Telecommunications (Section of the Telecommunications Industry – Portability Service Suppliers) Determination 2025

The determination rests on a small set of concepts stated in the text. Each concept is defined or linked to the Act, and forms the basis for identifying who is captured.

Number portability is defined in the instrument as the right of a customer receiving a service in relation to a portable number to change the carriage service provider involved in providing the service, the carrier network involved in providing the service, or both, and retain the same telephone number (see s 5). The determination instructs that detailed rules for number portability are set out in the Telecommunications Numbering Plan 2025, which is available on the Federal Register of Legislation (s 5 note). The definition therefore separates the normative right (the customer's right to retain a number when switching provider or network) from the technical and administrative rules found in the Numbering Plan.

Portability services is the core functional concept that determines capture. The instrument defines portability services as "supporting services provided by or to carriers or carriage service providers in relation to the provision and operation of number portability" and then enumerates three categories: port administration services; ported number register database maintenance or provision; and the provision of network information services, or intelligent network database services, for call routing (s 5). The phrase "provided by or to carriers or carriage service providers" is part of the definition. This phrasing brings within scope both suppliers who directly provide those supporting services and entities that provide the services to carriers or carriage service providers.

The instrument relies on the Act for a set of foundational terms. It specifies that expressions such as "carriage service provider", "carrier", and "telecommunications activity" carry the same meanings they have in the Act, and it draws attention to the Act provisions cited in the note (sections 7, 87 and 109 of the Act) in support of that cross-reference (s 5 note). The application clause further requires the entity to be "carrying on a telecommunications activity as defined in section 109 of the Act" as a necessary condition for capture (s 7(2)(a)).

The decision-making concept is present in s 7(1), which states that the Australian Communications and Media Authority (ACMA) may determine that persons carrying on, or proposing to carry on, one or more specified kinds of telecommunications activity, constitute a section of the telecommunications industry for the purposes of Part 6 of the Act. The instrument therefore is both declaratory (it declares a section) and procedural (it acknowledges ACMA's power to make such determinations).

Finally, the instrument contains an interpretive rule about references to other instruments: legislative instruments are read as in force from time to time and other instruments are read as in force or existing from time to time (s 6). This establishes that the determination contemplates an evolving regulatory context rather than frozen cross-references.

The instrument defines the affected population narrowly and by two cumulative conditions. The determination applies to persons who satisfy both limbs in s 7(2):

• they must be "carrying on a telecommunications activity as defined in section 109 of the Act" (s 7(2)(a)); and
• they must be "providing portability services" as defined in s 5 (s 7(2)(b)).

Because the text imports the meaning of "telecommunications activity" from the Telecommunications Act 1997 (see s 5 note), the reach depends on that statutory definition. The instrument itself does not restate the content of section 109 of the Act; it requires those seeking to determine whether they fall within the determination to read s 109 of the Act alongside this instrument.

The definition of "portability services" captures activities that support number portability. The instrument explicitly lists port administration services; ported number register database maintenance or provision; and the provision of network information services or intelligent network database services for call routing (s 5). The definition uses the language "provided by or to carriers or carriage service providers", which means the capture extends to entities that either directly supply those supporting services to carriers or carriage service providers, or are recipients of such services from carriers or carriage service providers. That phrasing therefore potentially includes third-party suppliers, subcontractors, systems operators, and parties on the receiving end, depending on their relationship to carriers or carriage service providers.

The instrument also makes clear that ACMA may determine persons "proposing to carry on" the specified activities constitute the section (s 7(1)). The "proposing to carry on" language is an inclusion point for potential market entrants or entities in the process of establishing relevant operations. The instrument does not specify how "proposing to carry on" is to be evidenced or determined. That evidentiary or procedural matter would rest with ACMA or relevant procedural instruments.

Because the instrument repeals the 2015 determination (s 4), persons who were covered under the repealed instrument should treat this 2025 determination as the operative classificatory instrument. The text does not supply transitional provisions or grandfathering rules; it simply states the repeal. Any questions about transitional rights, obligations, or continuity of regulatory status are therefore left to the Act or to ACMA decisions and other instruments.

