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Communications Legislation Amendment (Information Sharing and Datacasting) Bill 2007

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2004-2005-2006-2007

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

COMMUNICATIONS LEGISLATION AMENDMENT (INFORMATION SHARING AND DATACASTING) BILL 2007

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Communications, Information Technology and the Arts,

Senator the Hon. Helen Coonan)

 

 

COMMUNICATIONS LEGISLATION AMENDMENT (INFORMATION SHARING AND DATACASTING) BILL 2007

 

OUTLINE

 

The Communications Legislation Amendment (Information Sharing and Datacasting) Bill (the Bill) would amend the Australian Communications and Media Authority Act 2005 (the ACMA Act) to authorise the disclosure of certain information by the Australian Communications and Media Authority (ACMA) to the Minister for Communications, Information Technology and the Arts, Departments, government agencies and regulatory bodies.

 

ACMA frequently receives information through the performance of its functions and the exercise of its powers in relation to the regulation of broadcasting, the Internet, radiocommunications and telecommunications that would be relevant to other regulatory or administrative bodies or personnel.  As an example, ACMA and the Australian Competition and Consumer Commission (ACCC) have a common interest in the media industry - ACMA in relation to the media ownership and control rules in the Broadcasting Services Act 1992 (BSA), and the ACCC in relation to the merger approval procedures in the Trade Practices Act 1974 (TPA).  Either agency may receive information relating to the question of control of media assets that would be highly relevant to the other agency in the performance of its statutory functions. 

 

Amendments to the TPA to provide the ACCC with authority to disclose protected information have also been brought before the Parliament.  This Bill would provide complementary, but not identical, information sharing authorisations to ACMA.  This would ensure that the ACCC is not denied access to certain information obtained by ACMA that would be relevant to the ACCC’s performance of its statutory functions.  Further, legislative authorisation of the sharing of certain kinds of information would reduce overlapping or duplicate requests for information made by regulators to industry.

 

However, since ACMA routinely obtains commercially sensitive or otherwise confidential information in the performance of its functions or exercise of its powers, it is appropriate to limit authorised disclosure to those with which ACMA has an ongoing cooperative role.  The amendments in this Bill are framed accordingly.

 

This Bill would authorise ACMA to disclose certain classes of information in a limited number of circumstances, including:

·        information given in confidence to ACMA in connection with the performance of its functions or the exercise of its powers;

·       information ACMA has obtained as a result of its information-gathering powers, as set out in the BSA, the Radiocommunications Act 1992 (Radiocommunications Act) , t he Telecommunications Act 1997, and the Telecommunications (Consumer Protection and Service Standards) Act 1999 ; and

·       information given in confidence to ACMA by a government authority of a foreign country.  This reflects the important cooperative efforts undertaken by ACMA with the regulatory agencies of foreign countries in relation to issues such as offensive Internet content and child-safety online.

 

The ACMA Chair may impose conditions on the disclosure of particular information by ACMA officials. 

 

The Bill would also authorise ACMA to disclose information to other people, including:

·       the Minister for Communications, Information Technology and the Arts,

·       another Minister, if the information to be disclosed relates to a matter arising under an Act administered by that Minister; or

·       the Secretary of the relevant Minister’s department, or to another officer authorised by the Secretary, for the purposes of advising the Minister concerned; or a Royal Commission, where the protected information will assist the Commission in its inquiries.

 

Further disclosures of information may be prescribed by regulation.

 

The Bill also contains measures concerning the allocation of datacasting transmitter licences, including in relation to channel A and channel B datacasting transmitter licences.

 

These measures would amend:

·       the Radiocommunications Act to give the ACMA greater flexibility with respect to its spectrum management functions, by providing ACMA with the power to vary frequencies on which datacasting transmitter licences operate, a power which is already available in relation to other transmitter licences; and

·       the Datacasting Charge (Imposition) Act 1998 (Datacasting Charge Act) to correct anomalies concerning the application of datacasting charges in relation to channel B datacasting transmitter licences.  This amendment would give effect to the Government’s decision that a channel B licensee is not subject to an annual revenue based fee.

 

 

FINANCIAL IMPACT STATEMENT

 

This Bill is expected to have minimal impact on Commonwealth expenditure or revenue.



