ACCC Telecommunications (Infringement Notices) Guidelines 2024

The ACCC Telecommunications (Infringement Notices) Guidelines 2024 explain how the Australian Competition and Consumer Commission will generally approach infringement notices for certain alleged contraventions under the Telecommunications Act 1997. They are made under subsection 572M(5) of that Act and are now in force.

For businesses, the key point is that these Guidelines are about enforcement process and discretion. They do not replace the underlying legal duties in the Telecommunications Act. Instead, they explain when the ACCC may consider issuing an infringement notice, what a notice must contain, how long a recipient usually has to respond, how to ask for more time, how to request withdrawal, and what follows if the notice is paid, withdrawn or not paid.

The Guidelines also make several practical points very clear. First, the ACCC says it will generally only consider issuing an infringement notice where it is likely to seek a court-based resolution if the recipient does not pay. Second, the ACCC will generally publicise paid notices. Third, the ACCC says the Guidelines provide general guidance only and that outcomes will be decided case by case. So a notice should be treated as a serious enforcement event with legal, operational and reputational consequences, not as a routine administrative step.

The instrument is titled the ACCC Telecommunications (Infringement Notices) Guidelines 2024. It was dated 28 August 2024 and registered on the Federal Register of Legislation on 30 August 2024. Under the commencement clause, the Guidelines commence at the start of the day after the day they are registered. That means they commenced on 31 August 2024.

The instrument is in force. Businesses should still check the current Federal Register entry before relying on any legislative instrument, especially if they are dealing with an active ACCC matter, because amendments, repeal or replacement instruments can change the position over time.

These Guidelines are relevant mainly to telecommunications sector participants whose conduct may fall within the listed civil penalty provisions in Part 8 of the Telecommunications Act. The official text identifies a specific group of provisions and related obligations. These include wholesale-only requirements, class exemption conditions, functional separation undertakings, non-discrimination obligations, reporting after revocation notices, change-of-control notifications, publication of offers and statements of differences for access agreements, and anti-avoidance schemes.

In some circumstances, the Guidelines also extend to section 68 and section 101 issues, but only to the extent that the relevant carrier licence condition or service provider rule relates to the listed civil penalty provisions in sections 142C, 143, 143B, 151ZA, 151ZB, 151ZD, 151ZF, 151ZG, 151ZH or 151ZI of the Telecommunications Act.

In practical terms, this page is most relevant to carriers, carriage service providers, wholesale network operators, infrastructure operators, and in-house legal or compliance teams dealing with structural separation, access, wholesale supply, publication obligations, reporting obligations or governance obligations under Part 8. A business that simply buys phone or internet services for ordinary internal use, such as a retailer, café, manufacturer or professional services firm, would usually be outside the direct scope of these Guidelines.

The Guidelines are made for the exercise of infringement notice powers by authorised infringement notice officers under Part 31B of the Telecommunications Act. They set out the discretionary matters an authorised officer would generally consider when deciding whether to issue a notice. They also set out the process for payment of an infringement notice penalty and the effect of payment.

The ACCC says the Guidelines provide general guidance to industry about its approach, but it will determine the most appropriate outcome on a case-by-case basis, taking into account the alleged contravention, the business or individual involved, and the impact of the conduct. That means the Guidelines are important, but they are not binding rules that guarantee a particular enforcement outcome in every matter.

The instrument also states that the Guidelines take into account the objects of the Telecommunications Act. Those objects include promoting the long-term interests of end-users, the efficiency and international competitiveness of the Australian telecommunications industry, and the availability of accessible and affordable carriage services that enhance the welfare of Australians.

An authorised infringement notice officer may give an infringement notice if they have reasonable grounds to believe that a person has contravened one of the listed civil penalty provisions in Part 8 of the Telecommunications Act. The listed provisions cover a defined set of carrier separation and related obligations.

The official text identifies the following categories of conduct: wholesale-only requirements and ancillary conduct, compliance with conditions and limitations of class exemption determinations and ancillary conduct, compliance with standard, joint or deemed functional separation undertakings and ancillary conduct, non-discrimination obligations and ancillary conduct, reporting obligations following a revocation notice and ancillary conduct, notification of changes in control of a person who gave an undertaking and ancillary conduct, publication of offers and statements of differences for access agreements and ancillary conduct, and anti-avoidance schemes and ancillary conduct.

In some cases, an infringement notice may also be given for section 68 or section 101 contraventions where the relevant licence condition or service provider rule relates to those listed Part 8 provisions. The notice must be given within 12 months after the day on which the alleged contravention took place.

For businesses, the practical trigger is not just whether a rule exists, but whether your conduct falls within one of these listed civil penalty pathways. If your business is operating in wholesale supply, separation, access or related governance areas, you should map your obligations carefully rather than assuming the Guidelines only apply to major carriers.

