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1998-1999-2000
THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS (CONSUMER PROTECTION AND SERVICE
STANDARDS) AMENDMENT BILL (NO. 2) 2000
TELECOMMUNICATIONS
(UNIVERSAL SERVICE LEVY)
AMENDMENT BILL
2000
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the
Government
(Circulated by authority of the
Minister for Communications,
Information Technology and the Arts, Senator the
Hon. Richard Alston)
ISBN: 0642 452601
AMENDMENTS TO THE TELECOMMUNICATIONS (CONSUMER
PROTECTION AND SERVICE STANDARDS) AMENDMENT BILL (NO. 2)
2000
AMENDMENTS TO THE TELECOMMUNICATIONS (UNIVERSAL SERVICE
LEVY) AMENDMENT BILL 2000
OUTLINE
The Telecommunications (Consumer Protection and Service Standards) Amendment
Bill (No. 2) 2000 provides for the repeal and substitution of the universal
service regime in the existing Part 2 of the Telecommunications (Consumer
Protection and Service Standards) Act 1999. The Bill is fundamentally about
improving the delivery and funding of the universal service obligation (USO) and
the digital data service obligation (DDSO). It does not seek to alter the
composition of the obligations. Rather it seeks to improve service levels and
provide greater choice for consumers, by improving delivery
mechanisms.
In summary, the Bill contains mechanisms to:
§ enhance industry certainty by enabling the Minister to determine a universal service provider’s USO entitlements for up to three years in advance;
§ amend the universal service regime to improve its general operation, particularly in relation to contestability, costing and funding;
§ extend the funding base for the USO and DDSO to include carriage service providers as well as carriers;
§ undertake pilot schemes in regional Australia to trial the competitive supply of services under the USO; and
§ support a
competitive selection process to award $150 million for the provision of untimed
local calls in remote Australia with the successful tenderer subsequently
becoming the universal service provider (USP) for the area.
The
Telecommunications (Universal Service Levy) Amendment Bill 2000 amends the
Telecommunications (Universal Service Levy) Act 1997 to cover the funding
of the USO and DDSO by carriage service providers as well as carriers
(‘participating persons’) and to reflect proposed new arrangements
in relation to eligible revenue periods and claims periods.
The proposed
Government Amendments to the Telecommunications (Consumer Protection and Service
Standards) Amendment Bill (No. 2) 2000:
§ make consequential amendments and
technical amendments to correct drafting errors (Amendments (1), (2), (10),
(12), (17), (21), (23), (28) and (36));
§ make a number of determinations
disallowable instruments (Amendments (3), (4), (5), (24), (26), and
(32));
§ provide new universal service providers
and digital data service providers with extended timeframes in which to obtain
information from former providers (Amendment (6) and Amendment (16), proposed
subsections 15B(1) to (4));
§ include provisions to reflect relevant
amendments made by the Telecommunications (Consumer Protection and Service
Standards) Amendment Act (No. 1) 2000 with minor modifications where
necessary in light of the proposed new arrangements (Amendments (7), (8), (15),
(18) and (19));
§ clarify that a primary universal service
provider or a competing universal service provider for a universal service area
who fulfils their service obligation by supplying alternative telecommunications
services (ATS) in accordance with an approved ATS marketing plan will be taken
to have fulfilled any other obligation (to the extent that the other obligation
applies to the supply of ATS) that arises under the Act because of that service
obligation (Amendments (9) and (13));
§ include application and transitional
provisions and, where appropriate, modify existing transitional arrangements
contained in the Bill as introduced (Amendments (11) and
(35));
§ enable the Australian Communications
Authority (ACA) to determine transitional arrangements applying if a competing
universal service provider intends to cease fulfilling its contestable service
obligation (Amendment (14));
§ ensure that the wording of proposed new
section 15B (which requires a former digital data service provider to provide
the current provider with relevant information) is consistent with the wording
of proposed section 11B, as proposed to be amended by Amendments (6) and (7)
(Amendment (16));
§ insert a Note at the end of proposed
subsections 20(3) and 20J(5) to draw attention to the offence in section 578 of
the Telecommunications Act 1997 of making a false or misleading statement
in connection with the operation of the Act (Amendments (20) and
(27));
§ clarify that the existing eligible revenue
regulations, which have already been subject to disallowance as a disallowable
instrument, are not subject to further disallowance when deemed to be made under
the new Part (Amendment (22));
§ enable the Minister to make a written
determination modifying the requirements of subsection 20D(1) for an eligible
revenue return to be accompanied by an audit report (Amendment
(25));
§ clarifies that where a payment of a
proportion of the levy credit balance due to a person is made, the
person’s levy credit balance is reduced by the amount of the partial
payment (Amendment (29));
§ enable the ACA to disclose information to
the public about the preparation of an assessment under proposed section 20U
before the assessment has been made (Amendments (30) and
(31));
§ provide for an offence of failing to lodge
an eligible revenue return and a penalty for late payment of levy assessed under
proposed section 20U (Amendments (33) and
(34));
§ repeal section 66 of the
Telecommunications Act 1997, which has been superseded by the digital
data service obligation contained in the Telecommunications (Consumer
Protection and Service Standards) Act 1999 (Amendment (36), proposed
Schedule 3, item 2);
§ strengthen the reporting requirements
under section 105 of the Telecommunications Act 1997 (Amendment (36),
proposed Schedule 3, item 3);
§ add proposed new USO and National Relay
Service (NRS) late payment penalty remittance powers of the ACA to the list of
decisions that are subject to reconsideration by the ACA and merits review by
the Administrative Appeals Tribunal following that reconsideration (Amendment
(36), proposed Schedule 3, item 5);
§ provide for consequential and other
related amendments to Part 3 of the Telecommunications (Consumer Protection
and Service Standards) Act 1999 dealing with the NRS (Amendment (36),
proposed Schedule 3, items 10, 11, 12 and
13);
§ enable the Minister to fulfil the
requirement to provide benefits for customers outside standard zones comparable
to the untimed local call obligation under s.107 of the Telecommunications
(Consumer Protection and Service Standards) Act 1999 in a manner that takes
account of the Government’s conduct of the Untimed Local Calls Tender
(Amendment (36), proposed Schedule 3, item
14);
§ provide for a review of the proposed new
universal service regime and the customer service guarantee requirements within
3 years of the Bill receiving Royal Assent (Amendment (36), proposed Schedule 3,
item 15); and
§ facilitate the disbursement of levy for
the 1998-1999 and 1999-2000 financial years (Amendments (37) and
(38)).
The proposed Government Amendments to the Telecommunications
(Universal Service Levy) Amendment Bill 2000 make purely technical amendments to
that Bill to correct drafting errors.
The proposed Government amendments are not expected to have any
significant financial impact on Commonwealth expenditure or
revenue.
NOTES ON AMENDMENTS
TELECOMMUNICATIONS
(CONSUMER PROTECTION AND SERVICE STANDARDS) AMENDMENT BILL (No. 2)
2000
AMENDMENT (1)
As a consequence of the proposed addition of Schedules 2 and 3 to the
Bill, Amendment (1) omits subclause 2(2) of the Bill and substitutes a new
subclause 2(2) to provide that Schedules 1 to 3 (other than certain amendments
to the National Relay Service (NRS) requirements) commence, or are taken to have
commenced, on 1 July 2000.
Proposed new subclause 2(3) of the Bill
provides that items 10, 11 and 13 of Schedule 3 commence on 1 January, 1 April,
1 July or 1 October following the day on which the Bill receives Royal Assent.
This is to ensure that NRS levies for the early part of the 2000-2001 financial
year, which are calculated quarterly, do not need to be
adjusted.
Proposed Schedules 4 and 5 to the Bill are covered by subclause
2(1) of the Bill as introduced and will commence on Royal
Assent.
Proposed Schedule 2 inserted by Amendment (35) deals with
application and transitional provisions. Proposed Schedule 3 inserted by
Amendment (36) deals with consequential and other amendments to the
Telecommunications Act 1997 and the Telecommunications (Consumer
Protection and Service Standards) Act 1999. Proposed Schedule 4 inserted by
Amendment (37) facilitates levy distribution for the 1998-1999 financial year.
Proposed Schedule 5 inserted by Amendment (38) facilitates levy distribution for
the 1999-2000 financial year.
AMENDMENT (2)
As a consequence of the proposed addition of Schedules 2 to 5 to the
Bill, Amendment (2) omits the heading to Schedule 1 to the Bill and substitutes
a new heading which more accurately describes Schedule 1.
AMENDMENT (3)
Amendment (3) substitutes a new subsection 8D(5). The effect of the
amendment is that a determination under proposed new paragraph 8D(1)(b), under
which the Minister may determine a claim period other than the 2000-2001
financial year or a later financial year, will be a disallowable instrument.
Accordingly, the Minister’s determination will be required to be notified
in the Commonwealth Gazette, tabled in both Houses of Parliament within
15 sitting days of being made and will be subject to Parliamentary
scrutiny.
AMENDMENT (4)
Amendment (4) substitutes a new subsection 9A(5). The effect of the
amendment is that a determination under proposed new section 9A, under which the
Minister may determine what is or is not necessary to ensure the reasonable
accessibility of standard telephone services, payphones and prescribed carriage
services, will be a disallowable instrument. Accordingly, the Minister’s
determination will be required to be notified in the Commonwealth
Gazette, tabled in both Houses of Parliament within 15 sitting days of
being made and will be subject to Parliamentary scrutiny.
AMENDMENT (5)
Amendment (5) substitutes a new subsection 9B(4). The effect of the
amendment is that a determination under proposed new section 9B, under which the
Minister may determine what a service obligation is and what must be supplied or
done in order to fulfill a service obligation, will be a disallowable
instrument. Accordingly, the Minister’s determination will be required to
be notified in the Commonwealth Gazette, tabled in both Houses of
Parliament within 15 sitting days of being made and will be subject to
Parliamentary scrutiny.
AMENDMENT (6)
Amendment (6) repeals proposed new subsections 11B(1) and (2) as
introduced and replaces them with new provisions. In addition, Amendment (6)
inserts new subsections 11B(2A) and (2B).
Proposed section 11B, as
introduced, will require a person who has been a universal service provider
(USP) for a service area where another person is or is to become a USP to
provide the new USP with such information (such as service locations and
customer contact details) as will assist the new USP to do something required or
permitted under proposed new Part 2 of the Telecommunications (Consumer
Protection and Service Standards) Act 1999.
Proposed new subsection
11B(1), as introduced, enables a current USP to seek information from a former
USP (by way of a notice under proposed new subsection 11B(3)) in the case where
a former provider ceases to be a USP with respect to a service obligation and a
service area and the new USP commences within 6 months of that
cessation.
