Document ID: chunk:federal_register_of_legislation:F2021L01123:reg:4:p8
Version: federal_register_of_legislation:F2021L01123
Segment Type: reg
Provision Reference: reg 4 (pt 8/12)
Character Range: 19393–22450

term discloses sensitive private, commercial or confidential information. Any such request must be made before the undertaking is executed by the ACMA. The ACMA will carefully consider, but is under no obligation to agree to, any such request.

    12.12 The terms of an enforceable undertaking offered should:
               establish a relationship between the specified action and the contravention of the BSA or BSA code

               be proportionate to the impact of the breach or risk of future contravention

               be readily understood

               be capable of implementation

               include action which is capable of being measured or verified objectively.

    Offering an enforceable undertaking

    12.13 The person offering the undertaking must have the requisite authority to negotiate and bind the regulated person or entity.

    12.14 Once offered, it is then a matter for the ACMA to determine whether the undertakings offered provide, in the light of the facts of the case, an effective and appropriate regulatory outcome.

    12.15 A person wishing to offer the ACMA an enforceable undertaking should generally raise it, in the first instance, with the ACMA officer with whom they have been dealing. While ACMA officers may be authorised to negotiate an undertaking, the decision to accept the terms of an undertaking is made by the Authority.

    12.16 The person offering the enforceable undertaking must execute the undertaking first. The enforceable undertaking will only come into effect when the Authority has executed the undertaking given.

    Publication

    12.17    The ACMA's general approach is that it will publicise the acceptance of the enforceable undertaking by the ACMA. As acceptance of an undertaking is made public, so too will any decision by the ACMA to vary, withdraw or cancel an enforceable undertaking.

    12.18  It is also the ACMA's practice to publish all enforceable undertakings on its website www.acma.gov.au (see subsection 205W(5)). As noted in subclause 12.11, particular terms of an enforceable undertaking may, however, not be published. See clauses 8 and 16.

13 Infringement notices

    13.1 Infringement notices are designed to provide a timely, cost-efficient enforcement outcome and an alternative to court proceedings. Only certain limited provisions of the BSA are designated as infringement notice provisions.

    13.2 There is no obligation on the ACMA to issue an infringement notice (section 205ZD). There is a range of factors which the ACMA may consider in determining whether an infringement notice should be given (see clause 9). Matters where an infringement notice may not be appropriate include where:
               the ACMA has previously taken action against the recipient for similar contraventions

               the contraventions have occurred over an extended period of time

               the recipient has, as a consequence of the contraventions, obtained a financial or other advantage, to the detriment of others

       