Who does not fall within the instrument can be stated equally precisely by reference to the two-limb test. Entities that either are not carrying on a telecommunications activity as defined in s 109 of the Act, or who do not provide any of the defined "portability services", are not captured by this determination. The instrument does not sweep beyond those two statutory conditions.

The instrument itself does not create express operational duties, affirmative obligations, or civil or criminal penalties. The text functions as a classification instrument: it declares a named sector within the statutory architecture of the Telecommunications Act 1997 (s 8). As such, it creates the legal precondition for Part 6 of the Act to operate in relation to that section of industry, because it expressly identifies the section "for the purposes of Part 6 of the Act" (s 7(1) and s 8).

Because the instrument delegates definitional content back to the Act in several places, rights and duties that will be relevant to affected persons are supplied by the Act and by other instruments referenced by the Act. The determination points readers to two immediate sources they must consult for operational rules that affect duties and rights:

• the Telecommunications Numbering Plan 2025 for the procedural and technical rules for number portability (s 5 note); and
• the Telecommunications Act 1997 itself for the meanings of "carriage service provider", "carrier", and "telecommunications activity", and for Part 6 obligations, which the instrument contextualises but does not restate (s 5 note; s 7(1)).

Textually, the determination creates rights and duties only indirectly by placing persons into the statutory category. It does not, for example, impose a statutory duty to maintain a ported number database, require particular interconnection arrangements, or set charging schedules. Such obligations, if any, arise from Part 6 of the Act and subordinate instruments made under the Act. The instrument therefore serves as a trigger mechanism: being designated as a "Portability Service Supplier" is the condition that may make specific regulatory duties applicable under Part 6 or other instruments.

Another property of duties and rights under the instrument is that it contemplates both existing and proposed activities. The ACMA may determine persons "carrying on, or proposing to carry on" specified telecommunications activity constitute a section (s 7(1)). In practice, this gives ACMA scope to treat market entrants as being within the class at an earlier stage than an instrument limited to current operators. The instrument does not define the procedural steps for ACMA to assess proposals or the method for notifying or excluding persons, so the practical rights to procedural fairness, consultation, and review will be determined by ACMA practice, the Act and the Legislation Act 2003 where they apply.

Finally, the instrument establishes a general interpretive rule about cross-references to other instruments: references are to those instruments "as in force from time to time" (s 6). That rule affects duties and rights by signalling that the regulatory obligations that attach to the designated section can change as the other instruments change. A person designated under this instrument should therefore expect that the substantive content of duties and rights may evolve with updates to the Numbering Plan or with legislative change.

This determination itself is silent on penalties and enforcement mechanisms. It contains no express criminal or civil sanction, no infringement notice scheme, and no administrative enforcement powers. The instrument’s operative effect is to define a section of the telecommunications industry for the purposes of Part 6 of the Telecommunications Act 1997 (s 7(1) and s 8). Therefore, any penalties or enforcement measures that apply to "Portability Service Suppliers" will derive from the Act (including Part 6), the Telecommunications Numbering Plan 2025 where relevant procedural rules are tied to compliance mechanisms, and any other subordinate instruments made under the Act.

Two implications follow directly from the instrument's text. First, the determination functions as an enabling classification only; it does not itself attach penalties. Persons seeking to understand enforcement exposure must look to the Act and to Part 6 in particular, because the instrument is explicitly made for purposes of that Part (s 7(1)). Second, because the instrument contains a cross-reference rule for other instruments (s 6), the enforcement landscape may shift as those instruments are varied. For example, if the Numbering Plan 2025 contains enforcement provisions or references enforcement provisions in the Act, the effect of this determination is that changes to those provisions will alter the enforcement context for the designated section.

The instrument notes the making power in s 110(3) of the Telecommunications Act 1997 (s 3). It does not state what s 110(3) empowers ACMA to do, nor does it state whether the act of designating a section triggers automatic registration, notification, or monitoring responsibilities. Any ACMA enforcement action against a party identified under this instrument must therefore be grounded in the Act or in secondary instruments made under the Act, not in this determination alone.