ABBREVIATIONS

 

 

The following abbreviations are used in this explanatory memorandum:

 

 

ACMA:                                   Australian Communications and Media Authority

 

ACMA Act:                            Australian Communications and Media Authority Act 2005

 

Bill                                          Communications Legislation Amendment (Information Sharing and Datacasting) Bill 2007

 

BSA:                                       Broadcasting Services Act 1992

 

Datacasting Charge Act          Datacasting Charge (Imposition) Act 1998

 

Radiocommunications Act:    Radiocommunications Act 1992

 

Telecommunications Act:       Telecommunications Act 1997

 

TCPSS Act :                            Telecommunications (Consumer Protection and Service Standards) Act 1999

 

 

 



 

 

 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

Clause 1 provides that the Bill, when enacted, may be cited as the Communications Legislation Amendment (Information Sharing and Datacasting) Act 2007 .

 

Clause 2 - Commencement

 

Clause 2 provides that each provision of the Bill specified in column 1 of the table in clause 2 will commence, or will be taken to have commenced, on the day or at the time specified in column 2 of that table. 

 

Item 1 of the table provides that clauses 1 to 3, and anything in the Bill that is not covered in the table, will commence on the day on which the Bill receives the Royal Assent. 

 

Item 2 of the table provides that the amendments made in Division 1 of Part 1 of Schedule 1 to the Bill will commence the day after the Bill receives the Royal Assent .  These provisions would amend the ACMA Act to provide for the disclosure of certain information by ACMA officials.

 

Item 3 of the table in Clause 2 provides that the amendments made in Division 2 of Part 1 of Schedule 1 to the Bill will commence on the later of: (a) immediately after the start of the day after the Bill receives the Royal Assent and (b) the time item 77 of Schedule 1 to the Communications Legislation Amendment (Content Services) Act 2007 (‘Content Services Act’) commences.

 

A bill to enact the Content Services Act is currently before Parliament.  Item 77 of that bill would insert a new Schedule 7 into the BSA.  In the event that Item 77 commences, Division 2 of Part 1 of Schedule 1 to the Bill would make a consequential amendment to the definition of “authorised disclosure information” that is proposed to be inserted into the ACMA Act.  However, if item 77 of the Content Services Act does not commence at all, then Item 3 of the table provides that Division 2 of Part 1 of Schedule 1 to the Bill will not commence at all.  This is because, in that case, the consequential amendment would be unnecessary.

 

Item 4 of the table in Clause 2 provides that Part 2 of Schedule 1 to the Bill will commence the day after the Bill receives the Royal Assent.  Part 2 of Schedule 1 would amend the Radiocommunications Act to permit the ACMA to vary spectrum specified in a datacasting transmitter licence after the licence has been issued.  It would also amend the Datacasting Charge Act to clarify that the datacasting charge will not apply to the provision of services on a channel B datacasting transmitter licence.

 

Clause 3 - Schedule(s)

 

Clause 3 provides that each Act specified in a Schedule to the Bill is amended or repealed as set out in the Schedule concerned.  There is one Schedule to the Bill which provides for amendments to the ACMA Act, Radiocommunications Act and Datacasting Charge Act.

 



Schedule 1 - Amendments

 

Part 1 - Amendments commencing on the day after Royal Assent

 

Item 1 - Section 3

 

Item 1 would insert a new definition, “ACMA official”, into section 3 of the ACMA Act.  The new definition provides that an “ACMA official” is a member or associate member of ACMA, a member of the ACMA staff or a person whose services are made available to the ACMA under subsection 55(1) of the ACMA Act.  Subsection 55(1) of the ACMA Act provides for officers or employees of other Commonwealth authorities to be made available to for the purposes of the ACMA.

 

The definition of “ACMA official” is significant because the provisions contained in item 3 of Schedule 1 to the Bill, which would insert new Part 7A of the ACMA Act, authorise the disclosure of “authorised disclosure information” (see definition item 2) in certain circumstances by “ACMA officials”.

 

Item 2 - Section 3

 

Item 2 would insert a new definition, “authorised disclosure information”, into section 3 of the ACMA Act.  The definition of “authorised disclosure information” is significant because the provisions contained in item 3 of Schedule 1 to the Bill, which would insert new Part 7A of the ACMA Act, authorise the disclosure of this type of information by ACMA officials.