The proposed replacement subsection 11B(1) enables a current
USP to seek information from a former USP (by way of a notice under proposed new
subsection 11B(3)) in the case where either:
• the Minister makes a determination under
proposed new section 12A that a carrier or carriage service provider is a PUSP
with respect to a service obligation in a universal service area;
or
• the ACA approves a carrier or carriage
service provider as a CUSP under proposed new section 13B with respect to a
service obligation in a universal service area.
In the first option,
above, the Minister may be taken to have made a determination under proposed new
subsection 12A if an agreement is made under section 56 or 57 of the Telstra
Corporation Act 1991 and the agreement is expressed to have effect for the
purposes of proposed section 12E.
In addition to one of the above, the
former USP must be a person who was or is a USP with respect to the service
obligation in respect of the area who is identified by the Minister by way of a
determination made under proposed new subsection 11B(2B).
Proposed
subsection 11B(2B) enables the Minister to determine in writing that a person is
a former provider for the purposes of proposed new section 11B. The use of the
determination will enable the person from whom information can be requested to
be clearly specified. As the determination is of an administrative nature, it
is not disallowable.
Subsection 11B(2), as introduced, provides that
proposed section 11B will apply if a person (the former provider) ceases to be a
USP for a universal service area in respect of a service obligation (the
relevant area) and another person (the current provider) who, before that
cessation, was also a USP for that area in respect of that service obligation
continues after that cessation to be a USP for that area in respect of that
service obligation.
The proposed replacement subsection 11B(2) enables a
USP to seek information from a former USP (by way of a notice under proposed new
subsection 11B(3)) in the case where the former
provider:
• ceases to be a USP for a service
obligation for a service area because the Minister revokes or varies a
determination under proposed new section 12A (under which the Minister is able
to determine a person to be a PUSP) (proposed subparagraph 11B(2)(a)(i));
• ceases to be a USP for a service
obligation for a service area because the ACA revokes or varies an approval
under proposed new section 13B (under which the ACA is able to approve a person
to be a CUSP) (proposed subparagraph 11B(2)(a)(ii));
or
• otherwise ceases to be a USP for a
universal service area eg. because the former provider surrenders its carrier
licence or has that licence cancelled (proposed subparagraph
11B(2)(a)(iii)).
In addition to one of the three options above, there
must be a person who is identified as the current provider. Proposed paragraph
11B(2)(b) identifies the current provider as a person who already is and
continues to be a USP for the service obligation with respect to the area
following a revocation or variation outlined in proposed subparagraphs
11B(2)(a)(i) or (ii), or following the cessation outlined in proposed
subparagraph 11B(2)(a)(iii).
Proposed subsection 11B(2A) enables proposed
subsections 11B(1) and (2) to apply before a determination, revocation or
variation under proposed new section 12A; or an approval, revocation or
variation under proposed new section 13B takes effect. This means that a notice
under proposed new subsection 11B(3) can be issued if the determination,
approval or change to approval relevant to proposed subsections 11B(1) and (2)
has been made or given, but has not yet taken effect. An example of such a case
may be where the Minister makes a determination of a PUSP under proposed new
section 12A. If this determination were expressed to commence 3 months after
being made, then the person who was determined to be a PUSP would be able to
request information from the former provider in this 3 month period (as well as
for 6 months after that time under proposed subsection 11B(3)).
AMENDMENT (7)
Amendment (7) adds proposed new subsections 11B(6A) and (6B). These new
subsections are modeled on subsections 24A(5A) to (5C) of the
Telecommunications (Consumer Protection and Service Standards) Act 1999
which were inserted by item 19 of Schedule 1 to the Telecommunications
(Consumer Protection and Service Standards) Amendment Act (No. 1)
2000.
Proposed section 11B will require a person who has been a
universal service provider (USP) for a service area where another person is or
is to become a USP to provide the new USP with such information (such as service
locations and customer contact details) as will assist the new USP to do
something required or permitted under proposed new Part 2 of the
Telecommunications (Consumer Protection and Service Standards) Act 1999.
Proposed subsection 11B(3) enables the current USP to give the former
USP a notice requiring the former USP to give the current USP specified
information.
The effect of new subsections 11B(6A) and (6B) is that if a
former USP has been given notice under subsection 11B(3), the ACA will be able
to direct the former USP to comply with a requirement in the notice or with
specified aspects of the requirement. The former USP will be required to comply
with the ACA’s direction. In deciding whether to give a direction, the
ACA will be required to consider whether a requirement under subsection 11B(3)
is reasonable. If the ACA is of the opinion that such a requirement is
unreasonable, it will not be appropriate for it to issue a direction under
proposed subsection 11B(6A).
AMENDMENT (8)
Amendment (8) omits proposed subsection 12A(4) contained in the Bill as
introduced and substitutes a new subsection 12A(4). The proposed new subsection
12A(4) is modelled on subsection 20(2A) of the Telecommunications (Consumer
Protection and Service Standards) Act 1999 which was inserted by item 6 of
Schedule 1 to the Telecommunications (Consumer Protection and Service
Standards) Amendment Act (No. 1) 2000.
Proposed section 12A enables
the Minister to determine that a specified carrier or carriage service provider
is the primary universal service provider (PUSP) for a universal service area in
respect of a service obligation. Proposed subsection 12A(4) contained in the
Bill as introduced provides that in deciding whether to make such a
determination the Minister is not limited to considering only the
carrier’s or carriage service provider’s ability to provide the
services required to be provided to fulfil the service obligation
concerned.
In response to concerns about the breadth of the
Minister’s discretion, Amendment (8) limits the Minister’s
discretion to considering factors that are relevant to achieving the objects of
the Act (set out in section 3 of the Act and see also proposed section 8A).
AMENDMENT (9)
Amendment (9) inserts proposed new subsection 12C(1A) into proposed
section 12C, which deals with the obligations of primary universal service
providers (PUSPs).
Amendment (9) is intended to clarify the obligations
of PUSPs in supplying an alternative telecommunications service (ATS), in
particular that:
• the supply of an ATS does not affect other
obligations applying under the Act to the supply of standard services in
fulfilment of the USO under an approved standard marketing plan; and
• those obligations do not apply in relation to the supply of an ATS in fulfilment of the USO, under an approved ATS marketing plan.
These arrangements are to ensure that consumers always have the benefit of
standard USO services, together with associated obligations, as well as the
range of service options that ATS can offer.
Amendment (9) (proposed
subsection 12C(1A)) should be read in conjunction with Amendment (13) (proposed
subsection 13D(2)).
Proposed Subdivision D of Division 5 enables a PUSP
to seek the ACA’s approval of a marketing plan to supply ATS in fulfilment
of the USO. The marketing plan must, in the ACA’s view, appropriately
deal with relevant matters. The ACA must be satisfied the ATS will
appropriately fulfil the USO (proposed subsection 12T(2)). Marketing plans will
be a key regulatory tool under Part 2. An approved ATS marketing plan for a
PUSP is a draft ATS marketing plan that has been approved by the ACA and that is
in force (proposed subsection 12P(2)). A PUSP is also required to always offer
standard services, as described in the Act, in fulfilment of the USO, under an
approved standard marketing plan.
Amendment (9) will ensure that if a
PUSP supplies an ATS in accordance with its approved ATS marketing plan, it will
not be required, in supplying the ATS, to fulfil any other obligation that
arises under the Act because of its universal service obligation. Proposed new
subsection 12C(1A) does this by providing that those obligations are taken to
have been fulfilled. The obligations that are taken to be fulfilled can only be
obligations arising under the Telecommunications (Consumer Protection and
Service Standards) Act. It is intended that those obligations can only be
obligations that derive from the person being subject to the USO. In
particular, it is intended that a person supplying an ATS in fulfilment of the
USO not be subject to the obligation to offer the option of untimed local calls,
which would otherwise apply to any standard telephone service, regardless of the
delivery platform, supplied in fulfilment of the USO (see s.106 of the Act).
Other obligations generally applying to the supply of telecommunications
services, for example, those arising under the Telecommunications Act
1997, for example, in relation to membership of the Telecommunications
Ombudsman scheme (Part 10), preselection (Part 17) and number portability
(section 458) are not negated under the proposed provision. They would continue
to apply to ATS supplied in fulfilment of the USO.
Where a PUSP supplies
services under a standard marketing plan in fulfilment of the USO, the fact that
it is also supplying an ATS does not affect the application of other obligations
applying to the supply of services under the standard marketing plan. All
obligations that derive from a person being subject to the USO are intended to
continue to apply in relation to the supply by that person of standard services
in fulfilment of the USO under a standard marketing plan. This would include,
for example, the obligation to offer the option of untimed local calls.
AMENDMENT (10)
Proposed subsection 12D(1), as introduced, provides that until a primary
universal service provider (PUSP) is, or is taken to be, determined for the
first time in respect of a service obligation for a universal service area, the
Minister will be taken to have made a determination under proposed section 12A
that Telstra is the PUSP for that area in respect of that service
obligation.
Amendment (10) substitutes a new subsection 12D(1) which
clarifies the operation of the proposed subsection.
The proposed new
subsection 12D(1) provides that until either a determination of a PUSP under
section 12A or a deemed determination of a PUSP under section 12E takes effect
for the first time for a universal service area in respect of a service
obligation, the Minister is taken to have made a determination under section 12A
that Telstra is the primary universal service provider for that area in respect
of that service obligation. New subsection 12D(1) makes it clear that Telstra
is the PUSP for a service area in respect of an obligation until the
determination of another PUSP takes effect, rather than when the determination
is made or deemed to be made.
The deemed determination of Telstra as the
PUSP provided for in proposed subsection 12D(1) takes effect from the
commencement of the proposed section, namely 1 July 2000.
AMENDMENT (11)
Amendment (11) omits proposed section 12N which gives transitional operation
to Telstra’s approved universal service plan in force immediately before 1
July 2000.
Item 6 in proposed Schedule 2 to the Bill (see Amendment (35))
will give transitional operation to any approved universal service plan (whether
of Telstra or another universal service provider) in force immediately before
this Bill receives Royal Assent. This is to cover the possibility that carriage
service providers apart from Telstra may have had a universal service plan
approved by the ACA before Royal Assent.
AMENDMENT (12)
Amendment (12) makes a technical correction to proposed subsection
13C(5). It replaces the incorrect reference in that provision to
‘subsection (1)’ with the correct reference to ‘subsection
(4)’.
AMENDMENT (13)
Proposed section 13D deals with the obligations of competing universal
service providers (CUSPs). Amendment (13) omits proposed subsection 13D(2) from
the Bill as introduced and replaces it with a proposed new subsection
13D(2).