Finally, the repeal of the 2015 Determination (s 4) may have enforcement and compliance consequences in practice, because the text does not set out transitional enforcement arrangements. Whether enforcement actions that were premised on the 2015 instrument continue, or how outstanding compliance matters are to be treated, is a question the instrument leaves to the Act and to ACMA.

The instrument situates itself within a broader legal web by express cross-reference. It is made under subsection 110(3) of the Telecommunications Act 1997 (s 3), and it relies on the Act for definitions and the purpose clause linking the designated section to Part 6 of the Act (see s 5 note; s 7(1)). The instrument instructs that expressions such as "carriage service provider", "carrier" and "telecommunications activity" have the same meanings as they do in the Act (s 5 note, which cites sections 7, 87 and 109 of the Act). Because the text does not reproduce the content of those Act provisions, readers must consult the Act itself to determine the content of those cross-referenced terms.

Section 6 governs how references to other instruments are to be read. It provides that references to any other legislative instrument are references to that instrument "as in force from time to time", and references to any other kind of instrument are references to that other instrument "as in force or existing from time to time" (s 6). The provision therefore makes the determination dynamically linked to changes in other instruments, rather than frozen to their state at the time of making.

The instrument specifically points to the Telecommunications Numbering Plan 2025 as the source for detailed rules on number portability (s 5 note). That means operational rules governing how number portability is delivered, including technical, numbering and possibly procedural norms, are to be found in that Plan, and those rules interact with this instrument because the instrument captures providers of the supporting services that make portability work.

The instrument also makes a procedural link to the Federal Register of Legislation by specifying that it commences at the start of the day after it is registered on that Register and by noting where the Numbering Plan is available (ss 2 and 5 note). For interpretive purposes, it refers users to the Acts Interpretation Act 1901 and to the Legislation Act 2003 for rules about references to Commonwealth Acts and legislative instruments (s 6 notes 1 and 2). The inclusion of those notes signals that interpretation and application of the determination will be shaped by general statutory interpretation rules.

By repealing the Telecommunications (Section of the Telecommunications Industry - Portability Service Suppliers) Determination 2015 (s 4), the instrument replaces an earlier instrument. The text does not set out transitional provisions, so how obligations, licences, registrations or ongoing proceedings that were set under the 2015 determination interact with the 2025 instrument will depend on the Act and on ACMA practice. The instrument does not identify other Commonwealth Acts that may be engaged, but the cross-reference to the Acts Interpretation Act 1901 and Legislation Act 2003 makes clear that standard statutory interpretation and instrument handling rules apply.

In sum, this instrument interacts with other laws primarily by classification and cross-reference. Its practical regulatory bite will be determined by Part 6 of the Telecommunications Act 1997, the Telecommunications Numbering Plan 2025, and any subordinate instruments or ACMA decisions that rely on the section designation.

This instrument contains a single explicit amendment action: it repeals the Telecommunications (Section of the Telecommunications Industry - Portability Service Suppliers) Determination 2015 (Registration No. F2015L00292). The repeal is immediate in effect upon commencement of the 2025 Determination (s 4). The instrument does not record any other amendments to previous instruments, nor does it set out transitional machinery, savings clauses, or specific repeal-related modification of rights or obligations arising under the 2015 Determination.

The instrument itself is a fresh legislative instrument: it states its name (s 1) and commencement rule (s 2). It is made under subsection 110(3) of the Telecommunications Act 1997 (s 3). The determinate lifecycle steps implicit in the text are that it will be registered on the Federal Register of Legislation, will commence the day after registration, and will take effect as the operative instrument replacing the 2015 Determination (ss 2 and 4).

Section 6 creates a forward-looking interpretive approach to references to other instruments, by specifying that references are to instruments "as in force from time to time" (s 6). That means the 2025 instrument contemplates being read alongside updated versions of other instruments and so it is structured to be durable against subsequent amendment of those cross-referenced instruments.

The instrument does not include a schedule of saved actions, transitional notifications, or staging arrangements. There are no temporal or phased implementation clauses. Any transitional arrangements or amendments consequential to the repeal of the 2015 Determination will need to be identified in the Act, in related subordinate instruments, or in ACMA decisions. The instrument also does not contain a clause delegating amendment-making power or a procedure for future amendment; amendments would proceed by means of further legislative instruments made under the Act.