 

While it is envisaged that the majority of authorised disclosure information would be commercial in nature, it is important to note that to the extent that such information includes “personal information” (as defined in section 6 of the Privacy Act 1988 ) the provisions of that Act will apply.  

 

The definition sets out four categories of information that fall within the meaning of “authorised disclosure information” .  These categories, including indicative examples, are discussed below.

 

(a) Information given in confidence in connection with ACMA functions/powers:

 

Paragraph (a) of the definition of authorised disclosure information covers information that a person gives in confidence to the ACMA in connection with the performance of any of the ACMA’s functions or the exercise of any of its powers.  This is primarily intended to apply to information that is voluntarily given to the ACMA as part of its day to day operations. 

 

Examples of the type of information that might be given in confidence to ACMA in these circumstances include research or reports with relevance to ACMA’s functions, or information provided by companies developing new communications technology (for example for the purpose of assessing conformance with Australian licensing standards).

 

(b) Information obtained through exercise of specified statutory powers:

 

Paragraph (b) of the definition of authorised disclosure information applies to information obtained by the ACMA as a result of the exercise of any of its powers under specified parts of the BSA, Radiocommunications, Telecommunications and TCPSS Acts, retrospectively.  The parts of those Acts specified in paragraph (b) are those that confer power(s) on the ACMA which could result in the ACMA obtaining information.

 

Powers under BSA

The parts of the BSA that are specified in paragraph (b) of the definition of authorised disclosure information are Parts 2, 5, 7, and 13.  Therefore, information obtained by the ACMA as a result of the exercise of a power under one of those parts will be authorised disclosure information, which would enable an ACMA official to disclose the information in accordance with proposed new Part 7A of the ACMA Act.

 

Part 2 of the BSA provides for the categorisation of broadcasting services.  Section 21(3), within Part 2, confers power on the ACMA to give a party that has applied to the ACMA under s. 21(1) (ie for an opinion regarding which category a broadcasting service falls into) a written notice requesting the applicant to provide additional information to the ACMA.

 

Part 5 of the BSA regulates control of commercial broadcasting licences and datacasting transmitter licences.  The part includes limitations on control of licences and directorships of licensee companies, regulation of newspapers associated with commercial radio or television licence areas, protection of media diversity, disclosure of cross media relationships, and requirements for licensees to make certain notifications to ACMA.  

 

Part 5 of the Act contains numerous provisions pursuant to which the ACMA, in exercising its functions, may issue a written notice to a party requesting that the party provide ACMA with information.  In many cases this is a request for additional information in response to an application that the party has made to the ACMA. 

 

By way of example, ACMA has the power to issue such a written notice to a person who has applied to the ACMA for prior approval of a transaction that would result in an unacceptable media diversity situation (see s. 61AJ(3)) and to a person who has applied to the ACMA for an extension of time for compliance with a prior approval notice (see s. 61AK(3).  Other examples include powers arising under the following provisions: ss. 61 AMC(3), 61AMD(3), 61AP(3), 61AZD(4), 61AZE(9), 61AZF(8), 67(3), 68(3), 71(4) and 74(3).

 

Part 7 of the BSA regulates subscription television broadcasting services, including the allocation of subscription television broadcasting licences, conditions applicable to those licences and the maintenance of minimum levels of eligible drama expenditure. An example of ACMA’s powers under Part 7 that might result in ACMA obtaining information is the power to make inquiries in order to determine whether an annual return given to it contains correct information (see s. 103ZC).  

 

Part 13 of the BSA provides for information gathering by the ACMA.  This includes providing for the ACMA to conduct investigations and to hold hearings. Examples of ACMA’s powers under Part 13 that might result in ACMA obtaining information include the power to:

·          consult with such persons, bodies and groups as it thinks fit and conduct investigations and hold hearings (see s. 168);

·          for the purposes of an investigation, give a written notice summoning a person to provide documents or information to the ACMA or to attend before a delegate to produce documents or answer questions (see s. 173);

·          examine a person on oath or affirmation and to require the person to answer certain questions (see s. 174);

·          require a person to make certain relevant documents in their possession available for inspection by a member of the ACMA staff (see s. 177); and

·          for the purposes of a hearing, summon a person to give evidence or produce documents (see s. 195). 

