The ACMA is Australia’s regulator for broadcasting, radiocommunications, telecommunications and certain online content. Legislation places a range of obligations on industry to ensure that the interests of citizens are met, consumers are protected and industry growth is encouraged.
This policy sets out our broad approach to compliance and enforcement across these sectors.
We carry out compliance and enforcement activities under the provisions of the:
- Broadcasting Services Act 1992
- Radiocommunications Act 1992
- Telecommunications Act 1997
- Telecommunications (Consumer Protection and Service Standards) Act 1999
- Spam Act 2003
- Do Not Call Register Act 2006
- Interactive Gambling Act 2001
- related legislative and other instruments
We also consider complaints about matters that are included in industry codes of practice registered by the ACMA.
This policy must be read in the context of those Acts and instruments. For example, legislation covering broadcasting and telecommunications emphasises the use of co-regulatory approaches (predominantly through industry codes of practice) in addressing issues for consumers and citizens. In these areas, we may need different approaches to regulating than in areas where obligations are included in legislation or delegated legislation.
This policy is intended to provide additional guidance to stakeholders about the approach we take to compliance and enforcement activities. We carry out these functions in accordance with statutory requirements and this policy cannot override those requirements.
Our strategic intent is to make communications and media work in Australia’s public interest, and this is achieved by delivering constructive regulatory outcomes that effectively balance the needs of industry and the community. We aim to deliver public interest outcomes with the minimum regulatory burden necessary, while managing risks and protecting the interests of the community.
Our Compliance and Enforcement Policy forms part of a suite of strategic documents that describe how we approach our work. This policy should be considered in the context of other strategic documents we publish, including the ACMA Corporate Plan and the Annual Performance Statement. These documents provide guidance about our overarching regulatory approach and priorities for each year.
Compliance and enforcement approach
We adopt a graduated and strategic risk-based approach to compliance and enforcement. This approach recognises that breaches of the rules established by the Acts and instruments will be dealt with effectively and efficiently. It also recognises the role of co-regulation set out in the legislation it administers and of engaging with the regulated community to promote voluntary compliance.
We seek to:
- foster industry compliance with, and contribution to, the regulatory framework without imposing undue financial or administrative burdens
- encourage a compliance culture within the communications and media sector and adherence to regulatory obligations
- promote a communications and media sector that is respectful of community standards and diligent in responding to community complaints
Where we are of the view that a regulatory breach has occurred, we will take regulatory action commensurate with the seriousness of the breach and the level of harm. We will generally use the minimum power or intervention necessary to achieve the desired result, which, in many cases, is compliance with the relevant obligation.
We consider the relevant facts to determine whether action should be taken, and if so, when and at what action level intervention should occur.
Compliance and enforcement responses
The ‘compliance pyramid’ at figure 1 demonstrates the range of compliance and enforcement responses we may use to ensure compliance with a regulatory obligation.
In deciding which compliance or enforcement option or combination of options to use, we consider a range of factors including:
- the relevant regulatory objective
- whether the conduct was deliberate, inadvertent or reckless
- whether the conduct has caused, or may cause, detriment to another person, and the nature, seriousness and extent of that detriment
- whether the conduct indicated systemic issues that may pose ongoing compliance or enforcement issues
- whether the person has been the subject of prior compliance or enforcement action and the outcome of that action
- the personal and general educative/deterrent effect of acting
- the seniority and level of experience of the person/s involved in the conduct
- what, if any, action has been taken to remedy and address the consequences of the conduct
- whether the subject of the investigation has cooperated with us
- whether the issues involved require urgent action/intervention by us
Encouraging voluntary compliance
We promote a compliance culture by educating and informing the community to better understand the regulatory environment and to act in a manner that will minimise the need for intervention. Education and information helps the community understand its legal rights and be empowered to protect those rights by making informed decisions.
