Telecommunications (Infringement Notices) Guidelines 2011
Telecommunications Act 1997
The AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY makes these Guidelines under subsection 572M(2) of the Telecommunications Act 1997.
Dated 10 November 2011
Australian Communications and Media Authority
1 Name of Guidelines 2
2 Commencement 2
3 Definitions 2
4 Introduction 2
5 Exercising Enforcement Powers 2
6 Infringement Notices 2
Content of an infringement notice 2
Request for an extension of time in which to pay the penalty 2
Withdrawal of an infringement notice 2
Effect of withdrawal of an infringement notice 2
1 Name of Guidelines
These Guidelines are the Telecommunications (Infringement Notices) Guidelines 2011.
These Guidelines commence on the day after they are registered on the Federal Register of Legislative Instruments.
Note: All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See http://www.frli.gov.au.
In these Guidelines, unless the contrary intention appears:
ACMA means the Australian Communications and Media Authority.
ACMA Act means the Australian Communications and Media Authority Act 2005.
TCPSS Act means the Telecommunications (Consumer Protection and Service Standards) Act 1999.
Telecommunications Act means the Telecommunications Act 1997.
TIA Act means Chapter 5 of the Telecommunications (Interception and Access) Act 1979.
4.1 The ACMA is an independent statutory authority established under section 6 of the ACMA Act. The ACMA’s telecommunications functions are set out at section 8 of that Act.
4.2 Section 4 of the Telecommunications Act states that Parliament intends that telecommunications be regulated in a manner that:
(a) promotes the greatest practicable use of industry self-regulation;
(b) does not impose undue financial and administrative burdens on participants in the Australian telecommunications industry;
but does not compromise the effectiveness of regulation in achieving the objects of the Act which are set out in section 3 of the Act.
4.3 The ACMA has made these Guidelines under subsection 572M(2) of the Telecommunications Act which provides that the ACMA may formulate guidelines for the purposes of the exercise of infringement notice powers under Part 31B of the Telecommunications Act. These are the Guidelines in force for the purposes of subsection 572M(3) of the Telecommunications Act.
4.4 These Guidelines highlight the discretionary factors which an authorised infringement notice officer would generally consider in the exercise of his or her powers conferred under Part 31B of the Telecommunications Act.
4.5 These Guidelines take into account the objects of and regulatory policy underpinning the Telecommunications Act (in particular sections 3 and 4 of the Telecommunications Act), the TCPSS Act and the TIA Act.
4.6 While these Guidelines seek to provide guidance to the regulated community, the ACMA retains the discretion to impose or seek remedies and sanctions which it considers appropriate in light of the particular circumstances of each case.
5 Exercising Enforcement Powers
5.1 The ACMA’s compliance and enforcement approach is to take action that is commensurate with the seriousness of the conduct. This approach includes consideration of the nature and consequences of the conduct, while seeking to avoid the imposition of undue financial and administrative burdens on the telecommunications industry. There are a range of factors which may be considered by the ACMA in determining the appropriate enforcement response including, but not limited to:
(a) whether the conduct was deliberate, reckless or inadvertent;
(b) whether the conduct has caused, or may cause, detriment to another person and the nature, seriousness and extent of that detriment;
(c) whether the conduct indicates systemic issues which may pose ongoing compliance or enforcement issues;
(d) whether the regulated entity/person has been the subject of prior compliance or enforcement action and the outcome of that action;
(e) the compliance history and culture of the regulated entity;
(f) the specific and general educative/deterrent effect of taking action;
(g) the seniority and level of experience of the person/s involved in the conduct;
(h) what, if any, action has been taken to remedy and address the consequences of the conduct;
(i) whether the subject of the investigation has co-operated with the ACMA;
(j) whether the issues involved require urgent action or intervention by the ACMA.
6 Infringement Notices
6.1 Infringement notices are designed to provide a more timely, cost-efficient enforcement outcome and an alternative to court proceedings. An authorised infringement notice officer may, if he or she has reasonable grounds to believe that a person has contravened a particular civil penalty provision in the Telecommunications Act, TCPSS Act or the TIA Act, give the person an infringement notice relating to the contravention. However, in the case of certain civil penalty provisions, namely sections 68 and 101 of the Telecommunications Act, an infringement notice may only be given in respect of certain kinds of contraventions of those provisions (see subsections 572E(5) and (6) of the Telecommunications Act and the Telecommunications (Listed Infringement Notice Provisions) Declaration 2011).
6.2 There is no obligation on the ACMA to give an infringement notice (section 572K of the Telecommunications Act) in relation to an alleged contravention. There are a range of factors which the ACMA may consider in determining whether an infringement notice should be given (see section 5 of these Guidelines). Matters where an infringement notice may not be appropriate include where:
(a) the ACMA has previously taken action against the recipient for similar contraventions;
(b) the contraventions have occurred over an extended period of time;
(c) the recipient has, as a consequence of the contraventions, obtained a financial or other advantage, to the detriment of others;
(d) the recipient’s conduct is the subject of other compliance or enforcement action by the ACMA.