 

Powers under Radiocommunications Act

The parts of the Radiocommunications Act that are specified in paragraph (b) of the definition of “authorised disclosure information” are Chapters 3, 5 and 6.  Information obtained by the ACMA as a result of the exercise of a power under one of those chapters will be authorised disclosure information subject to the disclosure regime in proposed new Part 7A of the ACMA Act.

 

Chapter 3 of the Radiocommunications Act provides for the 3 systems of licences that apply to radiocommunications and for the registration of licences.  It also prohibits unlicensed radiocommunications except in certain circumstances.  An example of ACMA’s powers under Chapter 3 that might result in ACMA obtaining information is the power to determine in writing procedures to be applied in allocating spectrum licences (see s. 60).

 

Chapter 5 of the Radiocommunications Act provides for various matters dealing with the administration and enforcement of the Act (for example for ACMA to hold public enquiries, make advisory guidelines and determine charges, for appointment of inspectors and for people to give the ACMA enforceable undertakings).  An example of ACMA’s powers under Chapter 5 that might result in ACMA obtaining information is its power to accept a range of enforceable undertakings, including undertakings as to what a person will do, or will refrain from doing, in order to comply with the Act (see s. 298C).

 

Chapter 6 of the Radiocommunications Act is a collection of miscellaneous provisions. Section 303, within Chapter 6, provides that the ACMA may conduct research into a range of matters related to radiocommunications.  Information obtained by the ACMA as a result of the exercise of its power to conduct research would be authorised disclosure information.

 

Powers under Telecommunications Act

The parts of the Telecommunications Act that are specified in paragraph (b) of the definition of “authorised disclosure information” are Parts 3, 6, 21, 26, 27, as well as Schedule 3A.  Information obtained by the ACMA as a result of the exercise of a power under one of those Parts will be authorised disclosure information subject to the disclosure regime in proposed new Part 7A of the ACMA Act.

 

Part 3 of the Telecommunications Act provides for the regulation of carriers.  It provides inter alia for carrier licences to be granted by the ACMA, for those licences to be subject to conditions and that the owner of a network unit used to supply carriage services to the public must hold a carrier licence except in certain circumstances.  An example of ACMA’s powers under Part 3 that might result in ACMA obtaining information is its power to request that an applicant for a carrier licence give the ACMA further information about the application (see s. 55).  Such information might relate to the applicant’s eligibility under the Act (eg legal status, ABN, foreign ownership and control details, relationship to subsidiaries etc) or technical information about the network unit they control.

 

Part 6 of the Telecommunications Act provides a system for the development and registration of industry codes and industry standards.  Examples of ACMA’s powers under Part 6 that might result in ACMA obtaining information include its power

to request that an industry body or association give it a copy of an industry code (see s. 118(1)) and the power to request further information from an applicant applying for a declaration as to reimbursement of costs incurred in developing an industry code (see s. 136A(3)).

 

Part 21 of the Telecommunications Act deals with technical regulation, including by enabling ACMA to make technical standards about equipment and interconnection.  An example of ACMA’s powers under Part 21 that might result in ACMA obtaining information is its power to request further information from a person applying for a connection permit (see s. 393(1)).

 

Part 26 of the Telecommunications Act provides for the ACMA to investigate certain matters relating to telecommunications.  Examples of ACMA’s powers under Part 26 that might result in ACMA obtaining information is include the power:

·          to conduct certain investigations (see s. 510(1)); and

·          for the purposes of an investigation, obtain information from such persons, and make such inquiries, as it sees fit (see s. 512(3)).

 

Part 27 of the Telecommunications Act provides for the ACMA to obtain certain information from carriers, service providers and others.  Examples of particular powers under which the ACMA may obtain information include sections 521, pursuant to which the ACMA may require carriers and service providers to provide certain information and documents, and 522, pursuant to which the ACMA may require others to provide such information and documents.

 

Powers under TCPSS Act

The specified part of the TCPSS Act for the purpose of paragraph (b) of the definition of “authorised disclosure information” is Part 2.  Information obtained by the ACMA as a result of the exercise of a power under Part 2 will be authorised disclosure information subject to the disclosure regime in proposed new Part 7A of the ACMA Act.

 

Part 2 of the TCPSS Act sets out the universal service regime.  An example of the type of information that might be obtained by the ACMA as a result of the exercise of a power under Part 2 is the power to inquire into the correctness of an eligible revenue return (see s. 20E).