Amendment (13) is intended to clarify the obligations of CUSPs in
supplying an alternative telecommunications service (ATS), in particular
that:
• the supply of an ATS does not affect other obligations
applying under the Act to the supply of standard services in fulfilment of the
USO under an approved standard marketing plan; and
• those obligations do not apply in relation to the supply of an ATS in fulfilment of the USO, under an approved ATS marketing plan.
Amendment (13) (proposed subsection 13D(2)) should be read in conjunction
with Amendment (9) (proposed subsection 12C(1A)).
Proposed Subdivision D of Division 6 enables a CUSP to seek the
ACA’s approval of a marketing plan to supply ATS in fulfilment of a
contestable service obligation. The marketing plan must, in the ACA’s
view, appropriately deal with relevant matters (proposed subsection 13Q(2)).
The ACA must be satisfied the ATS will appropriately fulfil the relevant
contestable service obligation. Marketing plans will be a key regulatory tool
under Part 2. An approved ATS marketing plan for a CUSP is a draft ATS
marketing plan that has been approved by the ACA and that is in force (proposed
subsection 13M(2)). (CUSPs may also offer standard services in fulfilment of
the USO. PUSPs must always offer standard services, but may also offer
ATS.)
Amendment (13) will ensure that if a CUSP supplies an ATS in
accordance with its approved ATS marketing plan, it will not be required, in
supplying the ATS, to fulfil any other obligation that arises under the Act
because of its universal service obligation. Proposed new subsection 13D(2)
does this by providing that those obligations are taken to have been fulfilled.
The obligations that are taken to be fulfilled can only be obligations arising
under the Telecommunications (Consumer Protection and Service Standards) Act.
It is intended that those obligations can only be obligations that derive from
the person being subject to the USO. In particular, it is intended that a
person supplying an ATS in fulfilment of the USO not be subject to the
obligation to offer the option of untimed local calls, which would otherwise
apply to any standard telephone service, regardless of the delivery platform,
supplied in fulfilment of the USO (see s.106 of the Act).
Other
obligations generally applying to the supply of telecommunications services, for
example, those arising under the Telecommunications Act 1997, for
example, in relation to membership of the Telecommunications Ombudsman scheme
(Part 10), preselection (Part 17) and number portability (section 458) are not
negated under the proposed provision. They would continue to apply to ATS
supplied in fulfilment of the USO.
A CUSP may also choose to supply
standard services, as described in the Act, in fulfilment of the USO under an
approved standard marketing plan. However, where a CUSP also supplies services
under a standard marketing plan in fulfilment of the USO, the fact that it is
also supplying an ATS does not affect the application of any other obligations
applying to the supply of services under the approved standard marketing plan,
even if the obligations apply solely because the person is subject to the
USO.
AMENDMENT (14)
Amendment (14) omits proposed subsection 13E(3) as contained in the Bill
and replaces it with a new subsection 13E(3).
Proposed section 13E
enables a CUSP for a universal service area in respect of a contestable service
obligation to notify the ACA at any time that the provider intends to cease
fulfilling that obligation in so far as it relates to that area.
New
subsection 13E(3), as proposed to be inserted by Amendment (14), will enable the
ACA to determine not only the date on which the CUSP’s approval as a CUSP
for that area in respect of that obligation will cease, but also modify the
application of the CUSP’s obligations under proposed section
13D.
An example of a case where this provision may be used is where,
during the period that a CUSP is withdrawing from the market, the CUSP would be
required to continue to serve existing USO customers until they are transferred
to another USP, but not take on any new USO customers.
AMENDMENT (15)
Amendment (15) omits proposed subsection 15(3) contained in the Bill as
introduced and substitutes a new subsection 15(3). The proposed new subsection
15(3) is modelled on subsection 26A(2A) of the Telecommunications (Consumer
Protection and Service Standards) Act 1999 which was inserted by item 34 of
Schedule 1 to the Telecommunications (Consumer Protection and Service
Standards) Amendment Act (No. 1) 2000.
Proposed section 15 enables
the Minister to determine that a specified carrier or carriage service provider
is a general digital data service provider for a specified general digital data
service area or a special digital data service provider for a specified special
digital data service area. Proposed subsection 15(3) contained in the Bill as
introduced provides that in deciding whether to make such a determination the
Minister is not limited to considering only the carrier’s or carriage
service provider’s suitability to provide the service required to fulfil
the general or special digital data service obligation (as the case
requires).
In response to concerns about the breadth of the
Minister’s discretion, Amendment (15) limits the Minister’s
discretion to considering factors that are relevant to achieving the objects of
the Act ( set out in section 3 of the Act and see also proposed section 8A).
AMENDMENT (16)
Amendment (16) omits proposed section 15B as contained in the Bill as
introduced and replaces it with a new section 15B. The purpose of Amendment
(16) is to make the wording of proposed new section 15B consistent with the
wording of proposed section 11B, as proposed to be amended by Amendments (6) and
(7).
Proposed new section 15B will require a person who has been a
digital data service provider (DDSP) for a service area where another person has
become a DDSP to provide the new DDSP with such information (for example,
service locations and customer contact details) as will assist the new DDSP to
fulfil its digital data service obligation (DDSO) and is requested by the new
DDSP to do something required or permitted under new Part 2 of the Act or as is
determined by the Minister.
Proposed subsection 15B(1) enables a current
DDSP to seek information from a former DDSP (by way of a notice under proposed
new subsection 15B(5)) in the case where:
• the Minister makes a determination under
proposed new section 15 that a carrier or carriage service provider is a DDSP
for a particular area; and
• the Minister
determines in writing (under proposed subsection 15B(4)) that another person,
who is or was a DDSP for some or all of the relevant area, is a former
DDSP.
Proposed subsection 15B(2) enables a current DDSP to seek
information from a former DDSP (by way of a notice under proposed new subsection
15B(5)) in the case where the former DDSP either ceases to be a DDSP for a
digital data service area because the Minister revokes or varies a determination
under proposed section 15 (under which the Minister is able to determine a
person to be a DDSP) (proposed subparagraph 15B(2)(a)(i)) or otherwise ceases to
be a DDSP for a particular area eg. because the former DDSP surrenders its
carrier licence or has that licence cancelled (proposed subparagraph
15B(2)(a)(ii)).
In addition, there must be a person who is identified as
the current provider. Proposed paragraph 15B(2)(b) identifies the current
provider as a person who continues to be a DDSP for some or all of the relevant
area following a revocation or variation outlined in proposed subparagraph
15B(2)(a)(i) or following the cessation outlined in proposed subparagraph
15B(2)(a)(iii).
Proposed subsection 15B(3) enables proposed subsections
15B(1) and (2) to apply before a determination, revocation or variation under
proposed section 15 takes effect.
This means that a notice under proposed
new subsection 15B(5) can be issued if the determination, approval or change to
approval relevant to proposed subsections 15B(1) and (2) has been made or given,
but has not yet commenced.
An example of such a case may be where the
Minister made a determination of a DDSP under proposed section 15 and this was
expressed to commence 3 months after being made. In such a case, the person who
was determined to be a DDSP would be able to request information from the former
provider in this 3 month period (as well as for 6 months after that time under
proposed new section 15B(5)).
Proposed subsection 15B(5) enables the
current provider to give the former provider a notice requiring the former
provider to give the current provider specified information. If proposed
subsection 15B(1) applies, the notice must be given within 6 months of the
current provider becoming a DDSP for the relevant area or the day on which the
determination under proposed subsection 15B(1) or (2) was made. If proposed
subsection 15B(2) applies, the notice must be given within 6 months of the day
of the former provider ceasing to be a DDSP for the relevant
area.
Proposed subsection 15B(6) provides that the information that may
be required to be given must be information that will assist the current
provider in doing something that the current provider is required or permitted
to do by or under a provision of new Part 2 of the Act. The notice must
identify the doing of that thing as the purpose for which the information is
required.
Proposed subsection 15B(7) provides that the former provider
will be required to comply with a requirement made by a notice under proposed
subsection 15B(5), if it is reasonable, as soon as practicable after receiving
the notice. If the requirement is unreasonable, the former provider will not
have to comply with it.
Proposed subsection 15B(8) allows the Minister to
make a written determination the effect of which will be to require the
provision as such information as the Minister considers is necessary to the new
DDSP’s performance of its role as DDSP. Any such determination will have
effect accordingly.
The effect of new subsections 15B(9) and (10) is that
if a former DDSP has been given notice under subsection 15B(5), the ACA will be
able to direct the former DDSP to comply with a requirement in the notice or
with specified aspects of the requirement. The former DDSP will be required to
comply with the ACA’s direction. In deciding whether to give a direction,
the ACA will be required to consider whether a requirement under subsection
15B(5) is reasonable. If the ACA is of the opinion that such a requirement is
unreasonable, it will not be appropriate for it to issue a direction under
proposed subsection 15B(9).
Proposed subsection 15B(11) provides that a
Ministerial determination under proposed subsection 15B(8) is a disallowable
instrument which accordingly must be notified in the Commonwealth
Gazette, tabled in the Parliament within 15 sitting days of being made
and is subject to Parliamentary disallowance.
Paragraph 280(1)(b) of the
Telecommunications Act 1997 will allow information to be disclosed as
required by proposed section 15B but the person to whom the information is given
will still be bound by Part 13 of that Act dealing with the protection of
communications.
The purpose of these provisions is to facilitate the
smooth operation of the DDSO regime, particularly where there is a change in
DDSP, by ensuring new DDSPs have access to appropriate information (compare with
Part 4, Schedule 1 to the Telecommunications Act 1997).
It is
envisaged that a former provider would advise its DDSO customers of any
disclosure of information, if necessary, pursuant to these provisions (for
example, as part of its billing activities). Consideration would be given to
drafting subordinate legislation to this effect if necessary.
AMENDMENT (17)
Amendment (17) corrects a drafting error in proposed paragraph 15H(1)(a)
by replacing the reference to ‘plan’ with a reference to
‘draft plan’.
AMENDMENT (18)
Amendment (18) will require the Minister, in deciding whether to approve
a draft digital data service plan for a general digital data service area or a
special digital data service area, to have regard, apart from the matters
specified in proposed paragraphs 15H(1)(a) and (b), to whether the draft plan
meets the needs of people with a disability.
This amendment is based on
paragraph 32(1)(aa) of the Telecommunications (Consumer Protection and
Service Standards) Act 1999 inserted by item 51A of Schedule 1 to the
Telecommunications (Consumer Protection and Service Standards) Amendment Act
(No. 1) 2000. The amendment made by item 51B of Schedule 1 to that Act to
define the term ‘disability’ is not necessary in light of proposed
section 8G in the Bill as introduced. That section provides that in proposed
new Part 2 the term ‘disability’ will have the same meaning as in
the Disability Discrimination Act 1992.