Because the instrument is short and focused, its amendment history, as recorded in the text, is limited to the replacement of the 2015 Determination. Readers should expect the public registers (for example the Federal Register of Legislation) to show the 2015 instrument as repealed and to show this 2025 instrument as the operative instrument from the day after registration.

The text of the determination contains no references to judicial decisions, tribunal determinations, or any litigation history. It does not name any cases, nor does it record any disputes or prior legal interpretation. The instrument is purely declaratory and administrative in nature: it defines a designated section of the industry and repeals an earlier instrument.

Because the instrument makes cross-references to the Telecommunications Act 1997 (see s 3 and s 5 note) and to the Telecommunications Numbering Plan 2025 (s 5 note), any litigation or administrative review that concerns the practical consequences of this instrument would be found in disputes about the Act, ACMA's exercise of powers under the Act, or the content or application of the Numbering Plan. Those consequences, however, are outside the text of this instrument and therefore are not recorded here.

Practical implication for practitioners is that there is no litigation history recorded in the instrument itself to consult. If parties wish to know whether the designation has been the subject of challenge, they must search external sources: ACMA determinations, judicial review records, tribunal files and court databases. The instrument does not provide transitional or saving clauses referencing ongoing litigation under the repealed 2015 Determination; therefore the status of any proceedings commenced under the 2015 instrument would need to be checked against the Act and court records.

In short, the instrument contains no litigation history; it is silent on past or pending disputes.

The brevity of the instrument and its choice to be classificatory create a number of practical points that parties should note carefully. These points are textual and arise from how the instrument frames capture, cross-references, repeal, and commencement.

1. Two-limb capture test. The instrument requires both that an entity be "carrying on a telecommunications activity as defined in section 109 of the Act" and that it be "providing portability services" (s 7(2)). A business that provides services listed in the portability services definition but is not carrying on a telecommunications activity as defined in s 109 of the Act will not be captured by this determination. Conversely, a carriage service provider that is not providing any of the defined portability services will also not be captured. Parties must therefore check both limbs, not merely one.

2. Definition breadth: "provided by or to carriers or carriage service providers." The portability services definition captures services provided by carriers or carriage service providers and services provided to them (s 5). This phrasing potentially captures third-party suppliers and also recipients of those services. The instrument does not limit capture to entities that own or operate number portability infrastructure; it extends to those in supply and customer relationships with carriers or carriage service providers.

3. "Proposing to carry on" language. s 7(1) allows ACMA to determine that persons "carrying on, or proposing to carry on" specified activities constitute a section. That could bring proposed market entrants within the ambit of the designation at an early stage. The instrument does not define how ACMA will treat proposals or what evidence will be required.

4. No operational detail or transitional provisions. The instrument does not impose operational rules, set fees, or provide transitional arrangements for entities affected by the repeal of the 2015 Determination (s 4). Therefore, entities must look to the Act, to the Numbering Plan 2025, and to ACMA for operational requirements and transitional guidance.

5. Dynamic cross-references. s 6 makes references to other instruments dynamically linked to their current versions. Changes to the Numbering Plan or to other instruments can therefore change the regulatory duties that flow from being captured by this instrument. That puts an ongoing monitoring obligation on affected parties.

6. The instrument does not itself create enforcement authority. Because the determination merely declares a section of industry, enforcement rights and penalties are not in the instrument. Parties must identify enforcement exposure in the Act or subordinate instruments. This can be a trap for those who assume the designation itself contains operative compliance rules.

7. Reliance on definitions in the Act. The instrument refers readers to defined terms in the Act (s 5 note). Practitioners must check the Act for precise meanings of core terms like "carriage service provider", "carrier" and "telecommunications activity". The instrument's limited text can create misclassification risk if those Act definitions are overlooked.

8. Repeal without expressed savings. The 2015 Determination is repealed (s 4) but no savings, transitional continuity clauses or notices are included. Those seeking to rely on past authorisations or arrangements under the 2015 Determination should verify whether relevant rights or obligations survive, and if so, on what basis.