 

(c) Information obtained through exercise of statutory powers (other than described in paragraph (b)):

 

Paragraph (c) of the definition of “authorised disclosure information” covers information obtained by the ACMA as a result of the exercise of powers under a provision of an Act or legislative instrument that allows the ACMA, or an ACMA official, to require a person to give information or to produce a document (and is not covered by the various parts of legislation specified in paragraph (b), discussed above). 

 

This element of the definition is intended to cover future legislative amendments or legislative instruments that might confer power on the ACMA to require a person to provide information or documents.  It is intended that information obtained by ACMA through the exercise of such a power should fall within the third category of “authorised disclosure information” so that it is not necessary to amend the ACMA Act to update the list of legislation in paragraph (b) each time this occurs. 

 

(d) Information given in confidence by Government authority of foreign country

 

Paragraph (d) of the definition of “authorised disclosure information” covers information that was given in confidence to the ACMA by a Government authority of a foreign country .  

 

The type of information that might be given to ACMA by a Government authority of a foreign country would include information relevant to international co-operation on regulatory and law enforcement, such as information on internet content or spam.

 

Item 3 - After Part 7

 

Item 3 of Part 1 of Schedule 1 to the Bill would insert a new Part 7A (‘Disclosure of Information’) into the ACMA Act.  The new Part 7A would provide for the disclosure to particular parties, by ACMA officials, of authorised disclosure information. 

 

It is important to note that, to the extent that information to be disclosed under proposed new Part 7A includes “personal information” as defined in section 6 of the Privacy Act 1988 , the provisions of that Act will apply.  In particular, it is not intended that the disclosure provisions included in proposed new Part 7A should override the Information Privacy Principles contained in section 14 of the Privacy Act 1988 .

 

Clause 59A - Disclosure to Ministers  

 

Subclause 59A(1) of proposed new Part 7A provides that an ACMA official may disclose authorised disclosure information to the Minister.  The reference to ‘the Minister’ means to the portfolio Minister administering clause 59A of the ACMA Act (see Acts Interpretation Act 1901 s. 19A).  The ACMA Act is currently administered by the Minister for Communications, Information Technology and the Arts.

 

Subclause 59A(2) provides that an ACMA official may disclose authorised disclosure information to a Minister where that information relates to a matter arising under a provision of an Act that is administered by that Minister.  The reference to ‘a Minister’ means any Minister who relevantly administers the legislation concerned.

 

Subclause 59A(2) does not limit subclause (1). 

 

Clause 59B - Disclosure to public servants for advising their Ministers

 

Clause 59B is structured similarly to clause 59A, except that rather than providing for disclosure of authorised disclosure information to Ministers, it provides for disclosure of such information to certain public servants for the purposes of advising their Minister(s). 

 

The public servants to whom clause 59B authorises disclosure are:

·          for the purposes of advising the Minister for Communications, Information Technology and the Arts, the Secretary of the Department of Communications, Information Technology and the Arts, and any APS employee in that Department authorised in writing by the Secretary; and

·          for the purposes of advising a Minister administering a particular provision of an Act, the Secretary of the Department that is administered by that Minister, and any APS employee of that Department authorised in writing by the Secretary.

 

As with clause 59A, subclause (2) does not limit subclause (1).

 

Clause 59C - Disclosure to Royal Commissions

 

Subclause 59C(1) of proposed new Part 7A provides that an ACMA official may disclose authorised disclosure information to a Royal Commission.  Subclause (2) provides for the ACMA Chair to impose written condition in relation to information disclosed under subclause (1).  It is intended that information would be disclosed by ACMA to a Royal Commission when the information is relevant to the Commission’s terms of reference.

 

Subclause 59C(3) provides that an instrument made under subclause (2) that imposes conditions relating to one particular disclosure identified in the instrument is not a legislative instrument.  Subclause 59C(4) provides that, otherwise, an instrument made under subclause (2) is a legislative instrument.  Subclause 59C(3) and (4) are declaratory of the law and are included to assist readers.