AMENDMENT (19)
Amendment (19) replaces proposed section 16A contained in the Bill as
introduced with a new section 16A to reflect subsections 57(1F) to (1J) of the
Telecommunications (Consumer Protection and Service Standards) Act 1999
inserted by item 70 of Schedule 1 to the Telecommunications (Consumer
Protection and Service Standards) Amendment Act (No. 1)
2000.
Proposed section 16A in the Bill as introduced allows the
Minister to seek the advice of the ACA in relation to the Minister’s
determination of universal service subsidies under proposed section
16.
Proposed new section 16A will generally require the Minister to
direct the ACA to give the Minister advice about a proposed determination or a
proposed variation of a determination under section 16 before making or varying
such a determination. However, the Minister will not be required to do this
where a proposed variation is of a minor technical nature (proposed new
subsection 16A(1)).
The ACA will be required to comply with such a
direction from the Minister (proposed new subsection 16A(2)).
The
Minister, as a matter of course, would consider advice provided by the ACA about
a proposed determination or variation. If the Minister does not make a
determination or variation in accordance with the ACA’s advice, the
Minister will be required to ensure that a notice of his or her reasons for
departing from the advice is published in the Commonwealth Gazette within
14 days after making the determination or variation and is tabled in Parliament
within 5 sitting days after making the determination or variation (proposed new
subsection 16A(3)).
While a determination of such importance would, in
other circumstances, be subject to Parliamentary disallowance, that path has not
been followed in this instance. The Senate, in debating the issue in the
context the passage of the Telecommunications (Consumer Protection and
Service Standards) Amendment Act (No. 1) 2000, found that disallowance would
be inappropriate and would generate serious practical problems. If the
disallowance of a determination under proposed subsection 16(1) did occur, the
Minister would have to make another determination, but would possibly not be
able to do so within 6 months (see sections 46A and 49 of the Acts
Interpretation Act 1901). In the interim, the USPs would have no certainty
about the subsidy they would receive for the services they were currently
providing.
The requirement for the Minister to seek the ACA’s views
under proposed new subsection 16A(1) will not, by implication, limit the
Minister’s powers under section 486 of the Telecommunications Act
1997 to direct the ACA to hold a public inquiry about a specified matter
relating to telecommunications (proposed new subsection 16A(4)).
AMENDMENT (20)
Amendment (20) inserts a note at the end of proposed subsection 20(3) to
draw attention to the offence in section 578 of the Telecommunications Act
1997 of making a false or misleading statement in connection with the
operation of the Act. This offence also applies to a false or misleading
statement made in connection with the operation of the Telecommunications
(Consumer Protection and Service Standards) Act 1999.
Proposed
section 20 requires a participating person for an eligible revenue period to
give the ACA a written return of the person’s eligible revenue for that
period.
Section 578 of the Telecommunications Act 1997 provides
that a person who intentionally or recklessly makes a false or materially
misleading statement, or gives false or materially misleading information, to an
ACA employee or delegate exercising or performing functions relating to the
regulation of telecommunications matters will be guilty of offence punishable on
conviction by a maximum fine, in the case of an individual, of 100 penalty units
or, in the case of a body corporate, 500 penalty units (under s. 4AA of the
Crimes Act 1914, a penalty unit is worth $110 – see also s. 4B(3)
of that Act).
This offence does not apply where the ACA employee or
delegate is exercising or performing the ACA’s information-gathering
functions or powers under Part 27. This is because sections 525 and 526 provide
for offences for the giving of false or misleading information or evidence or
the provision of false or misleading documents in connection with a notice given
under that Part.
AMENDMENT (21)
Amendment (21) makes a technical correction to the definition of
‘participating person’ in proposed section 20A. This definition
currently applies only for the purposes of new Part 2 of the Act. As a result
of proposed new section 99 of the Act (see Amendment (36), item 10 of proposed
Schedule 3 to the Bill), the term ‘participating person’ will also
be used in Part 3 of the Act dealing with the National Relay Service.
To
ensure that this definition will apply for the purposes of both Parts 2 and 3
and for the purposes of the Act generally, Amendment (21) omits
‘Part’ from subsection 20A(1) and substitutes
‘Act’.
AMENDMENT (22)
Proposed section 20B provides that the ‘eligible revenue’ of
a participating person for an eligible revenue period is the eligible revenue of
the participating person for that period in accordance with a determination made
in writing by the ACA.
Proposed subsection 20B(3) continues the operation
of the Telecommunications Universal Service Obligation (Eligible Revenue)
Regulations 1998 (SR No. 180 of 1998). This is deemed to be an ACA
determination under proposed subsection 20B(1).
Proposed subsection
20B(4) as contained in the Bill provides that a determination under section 20B
is a disallowable instrument.
Amendment (22) amends proposed subsection
20B(4) to make it clear that the existing eligible revenue regulations preserved
by proposed subsection 20B(3), which have already been subject to disallowance,
are not subject again to disallowance.
AMENDMENT (23)
Amendment (23) makes a technical correction to the definition of
‘eligible revenue period’ in proposed section 20C. This definition
currently applies only for the purposes of new Part 2 of the Act. As a result
of proposed new section 99 of the Act (see Amendment (36), item 10 of proposed
Schedule 3 to the Bill), the term ‘eligible revenue period’ will
also be used in Part 3 of the Act dealing with the National Relay
Service.
To ensure that this definition will apply for the purposes of
both Parts 2 and 3 and for the purposes of the Act generally, Amendment (23)
omits ‘Part’ from subsection 20C(1) and substitutes
‘Act’.
AMENDMENT (24)
Amendment (24) substitutes a new subsection 20C(3). The effect of the
amendment is that a determination under proposed new paragraph 20C(1)(b), under
which the Minister may determine an eligible revenue period other than the
1999-2000 financial year or a later financial year, will be a disallowable
instrument. Accordingly, the Minister’s determination will be required to
be notified in the Commonwealth Gazette, tabled in both Houses of
Parliament within 15 sitting days of being made and will be subject to
Parliamentary scrutiny.
AMENDMENT (25)
Amendment (25) omits proposed subsection 20D(2) and substitutes new
subsections analogous to proposed subsections 20K(2) to (4).
Proposed
subsection 20D(1) requires as a general rule, that the eligible revenue return
of a participating person for an eligible revenue period given to the ACA under
proposed section 20 be accompanied by a report of an approved auditor. However,
proposed subsection 20D(2) contained in the Bill as introduced allows the ACA to
exempt a person from the application of proposed section 20D.
Proposed
new subsection 20D(2) will enable the Minister to make a written determination
modifying the requirements of subsection 20D(1), including by omitting, adding
or substituting requirements. This determination is not a disallowable
instrument because it is administrative in character. A copy of the
determination will, however, be required to be published in the Commonwealth
Gazette (proposed new subsection 20D(4)).
Proposed new subsection
20D(3) continues the effect of proposed subsection 20D(2) contained in the Bill
as introduced. This will allow the ACA to exempt a person from the application
of proposed section 20D.
AMENDMENT (26)
Amendment (26) substitutes a new subsection 20F(4). The effect of the
amendment is that a determination under proposed new subsection 20F(2), under
which the Minister may determine an eligible revenue threshold amount in
relation to payment of levy, will be a disallowable instrument. Accordingly,
the Minister’s determination will be required to be notified in the
Commonwealth Gazette, tabled in both Houses of Parliament within 15
sitting days of being made and will be subject to Parliamentary
scrutiny.
AMENDMENT (27)
Amendment (27) inserts a note at the end of proposed subsection 20J(5) to
draw attention to the offence in section 578 of the Telecommunications Act
1997 of making a false or misleading statement in connection with the
operation of the Act. This offence also applies to a false or misleading
statement made in connection with the operation of the Telecommunications
(Consumer Protection and Service Standards) Act 1999.
Proposed
section 20J enables a person that is a universal service provider or a digital
data service provider for a claim period to submit a claim for levy
credit.
Section 578 of the Telecommunications Act 1997 provides
that a person who intentionally or recklessly makes a false or materially
misleading statement, or gives false or materially misleading information, to an
ACA employee or delegate exercising or performing functions relating to the
regulation of telecommunications matters will be guilty of offence punishable on
conviction by a maximum fine, in the case of an individual, of 100 penalty units
or, in the case of a body corporate, 500 penalty units (under s. 4AA of the
Crimes Act 1914, a penalty unit is worth $110 – see also s. 4B(3)
of that Act).
This offence does not apply where the ACA employee or
delegate is exercising or performing the ACA’s information-gathering
functions or powers under Part 27. This is because sections 525 and 526 provide
for offences for the giving of false or misleading information or evidence or
the provision of false or misleading documents in connection with a notice given
under that Part.
AMENDMENT (28)
Amendment (28) is consequential on proposed section 23D to be inserted by
Amendment (34). Amendment (28) will require amounts equal to amounts of late
payment levy paid from time to time under proposed section 23D be credited to
the Universal Service Account. The intention is that such penalty payments may
be used to compensate persons with a levy credit balance who are disadvantaged
by late payment of levy or to reduce the total levy credit balance. It is
envisaged that such an adjustment would be implemented by way of the
Minister’s ability to modify the formula in proposed new section
20R.
AMENDMENT (29)
Amendment (29) clarifies that where a payment of a proportion of the levy
credit balance due to a person is made, for example, under proposed new
subsection 21C(4), the person’s levy credit balance is reduced by the
amount of the partial payment (proposed new subsection 21C(6)).
Under
proposed new subsection 21C(7), a person’s levy credit balance is reduced
by the partial payment until the person’s balance is nil.
AMENDMENTS (30) AND (31)
Amendments (30) and (31) amend proposed section 22, which deals with the
ability of the public to request the ACA to provide information about an
assessment under proposed section 20U.
As currently worded, proposed
section 22 only permits the disclosure of information after an assessment has
been made, rather than allowing disclosure before an assessment has been made.
Amendments (30) and (31) amend proposed section 22 to enable the disclosure of
information that may be used in the preparation of an assessment, that is, in
advance of an assessment being made. The aim of the amendment is to enhance
access to information relevant to the preparation of assessments, with a view to
enhancing industry and public scrutiny.
AMENDMENT (32)
Amendment (32) provides that a notice under proposed new subsection
22C(2), under which the Minister may give a written notice to a carrier or a
carriage service provider requesting information, will be a disallowable
instrument. Accordingly, the Minister’s notice will be required to be
notified in the Commonwealth Gazette, tabled in both Houses of Parliament
within 15 sitting days of being made and will be subject to Parliamentary
scrutiny.
AMENDMENT (33)
Amendment (33) provides for an offence of failing to lodge an eligible
revenue return (proposed section 23C).
