Commonwealth Numbered Regulations - Explanatory Statements

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TELECOMMUNICATIONS AMENDMENT REGULATIONS 2003 (NO. 1) 2003 NO. 346

Subsection 594(1) of the Telecommunications Act 1997 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The purpose of the accompanying Regulations is to amend the Telecommunications Regulations 2001 (the Principal Regulations) to provide for a penalty in lieu of prosecution scheme (also known as an infringement notice scheme) in relation to certain offences under Part 21 of the Act.

Part 21 of the Act deals with technical regulation of customer equipment and cabling. Under that Part, the Australian Communications Authority (ACA) may:

a.       make technical standards for customer equipment and customer cabling, standards relating to the features of customer equipment that are designed to cater for the needs of persons with disabilities and technical standards about the interconnection of facilities;

b.       require customer equipment and cabling to be labelled so as to indicate compliance with standards;

c.       issue connection permits and make connection rules authorising the connection of customer cabling and equipment that does not comply with the labelling requirements;

d.       grant cabling licences and make cabling provider rules, authorising the performance of cabling work; and

e.       prohibit the supply or possession of dangerous equipment or cabling.

New section 453A of the Act provides for a penalty in lieu of prosecution scheme in relation to certain offences under Part 21 of the Act. Section 453A was inserted into the Act by item 47 in Part 5 of Schedule 1 to the Communications Legislation Amendment Act (No. 3) 2003. Part 5 of Schedule 1 to that Act is expressed to commence on the 28^th day after the day on which it receives the Royal Assent. That Act received the Royal Assent on 24 October 2003 and section 453A therefore commenced on 21 November 2003.

Subsection 453A(1) allows regulations to be made that will give a person alleged to have committed an offence - of a kind specified in the table in subsection 453A(2) - the option of paying the penalty set out in that table as an alternative to prosecution. Penalties are payable to the Commonwealth.

The penalty in lieu of prosecution scheme under the accompanying Regulations is comparable to the scheme provided for by section 315 of the Radiocommunications Act 1992 and the Radiocommunications Regulations 1993.

The penalty in lieu of prosecution scheme under the Radiocommunications Act 1992 has been successful in creating a cost-effective alternative to prosecution for the ACA and for persons alleged to have committed certain offences under that Act.

In the absence of a penalty in lieu of prosecution scheme, the ACA has to rely on more complex regulatory options when addressing non-compliance with Part 21 of the Act. These options are limited in that they merely allow the ACA to issue a warning to a person alleged to have committed an offence or to brief the Commonwealth Director of Public Prosecutions (DPP) to commence prosecution.

The accompanying Regulations address this problem by allowing the ACA to issue an infringement notice to a person alleged to have committed an offence under subsections 399(1), 411(2), 413(2), 414(2), 415(2), 416(2), 417(2), 420(2), 421(4), 434(1) and 434(2) of the Act. These subsections relate to offences involving the unauthorised connection and labelling of telecommunications equipment or cabling and the contravention of cabling provider rules, cabling licences, labelling requirements or conditions applying to connection permits for telecommunications equipment or cabling.

The Act specifies no conditions that need to be met before the power to make the accompanying Regulations may be exercised.

Details of the accompanying Regulations are set out in the Attachment.

The accompanying Regulations commence on gazettal.

ATTACHMENT

DETAILS OF THE TELECOMMUNICATIONS AMENDMENT REGULATIONS 2003 (NO. 1)

Regulation 1 - Name of Regulations

Regulation 1 provides that the name of the accompanying Regulations is the Telecommunications Amendment Regulations 2003 (No. 1).

Regulation 2 - Commencement

Regulation 2 provides that the accompanying Regulations commence on gazettal.

Regulation 3 - Amendment of Telecommunications Regulations 2001

Regulation 3 provides that Schedule 1 to the accompanying Regulations amends the Telecommunications Regulations 2001.

Schedule 1         Amendments

Item 1 - Regulation 1.7, after definition of Act

Item 1 inserts a definition of the term authorised person for the purposes of the new Part 6 of the Telecommunications Regulations 2001. An authorised person is the Chairman of the ACA or any staff member of the ACA who becomes authorised by the Chairman in writing for the purposes of that Part.

Item 2 - Substitution of Part 6 - Technical Regulation

Item 2 inserts new Part 6 into the Telecommunications Regulations 2001 in substitution for former Part 6. Former Part 6 consisted of a heading `Part 6 - Technical Regulation', a Note to indicate that Part 21 of the Act deals with technical regulation and that regulations for the purposes of Part 21 would be in this Part.