The ACCC says infringement notices are designed to provide a timely and cost-efficient enforcement outcome for relatively minor alleged contraventions, without the need for litigation. But the Guidelines also say that, generally speaking, an authorised infringement notice officer will only consider issuing a notice where the ACCC is likely to seek a court-based resolution if the recipient chooses not to pay. Before a notice is given, the ACCC will have turned its mind to the prospect of non-compliance and be prepared to proceed to court as a likely alternative.

That is a significant practical point. An infringement notice is not described as a casual warning or a low-level administrative step. The ACCC presents it as an enforcement option used where litigation is a realistic next step if the matter is not resolved.

The Guidelines list a range of factors that may be considered in deciding whether a notice should be given. These include the nature, circumstances and seriousness of the conduct, the duration of the conduct and whether it is ongoing, the impact of the conduct and whether it has caused significant harm or detriment, the corporate culture of compliance of the person, and the need for specific and general education or deterrence.

The Guidelines also give examples of when a notice may be more likely. These include where the alleged conduct is relatively minor or less serious, where non-compliance is isolated or non-systemic, where harm or detriment is lower, where the facts are not in dispute or the circumstances are not controversial, and where notices form part of a broader telecommunications industry compliance and enforcement program following ACCC concerns about industry-wide conduct.

They also give examples of when a notice may be less likely and other enforcement action may instead be considered more appropriate. These include where the alleged conduct is more serious, where there has been significant harm or detriment, where a significant financial or other advantage was obtained, where multiple alleged contraventions occurred or occurred over an extended period, where the conduct may be continuing, where there are questions about whether the conduct occurred within the 12-month notice window, where the matter raises complex interpretation issues, and where the ACCC has previously taken action against the person, particularly if that action was recent or very similar.

The Guidelines expressly say an authorised infringement notice officer may give multiple infringement notices, each relating to a separate alleged contravention, where they consider it appropriate to do so. In deciding whether to give more than one notice, the officer may consider whether there have been systemic instances of non-compliance, whether the alleged contraventions occurred in a number of states or territories, and whether multiple notices would help deter similar conduct by the specific business or individual involved or by the broader industry.

For larger telecommunications groups, this matters because a compliance issue may not be confined to one transaction or one business unit. If the same issue appears across multiple regions, products or entities, the ACCC may view that as systemic. Businesses should therefore investigate whether an issue is isolated or repeated as soon as a concern is raised.

The Guidelines set out the content an infringement notice will include. Among other things, the notice will state the name of the person to whom it is given, the date on which it is given, brief details of the alleged contravention, the date of the alleged contravention, and the civil penalty provision that was allegedly contravened.

The notice will also state the relevant penalty units and the amount of the infringement notice penalty, the date by which payment can be made, how payment is to be made and to whom it should be addressed. It must also state that the recipient can request a longer period for payment, that if payment is made the ACCC will not institute Federal Court proceedings in respect of the alleged contravention, and that the authorised infringement notice officer may withdraw the notice within 28 days of giving it. The notice will also identify the authorised infringement notice officer and provide contact details for enquiries.

For a business receiving a notice, the first review should be procedural as well as substantive. Check the alleged provision, the alleged conduct date, the date the notice was given, the payment deadline, and the contact details. Then move quickly to preserve records and assess whether the facts are disputed, whether an extension is needed, and whether there are grounds to request withdrawal.

Generally, the compliance period for payment of a penalty under an infringement notice is 28 days. However, the authorised infringement notice officer may specify a longer compliance period in the notice.

The recipient may request a longer period for payment. The Guidelines say the request should set out why a longer period is appropriate. In doing so, the recipient should advise the ACCC whether it intends to pay the infringement notice penalty, why it is not able to pay within the current compliance period, and why it anticipates it will be able to comply if the period is extended.

The request should allow sufficient time for the authorised officer to consider it. Generally speaking, requests should be made no later than two weeks before the payment due date. Requests should be directed to the contact officer specified in the notice in the first instance. The ACCC will notify the recipient in writing whether or not a longer period is granted.

Businesses should not leave this until the last few days. If an extension may be needed, gather the reasons and supporting material early and send the request promptly to the nominated contact officer.

An infringement notice may be withdrawn by an authorised infringement notice officer, but to be effective the withdrawal must occur within 28 days after the notice was given. The recipient may request withdrawal.

The Guidelines set out the minimum requirements for a withdrawal request. It must be made within the withdrawal period, must be in writing, must include the reasons withdrawal is sought, and may include additional evidence or information that may assist the officer in deciding whether to withdraw the notice. Requests should be directed in the first instance to the contact officer specified in the notice.

