Telecommunications Legislation Amendment (Regional Broadband Scheme) Charge Bill 2019 [2019] AUSStaCSBSD 165 (5 December 2019)

• Telecommunications Legislation Amendment (Regional Broadband Scheme) Charge Bill 2019
• Significant matters in delegated legislation 34

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Telecommunications Legislation Amendment (Regional Broadband Scheme) Charge Bill 2019

Purpose	This bill seeks establish ongoing funding arrangement for fixed wireless and satellite infrastructure through the imposition of a charge
Portfolio	Communications, Cyber Safety and the Arts
Introduced	House of Representatives on 28 November 2019

Significant matters in delegated legislation ^[34]

1.72 This bill seeks to establish an ongoing funding arrangement for fixed wireless and satellite broadband infrastructure through the imposition of a charge. The funding arrangement is to be known as the Regional Broadband Scheme and the explanatory memorandum notes that the bill is a taxation measure.^[35] The bill operates in conjunction with Schedule 4 to the Telecommunications Legislation Amendment (Competition and Consumer) Bill 2019 which, among other things, seeks to establish the types of broadband services subject to and exempt from the charge, penalties for avoiding the charge, and information gathering and disclosure powers and information reporting obligations.^[36]

1.73 The bill sets out default rates of charge which will require all telecommunications carriers to pay a charge of approximately $7.10 per month, per chargeable premises. Chargeable premises are premises where a carriage service provider (i.e. a provider of retail broadband services) provides a designated broadband service. Under the bill, the initial $7.10 monthly charge will be comprised of a $7.09 base component^[37] and a $0.01 administrative cost component.^[38] The base component is indexed annually to the consumer price index (CPI).^[39] The default administrative cost component is specified in the bill for each of the first five years,^[40] and then is indexed annually to CPI thereafter.^[41]

1.74 Although specific default rates of charge are set out on the face of the bill, subclauses 12(4) and 16(8) provide that the Minister may, by legislative instrument, change the amount of both the base component and the administrative cost component;^[42] however, the sum of the base and administrative cost components for any month cannot exceed $10, indexed annually to CPI.^[43] In addition, in deciding whether to make such a determination the Minister must have regard to advice provided by the ACCC.^[44]

1.75 In relation to the ministerial determinations altering the base component and administrative cost component made under subclauses 12(4) and 16(8), the bill also seeks to modify the usual commencement procedures for these determinations.^[45] Subclause 19(3) improves parliamentary oversight of these determinations by ensuring that they do not come into effect until after the disallowance period has expired. The committee welcomes this modified commencement procedure. The committee also welcomes the inclusion of subclause 19(3A) which provides that where a notice of motion to disallow a determination has been given, and the motion has not been considered within 15 sitting days, the determination will be taken to have been disallowed.

1.76 One of the most fundamental functions of the Parliament is to levy taxation.^[46] The committee's consistent scrutiny view is that it is for the Parliament, rather than makers of delegated legislation, to set a rate of tax. In this case, the fact that default rates of the charge and a maximum cap is set in the primary legislation partly addresses the committee's scrutiny concerns. As noted above, the committee also welcomes the modified commencement procedures for the determinations. However, any delegation to the executive of legislative power in relation to taxation still represents a significant delegation of the Parliament's legislative powers.

1.77 While the committee welcomes the important limitations in the bill on the proposed ministerial power to alter the rate of taxation, the committee reiterates its consistent scrutiny view is that it is for the Parliament, rather than makers of delegated legislation, to set a rate of tax.

1.78 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of allowing the Minister to alter the rate of a tax via delegated legislation.

1.79 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation for information.

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[34] Subclauses 12(4) and 16(8). The committee draws Senators' attention to these provisions pursuant to principles 1(a)(iv) and (v) of the committee's terms of reference.

[35] Explanatory memorandum, p. 2.

[36] Explanatory memorandum, p. 3.

[37] Subclause 12(1).

[38] Subclause 16(1).

[39] Subclauses 12(2)–(3).

[40] Subclauses 16(1)–(5).

[41] Subclauses 16(6)–(7).

[42] Subclauses 12(4) and 16(8).

[43] Subclause 17A.

[44] Paragraph 12(5)(a), clause 13, paragraph 16(9)(a), and clause 17.

[45] See clause 19. The usual commencement procedures are contained in section 12 of the Legislation Act 2003.

[46] This principle has been a foundational element of our system of governance for centuries: see, for example, article 4 of the Bill of Rights 1688: 'That levying money for or to the use of the Crown by pretence of prerogative without grant of Parliament for longer time or in other manner than the same is or shall be granted is illegal'.