 

Clause 59D - Disclosure to certain authorities

 

Clause 59D of proposed new Part 7A provides for the disclosure of authorised disclosure information by an ACMA official, authorised in writing by the ACMA Chair, to a number of specified authorities.  The information may only be disclosed if the ACMA Chair is satisfied that the information will enable or assist the authority that is to receive the information to perform or exercise any of its functions or powers.  This is an important safeguard which is intended to ensure that information will only be disclosed to authorities that have a genuine interest in receiving it.

 

The Chair may impose written conditions to be complied with in relation to the disclosure (subclause 59D(2)).  An example of such a condition might be that the information must not be further disclosed by the authority that receives it.  Subclause 59D(3) provides that a written instrument under subclause 59D(2) that imposes conditions relating to one particular disclosure identified in the instrument is not a legislative instrument.  Subclause 59D(4) provides that, otherwise, an instrument made under subclause (2) is a legislative instrument.  Subclause 59D(3) and (4) are declaratory of the law and are included to assist readers.

 

The authorities specified in clause 59D can be very loosely grouped into the categories of regulators, public servants and law enforcement agencies.  The range of authorities, and examples of circumstances in which it might be desirable for ACMA to disclose authorised disclosure information, are discussed below.

 

Regulators

The group of authorities with a predominantly regulatory function comprise:

 

·          Australian Competition and Consumer Commission (ACCC).  The ACMA works very closely with the ACCC in relation to cross media ownership regulation and certain information received by ACMA may have significant relevance to the work of the ACCC.  For example, information regarding the corporate structures and business operations of parties involved in cross media transactions might also be relevant to the ACCC’s role in assessing and approving proposed mergers.

 

·          Australian Prudential Regulation Authority (APRA).  See below.

 

·          Australian Securities and Investments Commission (ASIC). As private equity funds increase their involvement in the media market, and as ownership structures become more complex in the wake of the Government’s recent media reforms, ACMA is increasingly likely to obtain information of relevance to both ASIC and APRA.

 

·          Commissioner of Taxation.  ACMA is a significant collector of Government revenue as a result of its role collecting licence fees for a range of broadcasting, telecommunications and radiocommunications licences.

 

·          Telecommunications Industry Ombudsman (TIO).  ACMA works closely and cooperatively with partners in the self-regulatory framework for telecommunications services, including the TIO.  For example, ACMA and the TIO take a collaborative approach to systemic complaints regarding the provision of telecommunications services.

 

·          Australian Bureau of Statistics (ABS). ACMA works with the ABS to develop census questions.

 

·          Regional Telecommunications Independent Review Committee (RTIRC).  The RTIRC, established by section 158R of the Telecommunications Act, is responsible for conducting periodic reviews of the adequacy of telecommunications services in regional, rural and remote parts of Australia.  The first review is required before 2008.  It is envisaged that much of the research support work for the RTIRC will be undertaken by ACMA (see s 158ZD of the T(CPSS)A).

 

·          An authority of a foreign country responsible for regulating matters relating to communications or media.  The type of information that might be given to ACMA by a Government authority of a foreign country would be information relating to international enforcement and co-operation issues, such as information on internet content or spam.

 

Law enforcement agencies

The group of authorities with a predominantly law enforcement role comprise:

 

·          Australian Federal Police (AFP).  Pursuant to Schedule 5 of the Broadcasting Services Act, ACMA works closely with law enforcement agencies in relation to offensive and prohibited Internet content.  As a specific example, any information ACMA receives in relation to criminal activity on the Internet, such as information relating to child-pornography, will be of direct interest to the AFP.  Certainty regarding information-sharing arrangements would support the effective operation of complementary administrative and enforcement measures available to the AFP and ACMA.

 

·          Australian Security Intelligence Organisation (ASIO).  ACMA and ASIO work together on law enforcement issues, for example on issues relating to telephone interception.

 

·          Director of Public Prosecutions (DPP).  ACMA is required to work closely with the DPP in relation to prosecution of civil or criminal offences arising from breaches of the broadcasting and telecommunications regulatory framework.  For example, ACMA may undertake an investigation into suspected breaches of the broadcasting regulatory framework and the findings of such an investigation, including any evidence gathered, would be likely to inform any subsequent prosecution. 

 

·          A State or Territory authority responsible for law enforcement.  It is desirable that ACMA be able to share information with State or Territory police, fair trading departments and child protection agencies.  A situation where this might be necessary would be in relation to prohibited Internet content and illegal online activity.

