The Australian Communications & Media Authority (the ACMA) has responsibility under the Telecommunications Act 1997 for technical regulation of telecommunications customer equipment and customer cabling and takes a graduated approach in encouraging compliance with technical regulations.
Firstly, the ACMA advises the alleged offender of the breach and of the steps needed to comply with requirements. If this is unsuccessful, for certain breaches of the Telecommunications Act the ACMA can escalate regulatory action by issuing the alleged offender with a telecommunications infringement notice. An infringement notice sets out the nature of the offence, the penalty amount payable and the maximum penalty a court could impose for the offence.
Why infringement notices?
Infringement notices come with fewer costs for the ACMA and industry as legal representation and court costs are avoided. Industry benefits by having the option of paying a fine rather than being prosecuted, where a criminal conviction may be recorded with the potential for significant harm to business and personal reputations. The associated penalties are also much lower than the maximum penalty a court could impose for the offence.
An infringement notice must be sent within 10 months of the alleged offence occurring. If a penalty is paid within 28 days after the notice is served, the matter is disposed of without an admission of guilt or a conviction.
Offences addressed by a telecommunications infringement notice include:
connection of unauthorised customer equipment to a telecommunications network or installation of unauthorised cabling products
labelling telecommunications customer equipment or customer cabling with the A-tick mark without satisfying the relevant standards or documentation requirements
unauthorised use of protected symbols
supply of unlabelled or incorrectly labelled telecommunications customer equipment
performance of unauthorised telecommunications customer cabling work
breaching the Telecommunications Cabling Provider Rules 2000
contravening cabling licence conditions
Penalties vary, depending on the offence. The amount, set out in the Telecommunications Act, is linked to penalty units under the Crimes Act 1914 and is generally much lower than the maximum penalties imposed through the court system following conviction. Currently one penalty unit equates to $210.
If an individual performs unauthorised cabling work, a telecommunications infringement notice would impose 12 penalty units ($2,520) for each offence. In contrast, the maximum penalty a court may impose on conviction of the offence is 120 penalty units ($25,200).
If an individual supplies unlabelled customer equipment that is required to be labelled (and which is not covered by an approved alternative labelling notice arrangement), a telecommunications infringement notice would impose 12 penalty units ($2,520) for each offence. A body corporate would have 60 penalty units ($12,600) imposed for each offence. The maximum penalty a court may impose on conviction of the offence is 100 penalty units ($21,000).
If I don’t believe I have committed an offence
You can provide a statement in writing within the 28-day period, giving reasons you believe show you haven’t committed an offence. You should also include any material you believe ought to be taken into account in the ACMA's consideration of the alleged offence.
The material will be considered and the 28-day payment period extended, if necessary, to allow for the decision-making process. You will receive written notification about the decision, which may be to:
withdraw the telecommunications infringement notice; or
not withdraw the telecommunications infringement notice
If the decision is made to not withdraw the telecommunications infringement notice, reasons will be provided. The penalty has to be paid at the end of seven days after receiving notice of the refusal, or at the end of the original 28-day period, whichever is later.
In considering whether or not to withdraw a telecommunications infringement notice, the following factors are taken into account:
the material provided by the individual
the circumstances in which the offence mentioned in the telecommunications infringement notice is alleged to have been committed
whether the person has been convicted previously of an offence against the Telecommunications Act
whether a telecommunications infringement notice has previously been given to the person for an offence of the same kind as the offence mentioned in the notice
any other matter the authorised person considers relevant to the decision
Recipients of a telecommunications infringement notice can apply in writing for a 14-day payment extension. If the extension is denied, the penalty has to be paid at the end of seven days after receiving notice of the refusal, or at the end of the original 28-day period, whichever is later.
If you do not pay the penalty within the prescribed timeframe, the ACMA may commence prosecution action, in which case the matter will be dealt with in a court.