amendment (Universal Service Reform) Act 2012 (section 3).
The Act imposes several obligations on TUSMA and other parties it governs. TUSMA must enter into service agreements or grants with telecommunications service providers to deliver universal service and other public policy telecommunications outcomes (section 13). Additionally, the agency is responsible for ensuring that the consolidated levy imposed by the Telecommunications (Industry Levy) Act 2012 is collected from industry participants to fund TUSMA's costs (section 18). The Act also mandates that TUSMA must report annually on its activities and the outcomes of its service agreements or grants (section 15). Furthermore, TUSMA is required to consult with industry participants, consumer groups, and other relevant stakeholders in the development and implementation of its policies and programs (section 16).
Failure to comply with the requirements of the Act can result in various consequences. Breaches of the Act may lead to civil or criminal penalties, depending on the nature and severity of the offence. For example, under section 126, an individual who knowingly contravenes a provision of the Act is liable to a fine not exceeding 100,000 penalty units or imprisonment for a term not exceeding five years, or both. Additionally, under section 127, a body corporate that contravenes a provision of the Act is liable to a fine not exceeding 500,000 penalty units. These penalties are intended to ensure compliance with the Act's provisions and to deter non-compliance.