New Part 6 provides for the penalty in lieu of prosecution scheme for the purpose of various offence provisions in Part 21 of the Act.

Regulation 6.1 - Purpose of Part

Regulation 6.1 establishes the purpose of this Part of the Regulations. The purpose of the Part is to institute a procedure so that alleged offences committed against the provisions listed under section 453A of the Act can be dealt with through the issuance of infringement notices rather than having such matters dealt with by the courts. Under the scheme matters may be disposed of by the payment of a monetary penalty known as an infringement notice penalty.

Regulation 6.2 - Use of infringement notices

Regulation 6.2 allows an authorised person to issue an infringement where there are reasonable ground for believing that an offence has been committed against the provisions listed under section 453A of the Act.

Regulation 6.3 - Contents of infringement notice

Regulation 6.3 details the contents of an infringement notice to be issued by the authorised person.

Subregulation 6.3(1) requires that an infringement notice under this Part be signed by the authorised person who issues the notice, stating their name and setting out the nature of the alleged offence, as well as providing details of the provision of the Act containing the offence, when and where the offence took place. The notice will also include a statement notifying the person that if he or she does not wish the matter to be dealt with by a court then a penalty may be paid. The penalty is determined in accordance with section 453A of the Act and is to be paid within 28 days of the notice being issued.

The subregulation also requires that the infringement notice state the maximum penalty that a court could impose for the offence; the amount payable to the Commonwealth; and details of where and how the penalty may be paid. The infringement notice is to further state the procedure for withdrawal of an infringement notice and the consequences of withdrawal as well as the procedure for extension of the period for payment of a penalty under these regulations.

The subregulation requires that a statement indicating that where a penalty is paid within the period specified in the notice or if a further payment period is granted under regulation 6.5 or subregulation 6.6(3), or if an infringement notice is withdrawn following payment, liability for the alleged offence is discharged. Additionally, no further proceedings will be taken for the alleged offence and no conviction will be recorded against the person who was issued with the notice.

Subregulation 6.3(2) allows the ACA to raise any other matters it considers relevant in an infringement notice. These other matters could include a statement that a person can be prosecuted if the penalty is not paid and the prosecution could result in a larger penalty.

Regulation 6.4 - Service of an infringement notice

Regulation 6.4 allows an authorised person to serve an infringement notice on an individual by personal service, ordinary service or substituted service. Service must be effected within 10 months of the alleged offence being committed. As a result of section 15B of the Crimes Act 1914, the maximum time in which the infringement notice may be served is one year after the commission of the offence. The 10-month period will allow 28 days for the payment of the infringement notice penalty and one month to institute proceedings against the alleged offender if the penalty is not paid. If an alleged contravention of a provision of the Telecommunications Act referred to in the table in subsection 453A(2) of that Act (apart from subsection 417(2)) is committed by a body corporate and is not discovered within the 10-month period, it will be able to be prosecuted in the normal way (other than by an infringement notice) at any time (see Crimes Act 1914, s. 15B(1A)(a)).

Personal service is service of the infringement notice to an individual, for example, by hand delivery. Ordinary service is delivery of the infringement notice to the person's last known address or place of business. Substituted service is service of the notice to the person's last known address or place of business to a person over the age of 16 years who is an occupant or employee of the place.

Service of a notice to a body corporate involves ordinary or substituted service of the notice to the head office, registered office, principal office or other place of business of the body corporate.

Service of an infringement notice may also take place where a person is acting on behalf of an authorised person. An authorised person or someone acting on their behalf may also serve an infringement notice by fax transmission to the last known fax number of the person. Under subregulation 6.4(4) service is effected when the fax is sent to the person's fax number, in the absence of evidence to the contrary.

Regulation 6.5 - Extension of time to pay

Regulation 6.5 allows an authorised person to grant an extension of up to 14 days for payment if the person to whom the infringement notice was served makes a written application for an extension within 28 days after service of the notice. In making the decision the authorised person must be satisfied that it is reasonable to do so in all the circumstances. The extension begins at the end of the 28-day period for payment specified in the served infringement notice.

Under regulation 6.5 the authorised person is required to provide a written notice of their decision including reasons for refusal to a person applying for an extension of time. Where an extension application is refused, an applicant must pay the penalty within 7 days of the notice of refusal or at the end of the 28-day period specified in the served infringement notice, whichever is the later. When an extension period is granted the applicant must pay the penalty before the end of the extension period.