9. Commencement timing. The instrument commences the day after registration on the Federal Register of Legislation (s 2). That timing matters for those planning operational or compliance steps, particularly where ACMA might move quickly to apply Part 6 measures to the newly designated section.

10. Delegation and procedural detail absent. The instrument sets a framework for ACMA action but does not spell out processes for designation, notification, consultation, or review. Those procedural matters will be handled under the Act or by ACMA practice and may afford limited timeframes or consultation opportunities.

Each of these points can generate practical compliance, commercial and contractual consequences even though the instrument itself is short and contains no operational commands. Parties should read the instrument together with the Telecommunications Act 1997, the Telecommunications Numbering Plan 2025, and ACMA materials to understand the full legal and regulatory consequences of designation.

Compliance with this determination is primarily a matter of identifying whether the business or entity falls within the designated section and then taking the follow-up steps that the Act, the Numbering Plan and ACMA require. The instrument itself does not prescribe operational compliance steps. The following is a concise, source-grounded roadmap.

1. Confirm status under the two-limb test. Review whether the entity is "carrying on a telecommunications activity as defined in section 109 of the Act" and whether it is "providing portability services" as defined in s 5. Both conditions must be satisfied for the determination to apply (s 7(2)). If either limb is absent, the entity is not captured by this determination.

2. Map services to the portability services definition. The instrument lists three categories of portability services: port administration services; ported number register database maintenance or provision; and the provision of network information services or intelligent network database services for call routing (s 5). Map your business activities and contracts against those categories, including services provided "by or to" carriers or carriage service providers.

3. Check contractual relationships with carriers and carriage service providers. Because the definition uses "provided by or to carriers or carriage service providers", determine whether your role in the supply chain is upstream, downstream, or intermediated, and whether that contractual relationship brings you into the definition (s 5).

4. Investigate the Numbering Plan 2025. The instrument explicitly points to the Telecommunications Numbering Plan 2025 for rules relating to number portability (s 5 note). Obtain and review that Plan for operational, technical and procedural requirements tied to number portability, and for any compliance mechanisms it references.

5. Review the Telecommunications Act 1997 Part 6. The designation is "for the purposes of Part 6 of the Act" (s 7(1) and s 8). Identify which provisions of Part 6 apply to designated sections, including any reporting, access, pricing or technical obligations. The determination does not itself state those obligations.

6. Monitor ACMA processes and publications. The instrument is made under s 110(3) of the Act and expressly contemplates ACMA determinations (s 3; s 7(1)). Track ACMA guidance, determinations, and consultation papers that relate to the "Portability Service Suppliers" designation for procedural or substantive directions.

7. Recordkeeping and evidence of "proposing to carry on". If you are a prospective entrant, be prepared to evidence your "proposing to carry on" status if ACMA treats proposals as falling within the designation (s 7(1)). Keep project documentation, contracts, capability statements and timelines that demonstrate whether and when you entered into relevant activities.

8. Check for transitional issues after repeal. The instrument repeals the 2015 Determination (s 4) but contains no savings clauses. If you relied on the 2015 instrument, identify whether your rights or obligations continue under the Act or whether you need to re-assert or re-register under current ACMA processes.

9. Update compliance manuals and risk registers. Because the instrument links to other instruments "as in force from time to time" (s 6), include ongoing monitoring of changes to the Numbering Plan and related instruments in compliance programmes. Changes to those instruments can alter the obligations that attach to your designated status.

10. Seek clarification from ACMA where necessary. The instrument leaves procedural matters open. Where there is uncertainty about whether a particular activity is "portability services" or whether an entity is a carriage service provider under the Act, engage ACMA or seek a formal determination, or take legal advice, to reduce classification risk.

In short, compliance is a two-step process: first, determine whether you are captured by the 2025 Determination by applying the instrument’s definitional test; second, if captured, align operations with the regulatory duties and technical rules in Part 6 of the Telecommunications Act 1997 and the Telecommunications Numbering Plan 2025, and follow ACMA processes. The instrument creates the classification framework but not the substantive rules; those must be sourced from the Act, the Numbering Plan and any ACMA instruments or directions that apply to the designated sector.