Telecommunications Amendment (Enhancing Consumer Safeguards) Bill 2025 - Initial Scrutiny [2025] AUSStaCSBSD 31 (27 March 2025)

• Telecommunications Amendment (Enhancing Consumer Safeguards) Bill 20254
• Significant matters in delegated legislation5
• Retrospective application15

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Telecommunications Amendment (Enhancing Consumer Safeguards) Bill 2025^[4]

Purpose	This bill seeks to amend the Telecommunications Act 1997 to: establish a carriage service provider registration scheme; make industry codes directly enforceable by the Australian Communications and Media Authority; and amend existing arrangements relating to the application of penalty amounts for infringement notices and civil penalties.
Portfolio	Infrastructure, Transport, Regional Development, Communications and the Arts
Introduced	House of Representatives on 12 February 2025
Bill status	Before the House of Representatives

Significant matters in delegated legislation^[5]

1.11 A number of provisions of the bill seek to enable the minister to set out certain matters in delegated legislation, including that the minister can determine:

• if a carriage service provider is a registrable carriage service provider, and that members of a specified class of providers are not registrable carriage service providers;^[6]

• the circumstances in which a carrier must not supply, or offer to supply, a listed carriage service to a provider;^[7]

• the circumstances that can form grounds for refusal of registration of a carriage service provider;^[8]

• matters the ACMA should consider when deciding whether to revoke the registration of a carriage service provider;^[9]

• the entities who may request information about carriage service providers from the ACMA or a contracted service provider;^[10] and

• the penalty to be specified in an infringement notice for any civil penalty provision.^[11]

1.12 Where a bill includes matters in delegated legislation, the committee expects the explanatory memorandum to the bill to address why it is appropriate to include the relevant matters in delegated legislation and whether there is sufficient guidance on the face of the primary legislation to appropriately limit the matters that are being left to delegated legislation. A legislative instrument made by the executive is not subject to the full range of parliamentary scrutiny inherent in bringing forward proposed legislation in the form of a bill.

1.13 In this case, the explanatory memorandum merely restates, at a high level, the content of the provisions, without providing any advice as to why it is appropriate that any of these matters should be left to delegated legislation. The committee notes that while some of these matters may seem relatively technical and non-substantive (such as the type of information to be included on the Carriage Service Provider Register),^[12] others relate to matters such as when registration of a carriage service provider may be refused or the matters to be considered when revoking registration.^[13] It is not clear, without any explanation being provided, as to why it is appropriate to include such matters in delegated legislation.

1.14 The committee requests that an addendum to the explanatory memorandum containing a justification for the inclusion of a range of matters in delegated legislation be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation.^[14]

1.15 The committee otherwise leaves to the Senate as a whole the appropriateness of including a number of potentially significant matters in delegated legislation.

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

Retrospective application^[15]

1.17 Currently, section 121 of the Telecommunications Act 1997 provides that the ACMA may direct a participant in a particular section of the telecommunications, telemarketing or fax marketing industry to comply with an industry code, if the ACMA is satisfied the person is or has contravened the code. A person must comply with ACMA’s direction and if they do not, they will be subject to a civil penalty (of an amount determined by the Federal Court to be appropriate).^[16]

1.18 The bill seeks to replace this section to provide that if an industry code is registered, each participant in the industry must comply with it, and if it is not complied with it, they will be subject to a civil penalty.^[17] This therefore removes the requirement for the ACMA to first issue a direction, making the penalty applicable as soon as the ACMA is satisfied the person has failed to comply with the code. This provision (currently and as amended) would also make it a civil penalty to aid, induce, be a party to, or conspire with others to effect, a contravention.

1.19 The bill provides that section 121, as substituted by this bill, applies to conduct engaged in by a person before, on or after the day the provision commences.^[18] Altering this to apply to conduct that occurs after commencement raises no scrutiny concerns. However, applying this to conduct occurring before commencement raises concerns regarding retrospectivity.

1.20 Retrospective application challenges a basic principle of the rule of law that laws should only operate prospectively. The committee therefore has long-standing scrutiny concerns in relation to provisions which have the effect of applying retrospectively. These concerns will be particularly heightened if the legislation will, or might, have a detrimental effect on individuals.

1.21 Generally, where proposed legislation will have a retrospective effect, the committee expects that the explanatory materials will set out the reasons why retrospectivity is sought, whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected. If an individual's interests will, or may, be affected by the retrospective application of a provision, the explanatory memorandum should set out the exceptional circumstances that nevertheless justify the use of retrospectivity. In this instance, the explanatory memorandum simply states:

Direct enforcement arrangements in section 121 apply from commencement, for existing registered codes and regardless of when conduct occurred...^[19]

1.22 This does not explain the need for applying this amendment retrospectively or whether any person is likely to be detrimentally affected by this measure. The committee notes that the effect of this application provision is that despite the law at the time of the conduct only allowing the ACMA to issue a direction directing a person to comply with a code (giving them a chance to comply), a person would now be immediately liable to be subject to a civil penalty. As this applies retrospectively, this would appear to potentially detrimentally affect individuals (including employees who may be said to aid, induce, be a party to, or conspire with others to effect, a contravention).

1.23 The committee is concerned that the explanatory memorandum failed to provide any explanation as to the necessity for applying this amendment retrospectively. The committee is particularly concerned that this would enable a penalty to be applied to an individual for conduct that, at the time it was committed, would have been subject only to a directions power first, rather than an immediate civil penalty.

1.24 The committee draws its long-standing scrutiny concerns regarding legislation that seeks to have a retrospective effect to the attention of senators and leaves to the Senate as a whole the appropriateness of the retrospective application of subitem 9(1) of Schedule 2 of the bill.

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^[4] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Telecommunications Amendment (Enhancing Consumer Safeguards) Bill 2025, Scrutiny Digest 3 of 2025; [2025] AUSStaCSBSD 31.

^[5] Schedule 1, item 5, proposed subsections 96A(4), 96A(6), 96B(7) and 96C(3); 96E(4); 96E(8); 96F(4); 96K(3); 96M(3); 96P(4); and 96R(7); and Schedule 4, item 1. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(iv).

^[6] Schedule 1, item 5, proposed subsections 96A(4) and 96A(6).

^[7] Schedule 1, item 5, proposed subsection 96B(7).

^[8] Schedule 1, item 5, proposed subsection 96E(4).

^[9] Schedule 1, item 5, proposed subsection 96K(3).

^[10] Schedule 1, item 5, proposed subsection 96R(7)

^[11] Schedule 4, item 1.

^[12] Schedule 1, item 5, proposed subsection 96P(4).

^[13] Schedule 1, item 5, proposed subsections 96E(4) and 96M(3).

^[14] See section 15AB of the Acts Interpretation Act 1901.

^[15] Schedule 2, subitem 9(1). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[16] See Telecommunications Act 1997, subsection 121(4) and section 570.

^[17] Schedule 2, item 5, new section 121.

^[18] Schedule 2, subitem 9(1).

^[19] Explanatory memorandum, p. 11.