Regulation 6.6 - Infringement notice may be withdrawn

Regulation 6.6 allows an authorised person to withdraw an infringement notice prior to the end of 28 days following service of the infringement notice or prior to the end of any granted extension of time. Withdrawal notices will be made in writing by the authorised person and must be served on the person who has committed the offence mentioned in section 453A of the Act.

Subregulation 6.6(3) establishes the procedure to be followed when a person has presented material to the ACA evidencing that the infringement notice should not have been issued.

In this case, an authorised person must extend the time for payment of the penalty to allow the ACA to consider the material. Further, the authorised person must decide whether to withdraw or refuse to withdraw the infringement notice giving the relevant person a written notice of the decision and stating the reasons for refusal, where refusal arises.

Under subregulation 6.6(4), if an examination of material in subregulation 6.6(2) results in a refusal to withdraw the infringement notice, the relevant person will not be prosecuted for the alleged offence where they pay the penalty within 28 days of the service of the infringement notice or 7 days after being notified of the refusal, whichever is the later. If the penalty remains unpaid within this timeframe, then the person may be prosecuted.

Under subregulation 6.6(5), the authorised person making a decision about whether to withdraw, or refuse to withdraw, an infringement notice must consider the material provided, unless the material does not include any grounds for deciding on the withdrawal or maintenance of the infringement notice. The authorised person must also consider the circumstances of the offence alleged to have been committed as mentioned in the notice; any previous conviction of the person for an offence against the Act; any previous infringement notices issued to the person for an offence of the same kind; and any other relevant matter. Part VIIC of the Crimes Act 1914 requires the authorised person to disregard any spent convictions in relation to a relevant person of which the authorised person is aware. Spent convictions include convictions where the relevant person has been sentenced to imprisonment for an offence for 30 months or less and the `waiting period' has expired. The waiting period is generally 10 years from the date of conviction as an adult or 5 years from the date of conviction as a minor. If, however, the relevant person commits a further offence during the waiting period, the waiting period for the earlier offence may cease to apply or may not apply until the waiting period for the offence has ended (see Crimes Act 1914, sections 85ZX and 85ZY).

Subregulation 6.6(6) allows an authorised person to refund a penalty where the person has paid the amount in the infringement notice but the notice has been subsequently withdrawn.

Regulation 6.7 - Payment of penalty if infringement notice not withdrawn

Regulation 6.7 allows payment of a penalty to be made within 28 days of service of the infringement notice or 7 days of a notice of refusal to withdraw (under subregulation 6.6(4)) being made by an authorised person, whichever is the later.

Regulation 6.8 - Effect of payment of infringement notice penalty

Regulation 6.8 provides that the payment of a penalty in an infringement notice, where the notice has not been withdrawn, will result in: any liability for the alleged offence being discharged; no further proceedings being taken for the alleged offence; and

no conviction being recorded against the person.

Regulation 6.9 - Payment of penalty by cheque

Under regulation 6.9, all or part of penalty paid by cheque is not regarded as being paid unless the cheque is honoured upon presentation.

Regulation 6.10 - Effect of this Part on institution and prosecution of proceedings

Regulation 6.10 notes that Part 6 does not require an infringement notice to be served or affect the liability of a person to be prosecuted if service of the infringement notice is defective, or if the notice has been served and withdrawn. In addition, the penalty in lieu of prosecution scheme does not limit a court's ability to impose a different penalty on a convicted person.

More than one infringement notice may be served on a person for the same alleged offence, however, regulation 6.8 will apply if the penalty is paid in accordance with any one of those notices.

Regulation 6.11 - Matter not to be taken into account in determining sentence

Regulation 6.11 provides that where a court determines a penalty to be imposed, it is not to take into account the fact that the person served with an infringement notice, prosecuted for, and convicted of, an alleged offence, chose not to pay the infringement notice penalty.

Regulation 6.12 - Evidence for hearing

Regulation 6.12 provides for the evidentiary matters arising at the hearing of a prosecution for an offence referred to in an infringement notice and establishes the kinds of certificates that may be used as evidence of the facts in these circumstances.

Certificates signed by an authorised person may relate to facts about: the service of an infringement notice; non-payment of the penalty in accordance with the regulations; the date that an infringement notice was withdrawn; time extensions under regulation 6.5 being refused or not refused and non-payment of the penalty in accordance with the regulations; and time extensions under regulation 6.5 being granted or not granted and non-payment of the penalty in accordance with the regulations.

Subregulation 6.12(2) provides that a certificate purporting to have been signed by an authorised person is taken to have been signed by that person unless otherwise proved.