9 July 2012: Under the Telecommunications Act 1997 (Telecommunications Act), an owner of a network unit must have a carrier licence or a nominated carrier declaration if the network unit is used to supply a carriage service to the public, unless an exemption applies.
Supplying a carriage service to the public means supplying carriage services to people outside the ‘immediate circle’ of the network unit owner, as defined in section 23 of the Telecommunications Act 1997. A person’s ‘immediate circle’ includes, for example, a person’s employee or partner. Section 23(2) of the Telecommunications Act allows the Minister to make a determination that a person falls within another person’s immediate circle.
A ministerial determination was made in 1998 under subsection 23(2) of the Telecommunications Act. The ministerial determination extends the ‘immediate circle’ of a network unit owner to include joint venture partners and contractors, thus enabling network unit owners to supply carriage services to those persons without being required to hold a carrier licence under the Telecommunications Act.
The ministerial determination and accompanying explanatory statement are available here.
- Telecommunications Act 1997 – Determination under subsection 23(2), No.1 of 1998 (the ministerial determination)
- Explanatory Statement accompanying the Telecommunications Act 1997 – Determination under subsection 23(2), No.1 of 1998 (PDF, 417.4 KB)
Consultation on revision of the definition of ‘joint venture’
Recently, guidance has been sought on the coverage of the class exemption from carrier licensing obligations provided for joint venture entities by the existing ministerial determination.
The existing ministerial determination covers specified joint venture arrangements where the common undertaking of the joint venture is for the sharing of ‘profit’. However, there are many joint venture arrangements where the common undertaking of the joint venture is the sharing of ‘product’ rather than ‘profit’. Such arrangements are common in the resources sector.
The policy intention has been that the expression ‘profit’ in the definition of ‘specified joint venture’ includes ‘product’. However, to clarify the intended coverage of the class exemption and to remove any doubt on the issue, it is proposed that a technical amendment be made to the definition of a ‘specified joint venture’ in the determination. Specifically, in the definition of ‘specified joint venture’, it is proposed that the words ‘or product’ would be inserted after the word, ‘profit’.
This proposed amendment will ensure the determination expressly captures joint venture arrangements more broadly and better align the definition of a ‘joint venture’ as used in common practice.
The Department seeks submissions on the draft amending instrument above by Friday 20 July 2012.