The effect of proposed subsection
23C(1) is that a participating person for an eligible revenue period will be
guilty of an offence if the person fails to lodge an eligible revenue return
with the ACA as required by proposed section 20 and the ACA has not made an
assessment under proposed section 20U that includes an estimate of the
person’s eligible revenue for the eligible revenue period (see proposed
section 20G).
The maximum penalty for this offence will be 50 penalty
units in the case of an individual and 250 penalty units in the case of a body
corporate (see subsection 4B(3) of the Crimes Act 1914). A penalty unit
is currently worth $110 (see section 4AA of the Crimes Act
1914).
Note 1 under proposed subsection 23C(1) indicates that Chapter
2 of the Criminal Code sets out the general principles of criminal
responsibility. The Criminal Code is contained in the Schedule to the
Criminal Code Act 1995, which was enacted as part of the development of a
nationwide uniform criminal code. Among other things, Chapter 2 of the
Criminal Code sets out the elements of an offence, the general principles
of corporate criminal responsibility, offences which deal with extensions of
criminal responsibility (eg. attempt and conspiracy) and the proof of criminal
responsibility. While Chapter 2 of the Criminal Code does not apply to
all existing Commonwealth offences until on and after 15 December 2001, the Code
is being applied to all new legislation which contains offences, to ensure that
they are consistent with the Code once it comes into operation.
The
offence in proposed subsection 23C(1) will be a strict liability offence. It
will therefore not be necessary for the prosecution to prove any fault element
(such as intention, knowledge, recklessness or negligence) for any of the
physical elements of the offence (such as the failure of the participating
person to lodge the eligible revenue return). The defence of honest and
reasonable mistake of fact will, however, be available. Similar principles will
apply under section 6.1 of the Criminal Code once it comes into
operation.
The intention of this approach is to impress upon
participating persons the importance ascribed to the lodgment of returns, given
their integral role in the USO funding process and the need for participating
persons to take the utmost care in ensuring that they fulfill their
obligations.
Proposed subsection 23C(2) provides that a person who is
guilty of an offence under proposed subsection 23C(1) is guilty of a separate
offence in respect of each day on which the failure continues (including the day
of a conviction for the offence or any later day). Proposed subsection 23C(3)
provides that section 583 of the Telecommunications Act 1997 (which
provides that the maximum penalty for each day that an offence continues is 10%
of the maximum penalty that could be imposed in respect of the principal
offence) does not apply to an offence under proposed subsection 23C(1).
Accordingly, the maximum penalty for the continuing offence under proposed
subsection 23C(2) will be 50 penalty units per day in the case of an individual
and 250 penalty units day in the case of a body corporate.
AMENDMENT (34)
Amendment (34) provides a penalty for late payment of levy assessed under
proposed section 20U (proposed section 23D). Proposed section 23D is modelled
on the late payment penalty provisions in relation to carrier licence charges
under section 73 of the Telecommunications Act 1997.
If any amount
of levy assessed under proposed section 20U that is payable by a person remains
unpaid after the day by which it must be paid, the person is liable to a penalty
on the unpaid amount for each day until all of the levy has been paid (proposed
subsection 23D(1)).
The penalty rate is 20% per year, or such lower
rate as the ACA determines in writing for the purposes of proposed section 23D
(proposed subsection 23D(2)). The ACA may remit the whole or part of a penalty
that is required to be paid under proposed new subsection 23D(2) (proposed
subsection 23D(3)). Amendment (36), item 5 of proposed Schedule 3, provides
that a decision to remit a penalty is reviewable under section 555 of the
Telecommunications Act 1997.
As any ACA determination under
proposed new subsection 23D(2) will be a disallowable instrument (see proposed
subsection 23D(8)) it will be required to be published in the Commonwealth
Gazette, tabled in both Houses of Parliament within 15 sitting days of
being made and will be subject to Parliamentary disallowance.
The penalty
for a day will be due and payable to the ACA at the end of that day and will be
able to be recovered by the ACA, on behalf of the Commonwealth, as a debt due to
the Commonwealth (proposed subsection 23D(4)).
Amounts of penalty
received will be required to be paid into the Consolidated Revenue Fund
(proposed subsection 23D(5)). Amendment (28) provides for amounts equal to
amounts of penalty to be paid under proposed new section 23D to be paid into the
Universal Service Account (see also commentary in relation to Amendment
(28)).
If the amount of the penalty is not an amount of whole dollars,
the penalty will be rounded to the nearest dollar (with any amount of 50 cents
being rounded upwards) (proposed subsection 23D(6)).
The ACA will be
required to notify a person in writing as soon as practicable after the person
fails to pay an amount of levy by the time by which it must be paid. However,
any failure of the ACA to do so will not affect the person’s liability
(proposed subsection 23D(7)).
AMENDMENT (35)
Amendment (35) inserts a new Schedule 2 containing application and
transitional provisions.
Item 1 of Schedule 2 to the Bill preserves the operation of the current
universal service regime in relation to the 1999-2000 financial year. This
means that decisions that relate to the 1999-2000 financial year that have not
yet been made may be made using the provisions that were in place during that
year.
Subitem 2(1) of Schedule 2 to the Bill provides that things (other than
things covered by item 3) done under or for the purposes of a provision of the
current universal service regime will be taken to have been done under or for
the purposes of a later corresponding provision under the new regime. This will
cover matters such as the lodgment of a draft digital data service plan under
section 40A that has not been dealt with yet, the Minister’s approval of
the draft plan under section 40D, an assessment under 64 or a request for
information under section 71 of the current Act that has not been dealt with
yet.
Subitem 2(2) provides that if the thing would have been done by
another person or body had it been done after 1 July 2000, then it will be taken
to have been done by that other person or body for the purposes of the proposed
new universal service regime. This is to deal with the transfer of some of the
powers under the current universal service regime from the Minister to the
ACA.
Item 3 preserves the operation of existing instruments made, or given
under, or for the purposes of the current universal service regime. These
instruments will have effect after 1 July 2000 as if they had been made, or
given under, or for the purposes of an equivalent provision under the proposed
new universal service regime. The table in subitem 3(3) sets out the existing
provision in Part 2 of the current Act and its equivalent under the proposed new
Part 2.
Examples of instruments preserved by item 3 are the
Telecommunications Universal Service Obligation (Eligible Revenue)
Regulations 1998 (SR No. 180 of 1998), the Telecommunications (Consumer
Protection and Service Standards) (Special Digital Data Service) Regulations
1999 (SR No. 234 of 1999), the Digital Data Service Provider Declaration
1999 (No. 1), the Digital Data Service Areas Determination 1999 (No.
1) and the Special Digital Data Service Provider Declaration 2000 (No.
1).
Item 4 allows the Minister or the ACA to make a written determination
modifying the operation of an existing instrument, with respect to the
terminology used in the instrument, so that it is capable of operating under the
proposed new universal service regime. It may be necessary to change references
in such instruments to participating carriers (the definition of which is
repealed by item 8 of proposed Schedule 3 to the Bill) to references to
participating persons. Similarly, it may be necessary to change references in
such instruments to the national universal service provider to references to a
primary universal service provider.
Item 5 gives transitional operation to any draft universal service plan
given to the Minister under Division 4 of current Part 2 of the Act but not yet
dealt with before the Bill receives Royal Assent.
It treats policy
statements in such draft plans as if they were draft policy statements for the
purposes of the Act as proposed to be amended. It also treats the remainder of
the draft plan as if it were a draft standard marketing plan for the purposes of
the Act as proposed to be amended.
Item 6 gives transitional operation to any approved universal service plan
(whether of Telstra or another universal service provider) in force immediately
before this Bill receives Royal Assent.
Item 6 replaces proposed section
12N in the Bill as introduced (as proposed to be omitted by Amendment (11)).
This is to cover the possibility that carriage service providers apart from
Telstra may have had a universal service plan approved by the ACA before this
Bill receives Royal Assent.
To the extent that the plan contains
statements of the policy that the USP concerned will apply in supplying
equipment, goods or services, the plan will be taken, after 1 July 2000, to be
an approved policy statement for the purposes of the Act as proposed to be
amended.
The remainder of the plan will be taken after 1 July 2000 to be
an approved standard marketing plan for the purposes of the Act as proposed to
be amended.
Item 7 – Meaning of eligible
person
Proposed section 22A enables a universal service provider,
a digital data service provider or a participating person in relation to a claim
period to request the ACA to provide specified information, being information
the ACA cannot supply under proposed section 22, and sets out rules in relation
to the ACA’s compliance with the request.
Proposed section 22A is
based on section 72 of the current Act. Section 72 gives similar rights to a
universal service provider, a digital data service provider and a participating
carrier.
Item 7 provides that after 1 July 2000, each of the persons
referred to in section 72 of the current Act in relation to the 1999-2000
financial year or an earlier financial year is taken to be an eligible person
for the purposes of proposed section 22A.
Proposed section 23 requires the ACA to maintain a register or registers
of various instruments and other documents required under proposed new Part
2.
To give the ACA sufficient time to develop a register or registers,
Item 8 provides that proposed section 23 does not apply until 3 months after the
day on which the Bill receives Royal Assent or such later day as the Minister
determines in writing. If the Minister makes such a determination, it will be
required to be published in the Commonwealth Gazette.
Item 9 will allow the making of regulations to deal with other
transitional matters that may arise out of the proposed amendments and repeals
made by the Bill. This item arises from the complexity of the transitional
arrangements, and allows any problems that may arise to be dealt with.
AMENDMENT (36)
Amendment (36) inserts a new Schedule 3 containing consequential and
other amendments.
Item 1 – Repeal of paragraphs (i) and (j) of
the definition of civil penalty provision in section 7 of the
Telecommunications Act 1997
Item 1 repeals paragraphs (i) and
(j) of the definition of ‘civil penalty provision’ in section 7 of
the Telecommunications Act 1997. These paragraphs provide that
subsections 92(1) and (2) of the Telecommunications (Consumer Protection and
Service Standards) Act 1999 are civil penalty provisions. They are
therefore subject to the civil penalty regime in Part 31 of the
Telecommunications Act 1997.
Subsections 92(1) and (2) are
contained in Part 2 of the Telecommunications (Consumer Protection and
Service Standards) Act 1999 which is to be repealed by the Bill and
substituted with a new Part. Subsections 92(1) and (2) have no counterpart in
proposed new Part 2.
However, proposed subsection 20ZH(2) will require a
person who has an actual or anticipated liability to pay universal service levy
to comply with any Ministerial determination requiring the person to obtain
performance bonds or guarantees in respect of that liability. Clause 1 of
Schedules 1 and 2 to the Telecommunications Act 1997 makes this
obligation a standard carrier licence condition (in the case of a carrier) and a
service provider rule (in the case of a carriage service provider). The ACA has
powers to enforce this carrier licence condition and service provider rule (see
sections 68, 69, 101 and 102 and Parts 30 and 31 of the Telecommunications
Act).
