08 Sep 2011

Infringement notices for more telecommunications offences - and higher penalties too

by Kate Jordan, Jim FitzSimons, Bruce Lloyd, Mary Still

Telecommunications providers could face higher penalties for breaching their performance benchmarks, if proposals in a new consultation paper are adopted.

The consultation paper, Determination of penalties for infringement notices issued under the Telecommunications Act 1997, proposes higher penalties, including a penalty of $990,000 for breaches of the performance benchmarks relating to the payphone Universal Service Obligation (USO) or the retail performance standards under the Customer Service Guarantee.

ACMA's power to issue infringement notices

Infringement notices are meant to be a quick, flexible method of dealing with less serious contraventions of a particular provision

Currently, ACMA can issue an infringement notice for breaches of the civil penalty provisions in the Telecommunications Act and the Telecommunications (Consumer Protection and Service Standards) Act 1999, but with some important exceptions.

Currently, it can't issue infringement notices for breaches of the USO or Customer Service Guarantee performance benchmarks unless they are in a listed infringement notice provision.

ACMA is currently seeking public comment on its own consultation paper, Proposed telecommunications (infringement notices) declaration 2011 and infringement notice guidelines, in conjunction with this consultation, to nominate new performance standards and benchmark obligations in the Telecommunications (Consumer Protection and Service Standards) Act as listed infringement notice provisions.

What's being proposed

Although the Telecommunications Act says that the maximum penalty for a breach of these listed infringement notice provisions is 60 penalty units ($6,600), the Minister can impose a penalty of up to 18,000 penalty units ($1.98 million) for particular kinds of breaches.

The consultation paper proposes that the Minister will determine a higher infringement notice penalty for some of the ACMA’s proposed listed infringement notice provisions. As a result, if a body corporate is issued an infringement notice for a contravention of sections 68 (carrier licence conditions) or 101 (service provider obligations) which involves a contravention of one of those listed infringement notice provisions, the notice will have to specify the higher penalty determined by the Minister.

So what will this higher penalty rate be? That depends upon the breach, but the highest will be 9,000 units (ie. ($990,000) for a breach of the payphone performance benchmarks.

The issues

The matters on which submissions are invited are:

  • whether the proposed infringement notice penalties in the table are appropriate;
  • whether the Minister should determine an infringement notice penalty for any of the other proposed listed infringement notice provisions in the ACMA consultation paper;
  • if other breaches should be listed infringement notice provisions, whether they should attract a different infringement notice penalty; and
  • any other relevant matter.

When do submissions have to be in by?

Submissions are due by 5.00 pm on Monday 19 September 2011.


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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.