The recipient should allow sufficient time for ACCC consideration and possible withdrawal within the 28-day period. Generally speaking, requests should be made no later than two weeks before the end of the withdrawal period. The authorised infringement notice officer will only withdraw the notice within that period if satisfied it is appropriate to do so, based on the information provided in the request and the information the ACCC already has.

The Guidelines also make an important point about penalty amounts. Because the penalty amount is set by the Telecommunications Act, the ACCC is unable to alter the penalty amount set out in an infringement notice. In practice, that means a recipient can ask for more time or ask for withdrawal, but cannot negotiate the amount down through this process.

If the penalty is paid in full to the ACCC within the compliance period, and the infringement notice is not withdrawn, the ACCC may not bring proceedings under Part 31 against the person for the imposition of a civil penalty for that alleged contravention. The Guidelines also say that any liability of the person for the alleged contravention that is the subject of the infringement notice is discharged.

If the notice is not paid, there is no legal obligation to pay it. But the ACCC may take further action, including commencing proceedings for the imposition of a pecuniary penalty under Part 31 of the Telecommunications Act. The Guidelines also note that infringement notice penalties are lower than the maximum penalty a court could impose if the recipient is found to have contravened the relevant civil penalty provision.

If a notice is withdrawn after payment, the penalty paid must be refunded. But withdrawal does not necessarily end the matter. The ACCC says it will consider on a case-by-case basis whether further action is appropriate, and that action may include civil penalty proceedings in respect of the alleged contravention or contraventions that were the subject of the notice.

For businesses, the practical message is that payment can provide finality for the alleged contravention covered by the notice, but non-payment can leave the matter open to litigation, and withdrawal can still be followed by further enforcement action.

The Guidelines draw a distinction between a notice being issued and a notice being paid. The ACCC says it will not ordinarily publicise the mere fact that a person has been given an infringement notice. It will also generally not publicise that a person did not pay the penalty specified in the notice.

However, the ACCC says that, in accordance with its principle of transparency, it will publicise when a person has paid a penalty specified in an infringement notice. It will maintain a register on its website listing paid infringement notices. Entries on the register will ordinarily contain the person who paid the notice, the infringement notice number, the date paid, and the section of the relevant legislation. The ACCC also says it is likely to issue a media release describing the alleged matters and the fact that payment has been made.

That means a decision to pay is not simply a private administrative resolution. It can become a public compliance event that affects customer confidence, investor communications, procurement relationships and board reporting. Businesses should factor that into their response planning.

Telecommunications businesses that may fall within these provisions should not wait for an ACCC notice before checking their systems. The Guidelines show that the ACCC may look closely at seriousness, duration, harm, compliance culture, whether conduct is ongoing, and whether issues are systemic. Those are all areas where internal records and governance can matter.

Depending on your business model, useful review areas may include wholesale-only settings, compliance with class exemption conditions, functional separation undertakings, non-discrimination controls, reporting after revocation notices, change-of-control notifications, publication of offers, statements of differences for access agreements, and any internal arrangements that could raise anti-avoidance concerns.

If your business structure, ownership, network arrangements or wholesale supply model is changing, check early whether those changes affect your obligations under Part 8. The Guidelines make clear that the ACCC may consider both the conduct itself and the broader compliance culture of the business.

These Guidelines are best read as an enforcement roadmap. They tell you how the ACCC may use infringement notices, but they do not tell you everything about the underlying legal obligations. A business needs to read both the Guidelines and the relevant provisions of the Telecommunications Act 1997.

For smaller telecommunications operators, the practical questions are straightforward. Which of the listed provisions could apply to us? What records would show our compliance position? Who inside the business owns regulatory responses? How would we handle a notice within 28 days? If those questions do not have clear answers, your compliance framework may need work.

For larger operators and groups, the focus should include whether issues are isolated or systemic, whether conduct spans multiple states or territories, and whether governance arrangements are strong enough to identify and escalate Part 8 risks early. The Guidelines show that these factors can influence the ACCC's enforcement approach.

This page is general information only. If your business receives an infringement notice or is unsure whether the listed Part 8 provisions apply, obtain advice on the specific Telecommunications Act obligations and the response options available within the relevant time limits.

Businesses often ask the same practical questions when reading these Guidelines. The short answers are: the Guidelines commenced on 31 August 2024, they do not create the underlying telecom obligations, they are not binding rules that force the ACCC to act the same way in every case, the penalty amount in a notice cannot be negotiated because it is set by the Act, and the usual payment period is 28 days unless a longer period is specified or granted.

Another common question is whether a business must pay. The answer is no, there is no legal obligation to pay an infringement notice. But non-payment can lead to further ACCC action, including court proceedings. Businesses also ask whether a notice will be public. The ACCC says it will not ordinarily publicise the mere fact that a notice was issued or that it was not paid, but it will publicise paid notices and is likely to issue a media release about them.