A significant amount of our work is aimed at encouraging voluntary compliance. Our broad range of activities in this area include the publication of guidance documents and the use of formal and informal consultation mechanisms such as discussions, seminars, consultation papers and advisory committees. We may also publish the outcome of investigations to explain our response to issues and thereby provide guidance on compliance to industry.
Where appropriate, we may publish guidance information to help the communications and media industry, consumers and citizens understand how we intend to apply the regulatory arrangements for communications to a specific service or technology.
Where appropriate, we encourage and assist self and co-regulatory compliance initiatives by industry sectors. These initiatives range from industry-initiated self-regulatory codes of practice to co-regulatory codes developed and registered under legislation.
When we identify possible non-compliance or minor issues of concern, we may alert those involved and encourage them to address the issue. We may also accept a written commitment that action will be taken to rectify non-compliance.
In many cases, it will be appropriate and efficient for us to seek to resolve compliance issues through this more informal process rather than action and intervention. However, if informal resolution is unsuccessful or inappropriate in the circumstances due to the seriousness of the matter or the harm caused, more formal action may be considered.
Where we have identified non-compliance, it may be appropriate to take formal administrative action. There is a range of administrative actions we may take, including giving formal warnings, issuing an infringement notice, accepting an enforceable undertaking, giving a remedial direction (which may include requiring rectification strategies), imposing/varying licence conditions, suspending and cancelling licences, and withdrawing accreditation and authorisations.
In certain instances, we are empowered to issue a formal warning. A formal warning not only places a person on notice that we have identified issues of concern, thereby providing them with an opportunity to address those issues, but also warns them that stronger enforcement action may be taken if the non-compliance is not rectified or it recurs.
We may also be empowered to give an infringement notice for certain limited offences and contraventions. In issuing the notice, we are alleging that the relevant offence or contravention has occurred. If the recipient of the notice pays the specified penalty, their liability for the alleged contravention is discharged. If the penalty is not paid, it will be the court’s role to consider and determine, upon the application of the ACMA, whether in fact the alleged offence or contravention has been established.
We may also resolve contraventions of relevant statutory instruments by accepting court-enforceable undertakings. An undertaking is a formal promise to act, or refrain from acting, in a particular manner. Enforceable undertakings provide an opportunity for the regulated entity to be involved in the resolution of a matter.
We are also empowered to issue remedial directions under certain statutory provisions. These are given in writing and direct the person or entity to take specified action aimed at ensuring that the breach is remedied or that it is unlikely to recur in the future. There are significant consequences for an entity that does not comply with a remedial direction.
Another example of administrative action we may take is to direct a person or regulated entity to comply with an industry code if it is satisfied that they have contravened or are contravening the industry code. The failure to comply with such a direction may amount to an offence under the relevant legislation.
In sectors where parties operate under licences administered by us, we have the power to impose additional licence conditions, suspend a licence or, in the more serious matters, cancel a licence, where it is of the opinion that such action will lead to rectification of a contravention of the relevant Act or is in the public interest.
Civil and criminal action
The appropriate enforcement response may involve us commencing civil litigation or referring a matter to the Commonwealth Director of Public Prosecutions for prosecution of an offence.
For certain contraventions, we have the power to commence civil proceedings to obtain, among others, civil penalty orders, injunctive relief and orders to enforce an enforceable undertaking.
The laws we administer also create several offences. The office of the Commonwealth Director of Public Prosecutions prosecutes these offences. The decision to refer a matter to the Commonwealth Director of Public Prosecutions for prosecution of an offence will be made by the ACMA considering the facts and the Prosecution Policy of the Commonwealth.
We produce a range of specific information on our compliance activities and approaches, including:
- ACMA Corporate plan
- ACMA Annual report
- ACMA Regulator Performance Framework
- Regulatory guides
- Investigations and compliance reporting
- Infringement notice guidelines issued by the ACMA under subsection 572(2) of the Telecommunications Act 1997
- Enforcement guidelines issued by the ACMA under section 215 of the Broadcasting Services Act 1992.