Item 2 – Repeal of section 66 of the Telecommunications
Act 1997
Item 2 repeals section 66 of the Telecommunications
Act 1997 which requires the Minister to ensure that Telstra’s carrier
licence is subject to one or more conditions relating to the availability of
ISDN-comparable digital data capability.
Section 66 has been superseded
by the digital data obligation currently contained in section 19A of the
Telecommunications (Consumer Protection and Service Standards) Act 1999
and continued by the Bill as proposed sections 10, 10A and 10B.
Item 3
– Repeal and substitution of paragraph 105(3)(e) of the
Telecommunications Act 1997
Section 105 of the Telecommunications Act 1997 requires the ACA to
monitor and report each year to the Minister on significant matters relating to
the performance of carriers and carriage service providers, with particular
reference to consumer satisfaction, consumer benefits and quality of service.
Paragraph 105(3)(e) requires the ACA’s report to set out details of the
adequacy of each universal service provider’s compliance with its
obligations under the universal service regime in Part 2 of the
Telecommunications (Consumer Protection and Service Standards) Act
1999.
Item 3 expands the ACA’s reporting requirements under
section 105 to include the adequacy of any relevant person’s compliance
with obligations under Part 2 of the Telecommunications (Consumer Protection
and Service Standards) Act 1999. This will also cover the compliance of
digital data service providers which is currently covered by paragraph
105(3)(ea) of the Telecommunications Act 1997 which is being modified by
item 4 below.
Item 4 – Repeal and substitution of paragraph
105(3)(ea) of the Telecommunications Act 1997
Item 4 repeals
and substitutes paragraph 105(3)(ea) of the Telecommunications Act 1997.
That provision currently obliges the ACA to report on the adequacy of each
digital data service provider’s compliance with its obligations under Part
2 of the Telecommunications (Consumer Protection and Service Standards) Act
1999.
The proposed new paragraph 105(3)(ea) will require the ACA to
report on the operation of the universal service regime in Part 2 of the
Telecommunications (Consumer Protection and Service Standards) Act 1999,
and the operation of Part 5 of that Act, which deals with the Customer Service
Guarantee.
This is a significant enhancement of the ACA’s reporting
obligations, and should, among other things, provide useful information for the
review of the operation of Parts 2 and 5 of the Act. This review is provided
under item 15 of Schedule 3 (proposed new section 159A of the Act).
Item 5 – Insertion of new paragraphs after paragraph (1)(j) to
Schedule 4 to the Telecommunications Act 1997
Clause 1 of
Schedule 4 to the Telecommunications Act 1997 lists the decisions that
are subject to reconsideration by the ACA under section 555 of the
Telecommunications Act 1997. Under Part 29 of the Telecommunications
Act 1997, these decisions may be reviewed by the Administrative Appeals
Tribunal following reconsideration by the ACA.
Item 5 adds the USO and
NRS late levy payment penalty remittance powers of the ACA in proposed
subsections 23D(3) and 101A(3) to the list of decisions that are subject to
reconsideration by the ACA under clause 1 of Schedule 4 to the
Telecommunications Act 1997.
Proposed new section 23D (inserted by
Amendment (34)) provides for a penalty for late payment of a levy assessed under
proposed new section 20U. Proposed new subsection 23D(3) enables the ACA to
remit all or part of the penalty that a person is liable to pay under proposed
new subsection 23D(2).
Proposed new section 101A (inserted by item 12 of
Schedule 3, Amendment (36)) inserts a penalty for late payment of a NRS levy
assessed under proposed new section 99. Proposed new subsection 101A(3) enables
the ACA to remit all or part of the penalty that a person is liable to pay under
proposed new subsection 101A(2).
Item 6 – Repeal and
substitution of subsection 2(2) of the Telecommunications (Consumer
Protection and Service Standards) Act 1999
Subsection 2(2) of the
Telecommunications (Consumer Protection and Service Standards) Act 1999
provides that Part 2 of that Act (dealing with the universal service
regime), certain definitions used in that Part, and Part 3 of that Act (dealing
with the National Relay Service) commenced on 1 July 1999.
Part 2 and the
definitions referred to in subsection 2(2) are to be repealed (see item 1 of
Schedule 1 to the Bill as introduced and item 8 of proposed Schedule 3).
Accordingly, item 6 repeals subsection 2(2) and substitutes a new subsection
2(2) which preserves the commencement of Part 3 on 1 July 1999.
Notwithstanding item 6, item 7 preserves the operation of subsection 2(2)
of the Telecommunications (Consumer Protection and Service Standards) Act
1999 after 1 July 2000 in relation to the 1999-2000 financial
year.
Item 8 – Repeal and substitution of subsection 5(2) of the
Telecommunications (Consumer Protection and Service Standards) Act
1999
Subsection 5(2) of the Telecommunications (Consumer
Protection and Service Standards) Act 1999 defines key terms for the
purposes of current Part 2 of that Act.
Item 8 repeals subsection 5(2)
and substitutes a new subsection 5(2) which defines key terms used in new Part
2.
Notwithstanding item 8, item 9 preserves the operation of subsection 5(2)
of the Telecommunications (Consumer Protection and Service Standards) Act
1999 after 1 July 2000 in relation to the 1999-2000 financial
year.
Item 10 – Repeal and substitution of section 99 of the
Telecommunications (Consumer Protection and Service Standards) Act
1999
Section 99 of the Telecommunications (Consumer Protection
and Service Standards) Act 1999 identifies persons who are liable to pay
levy in accordance with Part 3 of that Act. Part 3 provides for the National
Relay Service (NRS). The NRS provides persons who are deaf or have a hearing
and/or speech impairment with access to a standard telephone service on terms,
and in circumstances, that are comparable to the access other Australians have
to a standard telephone service.
Section 99 provides that NRS levy for a
quarter is payable by each person who is a participating carrier in relation to
the financial year in which the quarter occurs and is covered by the most recent
section 64 assessment made before the start of the quarter.
The concept
of ‘participating carrier’ in relation to a financial year is to be
replaced in new Part 2 by the concept of a ‘participating person’ in
relation to an eligible revenue period (see proposed sections 20A and
20C).
The section 64 assessment will become an assessment under proposed
section 20U, however, because of the timing of assessments, one of three
assessments may be the most recent levy assessment before the start of the
quarter.
Accordingly, item 10 repeals section 99 and substitutes a new
section 99 to provide that NRS levy is payable by each person who is a
participating person for the last eligible revenue period that ends before the
start of the quarter and is covered by the most recent assessment made before
the start of the quarter.
Proposed section 101C, to be inserted by item
13 of Schedule 3, defines what the most recent levy assessment is for the
purposes of proposed section 99.
Item 11 – Amendment of the
definition of eligible revenue in subsection 100(3) of the
Telecommunications (Consumer Protection and Service Standards) Act
1999
Section 100 of the Telecommunications (Consumer
Protection and Service Standards) Act 1999 provides for the calculation of
NRS levy. One of the components in the calculation of this levy is the
taxpayer’s eligible revenue. This is defined in subsection 100(3), for a
taxpayer for a quarter, to mean the taxpayer’s eligible revenue as shown
in the most recent section 64 assessment made before the start of the
quarter.
The section 64 assessment will become an assessment under
proposed section 20U.
Item 11 omits the reference to ‘section
64’ and replaces it with a reference to the most recent levy assessment
made before the start of the quarter, as defined in section 101C.
Under
proposed new subsection 2(3) of the Act (Amendment (1)), items 10, 11 and 13 of
Schedule 3 commence on 1 January, 1 April, 1 July or 1 October following the day
on which this Act receives Royal Assent. This is to ensure that NRS levies for
the early part of 2000-2001, which are calculated quarterly, do not need to be
adjusted.
Item 12 – Insertion of new sections 101A and 101B at
the end of Division 3 of Part 3 of the Telecommunications (Consumer
Protection and Service Standards) Act 1999
Item 12 provides for a
penalty for late payment of unpaid NRS levy (proposed section 101A) and for
performance bonds and guarantees in relation to an NRS liability (proposed
section 101B). These are comparable to proposed section 23D (see Amendment
(34)) and proposed section 20ZH in the Bill as introduced in relation to the
proposed new universal service regime.
If any amount of NRS levy that is
payable by a person remains unpaid after the day by which it must be paid, the
person is liable to a penalty on the unpaid amount for each day until all of the
levy has been paid (proposed subsection 101A(1)).
The penalty rate is 20%
per year, or such lower rate as the ACA determines in writing for the purposes
of proposed section 101A (proposed subsection 101A(2)). Under proposed new
subsection 101A(3), the ACA may remit all or part of the penalty in proposed new
subsection 101A(2).
An ACA determination under proposed subsection
101A(2) will be a disallowable instrument (proposed subsection 101A(8)) and will
therefore be required to be published in the Commonwealth Gazette, tabled
in both Houses of Parliament within 15 sitting days of being made and will be
subject to Parliamentary disallowance.
The penalty for a day will be due
and payable to the ACA at the end of that day and will be able to be recovered
by the ACA, on behalf of the Commonwealth, as a debt due to the Commonwealth
(proposed subsection 101A(4)).
Amounts of penalty received will be
required to be paid into the Consolidated Revenue Fund (proposed subsection
101A(5)).
If the amount of the penalty is not an amount of whole dollars,
the penalty will be rounded to the nearest dollar (with any amount of 50 cents
being rounded upwards) (proposed subsection 101A(6)).
The ACA will be
required to notify a person in writing as soon as practicable after the person
fails to pay an amount of levy by the time by which it must be paid. However,
any failure of the ACA to do so will not affect the person’s liability
(proposed subsection 101A(7)).
Proposed section 101B provides for
performance bonds and guarantees in relation to a liability to pay NRS levy.
Proposed section 101B provides that the Minister may, by written determination,
require a person who has an actual or anticipated liability to pay NRS levy
under section 99 to obtain performance bonds (as defined by the determination
– proposed subsection 101B(4)) or guarantees in respect of that liability
(proposed subsection 101B(1)).
The person will be required to comply with
the determination (proposed section 101B(2)). Clause 1 of Schedules 1 and 2 to
the Telecommunications Act 1997 makes this obligation a standard carrier
licence condition (in the case of a carrier) and a service provider rule (in the
case of a carriage service provider). The ACA has powers to enforce this
carrier licence condition and service provider rule (see sections 68, 69, 101
and 102 and Parts 30 and 31 of the Telecommunications Act).
Any
Ministerial determination under proposed section 101B will be a disallowable
instrument (proposed subsection 101B(3)) which accordingly must be notified in
the Commonwealth Gazette, tabled in the Parliament within 15 sitting days
of being made and is subject to Parliamentary disallowance.