6.3 The decision to give an infringement notice must be made by the Chair or a person authorised by the ACMA under section 572L of the Telecommunications Act.
6.4 Payment of the penalty in accordance with the infringement notice, or such other period agreed to by the ACMA, prevents the ACMA from commencing proceedings under Part 31 of the Telecommunications Act for the imposition of a civil penalty with respect to the alleged contravention (section 572J of the Telecommunications Act). Upon payment the liability of the person for that alleged contravention is discharged.
6.5 In the event that payment is not made in accordance with the infringement notice, or the longer period (if any) agreed to by the ACMA, the ACMA may take action including commencing proceedings for the imposition of a pecuniary penalty under Part 31 of the Telecommunications Act.
Content of an infringement notice
6.6 An infringement notice given by the ACMA under Part 31B of the Telecommunications Act will, among other things:
(a) state the name of the person to whom the notice is given;
(b) state the date on which the notice is given;
(c) set out brief details of the alleged contravention, including the date of the alleged contravention and the civil penalty provision that was allegedly contravened;
(d) if the alleged contravention of a civil penalty provision consists of a breach of a provision of another Act or instrument – identify that provision and set out brief details of that alleged breach;
(e) state the relevant penalty units and the amount of the penalty imposed;
(f) set out the date by which payment is due and to whom payment should be addressed (see discussion below concerning requests for extensions of time);
(g) state that the person to whom a notice is given has the right to request an extension of time to pay;
(h) state that, following payment of the penalty, further proceedings will not be taken with respect to the alleged contravention and that the liability of the person for that alleged contravention is discharged;
(i) explain that the ACMA may withdraw the infringement notice within 28 days of giving the notice and must, if the penalty has already been paid, refund the penalty (see discussion below concerning applications for withdrawal);
(j) set out the name of the authorised infringement notice officer who gave the notice and the contact details of the person to whom enquiries concerning the notice may be directed.
Request for an extension of time in which to pay the penalty
6.7 Generally, the penalty is required to be paid within 28 days after the notice is given. However, the ACMA may extend the time for payment (section 572F of the Telecommunications Act).
6.8 Requests for extensions of time must be received before the due date for payment and will be considered on a case by case basis. Requests should be directed to the contact officer specified in the infringement notice in the first instance.
Withdrawal of an infringement notice
6.9 An infringement notice may be withdrawn by the ACMA of its own volition or following a request for withdrawal by the recipient of the notice. To be effective, the withdrawal must occur within 28 days after the notice was given (subsection 572H(3) of the Telecommunications Act).
6.10 Factors that may have a bearing on whether a notice should be withdrawn include whether there is further information or evidence which suggests that:
(a) the recipient of the notice did not breach the relevant civil penalty provision;
(b) the conduct is more serious than initially believed and, as a consequence, the matter would be more appropriately dealt with by the court.
6.11 The decision as to who should consider an application for withdrawal of a notice will be made in light of the facts of the case, including the basis/reasons for the request. In most cases it will be the authorised infringement notice officer who gave the notice who will be best placed to consider the request. As the authorised infringement notice officer who gave the notice, he or she will be aware of the factual issues and will be in a position to make an informed decision, taking into account the reasons for the request and any new information or facts presented, as to whether the information alters his or her belief that the person has contravened the relevant civil penalty provision.
6.12 Requests for withdrawal should therefore be directed in the first instance to the authorised infringement notice officer named in the notice.
Effect of withdrawal of an infringement notice
6.13 If the infringement notice is withdrawn after payment of the penalty, the penalty paid will be refunded.
6.14 If an infringement notice is withdrawn, the ACMA will consider whether further action is appropriate. That action may include the institution of civil penalty proceedings with respect to the alleged contravention or contraventions that were the subject of the infringement notice (subparagraph 572K(b)(iii) of the Telecommunications Act). What, if any, further action is appropriate will turn on the facts of the case.
6.15 The ACMA’s general approach to publication of infringement notices given under Part 31B of the Telecommunications Act is that:
(a) there should be no publication of the fact that an infringement notice has been given to an identified person;
(b) there should be no publication that an identified person has not complied with an infringement notice;
(c) publication of the fact that an identified person has complied with an infringement notice may be appropriate.
6.16 In the ACMA’s view, publication of the fact that an identified person has paid the penalty specified in an infringement notice may have an educative and deterrent effect.
6.17 In determining whether publication should occur, the ACMA considers a range of factors including:
(a) the seriousness and significance of the contraventions;
(b) whether the conduct resulting in the infringement notice raises novel issues;
(c) whether the conduct resulting in the infringement notice has identified systemic or industry-wide issues.
6.18 The ACMA may also publish aggregated information from time to time concerning the giving of, and compliance with, infringement notices given under Part 31B of the Telecommunications Act, without identification of the recipients of the notices.