Item 13
– Insertion of new section 101C of the Telecommunications (Consumer
Protection and Service Standards) Act 1999 – Meaning of most
recent levy assessment
Item 13 inserts new section 101C into the Act which provides a definition of
most recent levy assessment for the purposes of proposed new paragraph 99(b) and
the proposed new definition of ‘eligible revenue’ in subsection
100(3) (see items 10 and 11 of proposed Schedule 3).
Item 13 defines most
recent levy assessment to be the assessment made most recently by the ACA that
is:
§ an
assessment under section 193 of the Telecommunications Act 1997 that was
in force immediately before the commencement its repeal by item 15 of Schedule 4
to the Telecommunications Legislation Amendment Act 1999 ie. an
assessment in force before 1 July 1999;
§ an assessment under section 64 of the
Telecommunications (Consumer Protection and Service Standards) Act 1999
that was in force immediately before the commencement of Schedule 1 to the
current Bill (namely the Telecommunications (Consumer Protection and Service
Standards) Amendment Act (No. 2) 2000) ie. an assessment in force before 1
July 2000; or
§ an assessment under proposed section 20U
of the Telecommunications (Consumer Protection and Service Standards)
Amendment Act (No. 2) 2000.
Under proposed new subsection 2(3) of the
Act (Amendment (1)), items 10, 11 and 13 of Schedule 3 commence on 1 January, 1
April, 1 July or 1 October following the day on which this Act receives Royal
Assent. This is to ensure that NRS levies for the early part of 2000-01, which
are calculated quarterly, do not need to be adjusted.
These arrangements
recognise that assessments for 1998-1999 and 1999-2000 are still outstanding and
may have application for the purposes of Part 3.
Item 14 –
Insertion of new subsection 107(6A) of the Telecommunications (Consumer
Protection and Service Standards) Act 1999
Section 107 of the
Telecommunications (Consumer Protection and Service Standards) Act 1999
enables regulations to be formulated to give benefits to Australian
customers of a carriage service provider who are not in a standard zone as
defined in section 108. These regulations may impose requirements on carriage
service providers with which they must comply.
Subsection 107(2) provides
that the benefits are to relate to charges for calls made using a standard
telephone service supplied to the customer and are to be comparable to the
benefits given to eligible customers under section 104 (which deals with the
requirement to provide an untimed call option).
Under subsection 107(6),
the Minister is to take reasonable steps to ensure that, at all times after the
commencement of section 107, such regulations are in force.
The
regulations made for the purposes of section 107 are the Telecommunications
(Remote Area Rebate) Regulations 1998. These provide a rebate of up to $160
per calendar year for customers in areas other than the standard zones to
contribute to the cost of the customer’s remote area calls. (These
regulations were preserved and given continuing operation by item 77 of Schedule
3 to the Telecommunications Legislation Amendment Act 1999 as a
consequence of the repeal and re-enactment in the Telecommunications
(Consumer Protection and Service Standards) Act 1999 of the provisions
relating to continued access to untimed local calls.)
Item 14 inserts a
new subsection 107(6A) into the Act, which enables the obligation for the
Minister to arrange for the benefit described in subsection 107(2) to be
provided in a manner other than by way of regulations. The Minister may arrange
for the benefit to be provided by way of an agreement (or more than one
agreement) eg. an agreement under section 56 or 57 of the Telstra Corporation
Act 1991 relating to the supply of untimed local calls in remote Australia,
by way of a provision in the Telecommunications (Consumer Protection and
Service Standards) Act 1999 or the Telecommunications Act 1997, or by
way of a disallowable instrument (apart from regulations made under subsection
107(2)) made under the Telecommunications (Consumer Protection and Service
Standards) Act 1999 or the Telecommunications Act
1997.
Item 15 – Insertion of new section 159A of the
Telecommunications (Consumer Protection and Service Standards) Act 1999
– Review of operation of Parts 2 and 5 of this Act
Item 15
inserts a new section 159A of the Telecommunications (Consumer Protection and
Service Standards) Act 1999 in relation to the review of the proposed new
universal service regime in new Part 2 of that Act and the customer service
guarantee requirements in Part 5 of that Act.
Proposed new section 159A
is based on section 151CN of the Trade Practices Act 1974 which provides
for a review of the operation of Part XIB of that Act dealing with
anti-competitive conduct in the telecommunications industry.
The Minister
will be required to arrange for a review of the operation of Parts 2 and 5 of
the Telecommunications (Consumer Protection and Service Standards) Act
1999 to be commenced within 3 years after this Bill receives Royal Assent
(proposed subsection 159A(1)).
Proposed subsection 159A(2) provides that
the review will be required to consider:
§ the operation of Parts 2 and 5;
and
§ whether those Parts best promote the
objects of the Telecommunications (Consumer Protection and Service Standards)
Act 1999 and of Part 2 (as set out in section 3 of the Telecommunications
Act 1997) and proposed section 8A of the Telecommunications (Consumer
Protection and Service Standards) Act 1999;
and
§ any other matters the Minister considers
relevant.
The Minister will be required to arrange for a copy of a report
of the review to be tabled in both Houses of Parliament within 15 sitting days
after the report is completed (proposed subsection 159A(3)).
AMENDMENT (37)
Amendment (37) inserts a new Schedule 4 to facilitate the disbursement of
USO levy for the 1998-1999 financial year.
There are a number of
potential problems with the disbursement of levy under the current universal
service regime and its predecessor under the Telecommunications Act 1997,
whose provisions relating to the disbursement of levy are being preserved. In
particular, paragraph 215(b) of the Telecommunications Act 1997 restricts
payment of levy under section 214 until the entire levy has been
collected.
Levy distribution for the 1998-1999 financial year is governed
by Division 6 of Part 7 of the Telecommunications Act 1997. Despite the
repeal of Part 7 by item 15 of Schedule 4 to the Telecommunications
Legislation Amendment Act 1999, item 23 of Schedule 4 to that Act preserves
the operation of Part 7 in relation to levy distribution for the 1998-1999
financial year and earlier financial years.
The assessment for the
1998-1999 financial year has not yet been completed due to recent litigation.
In the interim, if a carrier leaves the market then it may default on its
obligation to pay any levy assessed. This may effectively prevent any payments
from being made in relation to the 1998-1999 financial year, under the relevant
legislation, to the detriment of Telstra, the sole universal service provider
for that year.
Amendment (37) proposes to address these problems to
enable payments to be made to Telstra as the universal service provider even if
the ACA has not collected the entire levy (and in fact may never collect the
entire levy).
Item 1 – Meaning of former
law
Item 1 defines the term ‘former law’ for the
purposes of the remaining items in proposed Schedule 4. ‘Former
law’ is defined to mean the Telecommunications Act 1997 as in force
immediately before the commencement of item 15 of Schedule 4 to the
Telecommunications Legislation Amendment Act 1999 ie. the
Telecommunications Act 1997 as in force before 1 July 1999 which governed
levy distribution for the 1998-1999 financial year.
Item 2 provides that items 3 to 6 of proposed Schedule 4 apply if section
215 of the Telecommunications Act 1997 as in force before 1 July 1999
prevents a payment being made out of the Universal Service Account for the
1998-1999 financial year because of either or both of the
following:
§ the ACA has not yet made a written
assessment of liabilities and entitlements under section 193 of the
Telecommunications Act 1997 for the 1998-1999 financial year;
or
§ not
all participating carriers in respect of which levy was assessed have paid the
levy.
Item 3 is based on proposed section 20G of the Telecommunications
(Consumer Protection and Service Standards) Act 1999 inserted by Schedule 1
to the Bill as introduced.
It provides that if a participating carrier
fails to give the ACA an eligible revenue return under section 191 of the
Telecommunications Act 1997 for the 1998-1999 financial year, the ACA
will be able to estimate the carrier’s eligible revenue for that year, and
make a written assessment under section 193 of the Telecommunications Act
1997 of the carrier’s eligible revenue based on that estimate. This
will ensure that there can be an eligible revenue figure for each participating
carrier for the purpose of calculating its levy contribution, even if it fails
to submit a return.
Subitem 3(2) provides that the ACA must give at least
two weeks’ written notice to a carrier which has not lodged its return of
the ACA’s proposal to make the assessment based on the estimate, and of
the amount of eligible revenue proposed to be assessed. This is intended to
provide the participating carrier with an opportunity to express its views to
the ACA about the proposed estimate, or even to submit a return of its
own.
If the ACA receives an eligible revenue return for the 1998-1999
financial year from the carrier concerned, the ACA will not be able to make an
assessment based on an estimate if it has not already made an assessment
(subitem 3(3)). However, if the ACA has already made an assessment based on an
estimate, the ACA is not required to change it if an eligible revenue return is
later given to the ACA (subitem 3(4)). Once the ACA has made an assessment
under s.193 using an estimate of a participating carrier’s revenue, the
ACA may, but is not obliged to, change the assessment if it is subsequently
given a return. This is to provide an incentive for carriers to submit returns
and provide closure for the assessment process.
Item 4 will allow the ACA to make an assessment of liabilities and
entitlements under section 193 of the Telecommunications Act 1997 or item
3 of proposed Schedule 4 to the Bill that a participating carrier’s
eligible revenue for the 1998-1999 financial year is nil if, in the ACA’s
opinion:
§ it is unlikely that the carrier would be
able to pay any levy that would be payable; or
§ the
carrier is unlikely to pay the levy unless the Commonwealth takes action to
recover it and the cost of doing so would exceed the amount of the levy.
Item 4 is designed to deal with the situation where there may be a
participating carrier in relation to the 1998-99 financial year who is no longer
able to pay levy, or who technically may be able to pay, but would only do so
after the debt was pursued by the Commonwealth at a considerable cost to it.
Were such a levy liability to be created, it may never be paid and the universal
service provider would not receive its full entitlements for that year.
Item 4 remedies this situation by enabling the ACA to give that
participating carrier a nil assessment. This would mean that the USO
contribution that person would otherwise pay will be shared between the other
participating carriers. The provision is designed to enable universal service
providers to receive their full entitlements and is not intended to reward
defaulting participating carriers. It is intended that it be used only in the
most exceptional circumstances, for example, where it is certain levy would not
be paid, leaving the universal service provider out of pocket. Where large
amounts of levy would be involved (ie. they would exceed the cost of recovering
them), it is intended that they be recovered and a nil assessment not be given.
Paragraph 215(b) of the Telecommunications Act 1997 restricts
payment of levy under section 214 in relation to the 1998-1999 financial year
until the entire levy has been collected.
Item 5 provides that despite
paragraph 215(b), distributions will be able to be paid from the Universal
Service Account for the 1998-1999 financial year even if all of the
participating carriers in respect of which the levy was assessed have not yet
paid the levy. This is designed to remedy the problem of a universal service
provider not being able to be paid its entitlements, which may be significant,
because of failure by one or more contributors to pay their levy. At present,
payment of Telstra’s estimated levy entitlement of around $50 million
could be prevented by the failure of the smallest contributor to pay its
levy.
Item 6 provides for working out how much levy is payable to carriers out
of the Universal Service Account if there are insufficient funds in that
Account. This situation may arise where levy is to be paid out before it is all
paid in. In relation to the 1998-99 assessment, all levy is payable to Telstra.
The item is modeled on proposed section 21C.
Subitem 6(1) provides that
if the total of the amounts payable to carriers out of the Universal Service
Account, after paying any refunds that are due under section 208 of the
Telecommunications Act 1997, the ACA will be required
to:
§ work out the amount payable to each
carrier as a proportion of the total amounts payable;
and
§ ensure that any payments out of the
Universal Service Account are made in accordance with those proportions
(rounding amounts to whole dollars as the ACA considers
appropriate).
However, if the Minister determines a different method for
making payments out of the Universal Service Account, the ACA will be required
to act in accordance with that determination (subitem 6(2)). Any determination
made by the Minister under subitem 6(2) will be a disallowable instrument
(subitem 6(3)). Accordingly, it will be required to be notified in the
Gazette, tabled in both Houses of Parliament within 15 sitting days of
being made and will be subject to Parliamentary scrutiny.
A
carrier’s levy credit balance for the 1998-1999 financial year will be
reduced by the amount (worked out under item 6) that is paid to the carrier
(subitem 6(4)). This is to make it clear that the provider’s total USO
levy entitlement is reduced in line with such partial payments as it receives.
Item 6 will continue to apply until each carrier’s levy credit
balance for the year is reduced to nil (subitem 6(5)).
AMENDMENT (38)
Amendment (38) inserts a new Schedule 5 to facilitate the disbursement of
USO levy for the 1999-2000 financial year. The provisions are analogous to
those in Schedule 4 and the commentary in Schedule 4 generally applies to
Schedule 5.
There are a number of potential problems with the
disbursement of levy under the current universal service regime. In particular,
section 86(b) of the Telecommunications (Consumer Protection and Service
Standards) Act 1999 restricts payment of levy under section 85 until the
entire levy has been collected.
The assessment for the 1999-2000
financial year has not yet been completed as the financial year has only just
concluded and the process is currently in train. In the interim, if a carrier
leaves the market then it may default on its obligation to pay any levy
assessed. This may effectively prevent any payments from being made in relation
to the 1999-2000 financial year, under the relevant legislation, to the
detriment of Telstra, the sole universal service and digital data service
provider for that year.
Amendment (38) proposes to address these problems
to enable payments to be made to Telstra as the universal service provider even
if the ACA has not collected the entire levy (and in fact may never collect the
entire levy).
Item 1 – Meaning of former
law
Item 1 defines the term ‘former law’ for the
purposes of the remaining items in proposed Schedule 5. ‘Former
law’ is defined to mean the Telecommunications (Consumer Protection and
Service Standards) Act 1999 as in force immediately before the commencement
of Schedule 1 to this Bill ie. as in force before 1 July 2000.
Item 2 provides that items 3 to 6 of proposed Schedule 5 apply if section
86 of the Telecommunications (Consumer Protection and Service Standards) Act
1999 as in force before 1 July 2000 prevents a payment being made out of the
Universal Service Account for the 1999-2000 financial year because of either or
both of the following:
§ the ACA has not yet made a written
assessment of liabilities and entitlements under section 64 of the
Telecommunications (Consumer Protection and Service Standards) Act 1999
for the 1999-2000 financial year;
§ not all participating carriers in respect
of which levy was assessed have paid the levy.
Despite the repeal and
substitution of the current universal service regime by Schedule 1 to the Bill
as introduced, that regime will continue to apply after 1 July 2000 in relation
to the 1999-2000 financial year (see item 1 of proposed Schedule 2 to the Bill
inserted by Amendment (35)).
Item 3 is based on proposed section 20G of the Telecommunications
(Consumer Protection and Service Standards) Act 1999 inserted by Schedule 1
to the Bill as introduced.
It provides that if a participating carrier
fails to give the ACA an eligible revenue return under section 62 of the
Telecommunications (Consumer Protection and Service Standards) Act 1999
for the 1999-2000 financial year, the ACA will be able to estimate the
carrier’s eligible revenue for that year, and make a written assessment
under section 64 of that Act of the carrier’s eligible revenue
based on that estimate.
Subitem 3(2) provides that the ACA must give at
least two weeks’ written notice to a carrier which has not lodged its
return of the ACA’s proposal to make the assessment based on the estimate,
and of the amount of eligible return proposed to be assessed.
If the ACA
receives an eligible revenue return for the 1999-2000 financial year from the
carrier concerned, the ACA will not be able to make an assessment based on an
estimate if it has not already made an assessment (subitem 3(3)). However, if
the ACA has already made an assessment based on an estimate, the ACA is not
required to change it if an eligible revenue return is later give to the ACA
(subitem 3(4)).
In relation to these provisions, see also the commentary
in relation to Item 3 of Schedule 4.
Item 4 will allow the ACA to make an assessment of liabilities and
entitlement under section 64 of the Telecommunications (Consumer Protection
and Service Standards) Act 1999 or item 3 of proposed Schedule 5 to the Bill
that a participating carrier’s eligible revenue for the 1999-2000
financial year is nil if, in the ACA’s opinion:
§ it is
unlikely that the carrier would be able to pay any levy that would be payable ;
or
§ the
carrier is unlikely to pay the levy unless the Commonwealth takes action to
recover it and the cost of doing so would exceed the amount of the
levy.
In relation to these provisions, see also the commentary in
relation to Item 4 of Schedule 4.
Paragraph 86(b) of the Telecommunications (Consumer Protection and
Service Standards) Act 1999 restricts payment of levy under section 85 in
relation to the 1999-2000 financial year until the entire levy has been
collected.
Item 5 provides that despite paragraph 86(b), distributions
will be able to be paid from the Universal Service Account for the 1999-2000
financial year even if all of the participating carriers in respect of which the
levy was assessed have not yet paid the levy.
In relation to these
provisions, see also the commentary in relation to Item 5 of Schedule 4.
Item 6 provides for working out how much is payable to carriers out of
the Universal Service Account if there are insufficient funds in that
Account.
Subitem 6(1) provides that if the total of the amounts payable
to carriers out of the Universal Service Account, after paying any refunds that
are due under section 79 of the Telecommunications Act (Consumer Protection
and Service Standards) Act 1999, the ACA will be required
to:
§ work out the amount payable to each
carrier as a proportion of the total amounts payable;
and
§ ensure that any payments out of the
Universal Service Account are made in accordance with those proportions
(rounding amounts to whole dollars as the ACA considers
appropriate).
However, if the Minister determines a different method for
making payments out of the Universal Service Account, the ACA will be required
to act in accordance with that determination (subitem 6(2)). Any determination
made by the Minister under subitem 6(2) will be a disallowable instrument
(subitem 6(3)). Accordingly, it will be required to be notified in the
Gazette, tabled in both Houses of Parliament within 15 sitting days of
being made and will be subject to Parliamentary scrutiny.
A
carrier’s levy credit balance for the 1999-2000 financial year will be
reduced by the amount (worked out under item 6) that is paid to the carrier
(subitem 6(4)).
Item 6 will continue to apply until each carrier’s
levy credit balance for the year is reduced to nil (subitem 6(5)).
In
relation to these provisions, see also the commentary in relation to Item 6 of
Schedule 4.
NOTES ON AMENDMENTS
TELECOMMUNICATIONS
(UNIVERSAL SERVICE LEVY) AMENDMENT BILL 2000
The Telecommunications (Universal Service Levy) Amendment Bill 2000
(‘the Bill’) amends the Telecommunications (Universal Service
Levy) Act 1997 to cover the funding of the universal service obligation
(USO) and digital data service obligation (DDSO) by carriage service providers
as well as carriers (‘participating persons’) and to reflect
proposed new arrangements in relation to eligible revenue periods and claims
periods.
The proposed Government Amendments to the Bill make purely
technical amendments to correct drafting errors.
AMENDMENT (1)
Clause 2 of the Bill deals with its commencement. Amendment (1) makes a
technical correction to that clause.
The effect of the amendment is that
the Bill, when enacted, will commence, or will be taken to commence, immediately
after the commencement of Schedule 1 to the proposed Telecommunications
(Consumer Protection and Service Standards) Amendment Act (No. 2) 2000.
Schedule 1 to that proposed Act repeals Part 2 of the
Telecommunications (Consumer Protection and Service Standards) Act 1999
and substitutes a new universal service regime. Schedule 1 will commence, or
will be taken to have commenced, on 1 July 2000 (see Amendment (1) to the
Telecommunications (Consumer Protection and Service Standards) Amendment Bill
(No. 2) 2000).
This will ensure that the proposed new universal service
regime, and the new funding arrangements, will apply in relation to the
2000-2001 financial year and subsequent financial years.
AMENDMENT (2)
Amendment (2) inserts a new item before item 1 of Schedule 1 to the Bill
to correct a section reference as a consequence of the amendments proposed to
Schedule 1 to the Telecommunications (Consumer Protection and Service Standards)
Amendment Bill (No. 2) 2000.
This amendment amends section 4 of the
Telecommunications (Universal Service Levy) Act 1997 to replace the
reference in that provision to section 10 of the Telecommunications (Consumer
Protection and Service Standards) Act 1999 with a reference to section 8B of
that Act. Section 8B is the corresponding provision in that Act as proposed to
be amended by Schedule 1 to the Telecommunications (Consumer Protection and
Service Standards) Amendment Bill (No. 2) 2000.
The effect of Amendment
(2) is that the Telecommunications (Universal Service Levy) Act 1997 will
extend to each external Territory referred to in section 8B of the
Telecommunications (Consumer Protection and Service Standards) Act 1999.
These Territories are the Territory of Christmas Island, the Territory of Cocos
(Keeling) Islands and any external Territory specified in the regulations. No
external Territory is currently specified in the regulations.
AMENDMENT (3)
Amendment (3) makes a technical correction to the application provision
in item 6 of Schedule 1 to the Bill. It removes incorrect words from that
item.
The effect of Amendment (3) is that despite the amendments proposed
to be made by Schedule 1 to the Bill, the Telecommunications (Universal
Service Levy) Act 1997 will continue to apply, after 1 July 2000, in
relation to levy for the 1999-2000 financial year and earlier financial years,
as if those amendments had not been made.