 

Public Servants

The public servants specified are those whose duties relate to Commonwealth Acts that have particular relevance to the functions of ACMA.  The Acts are the:

 

·          Foreign Acquisitions and Takeovers Act 1975 .  ACMA has a role in approving cross-media transactions and it is possible that such transactions may involve foreign investment.  All direct (that is, non-portfolio) foreign investment and all portfolio foreign investment over five per cent in the media sector is required to be notified to, and approved by, the Treasurer.  Hence, it is likely that ACMA will be in possession of information relating to the proposed investment of relevance to decisions made by the Treasurer.

 

·          Classification (Publications, Films and Computer Games) Act 1995 .  The regulatory framework for assessment of broadcasting content operates with reference to this Act.  ACMA’s complaints handling and investigations functions require them to consider whether certain broadcasting content has been assessed correctly and ACMA’s role under Schedule 5 to the Broadcasting Services Act in relation to illegal or offensive Internet content are carried out with reference to the national classification scheme.

 

·          Telecommunications (Interception and Access) Act 1979 .  

 

An ACMA official authorised in writing by the ACMA Chair will be able to disclose authorised disclosure information to the Secretary of a Department administered by a Minister who is also responsible for administering one or more of the above three Acts.  For example, the Foreign Acquisitions and Takeovers Act 1975 is administered by the Treasurer and so an ACMA official could disclose the information to the Secretary of the Treasury.

 

In addition, the information may also be disclosed to certain other APS employees within those Departments.  In relation to the Department of the Minister administering the first Act, disclosure could be made to an APS employee within that Department whose duties relate to that Act.  The same is true for APS employees within the Department of the Minister administering the second Act. 

 

In the case of the Department of the Minister administering the third Act (the Telecommunications (Interception and Access) Act 1979 ) disclosure could be made to an APS employee in that Department whose duties relate to Telecommunication or law enforcement (ie to a broader category of employees than just employees with duties relating to the Act).  

 

Clause 59E - Disclosure with consent

 

Clause 59E provides that an ACMA official may disclose authorised disclosure information that relates to the affairs of a person if the person has consented to the disclosure and the disclosure is in accordance with the consent.

 

Clause 59F - Disclosure of publicly available information

 

Clause 59F provides that an ACMA official may disclose authorised disclosure information if that information is already publicly available.

 

Clause 59G - Disclosure of summaries and statistics

 

Clause 59G provides that an ACMA official may disclose summaries of, or statistics derived from, authorised disclosure information, where those summaries or statistics are not likely to enable the identification of a person.

 

Clause 59H - Disclosure authorised by regulations

 

Clause 59H provides for the regulations to authorise an ACMA official to disclose authorised disclosure information in specified circumstances, and to provide that the Chair may, in writing, impose conditions to be complied with in relation to disclosure in those circumstances. 

 

Subclause (2) provides that a written instrument of this type that imposes conditions relating to one particular disclosure identified in the instrument is not a legislative instrument.  Subclause (3) provides that, otherwise, a written instrument made under regulations made for the purposes of paragraph 59H(1)(b) is a legislative instrument.  Subclauses 59H(2) and (3) are declaratory of the law and are included to assist readers.

 

Clause 59J - This Part does not limit disclosure by an ACMA official

 

Clause 59J makes clear that proposed new Part 7A of the ACMA Act is not intended to limit the circumstances in which an ACMA official is authorised to disclose information.

 

Clause 59K - Relationship with Part 13 of the Telecommunications Act 1997

 

Clause 59K provides that proposed new Part 7A of the ACMA Act does not authorise a disclosure of information that is prohibited by Part 13 of the Telecommunications Act.

 

Subsection 299(1) of the Telecommunications Act, in Part 13, prohibits a member of the staff of the ACMA who has received information or a document as described in that subsection (see below) from disclosing or using the information or document except for the purpose of, or in connection with, the carrying out of the ACMA’s functions and powers.

 

Information or documents described in subsection 299(1) are those disclosed to a member of staff of the ACMA as permitted by subsection 284(1), which deals with the disclosure or use of information or documents to assist the ACMA.

 

Clause 59L - Delegation of Chair’s powers under this Part

 

Clause 59K provides for the ACMA Chair to delegate, to a member, any of the Chair’s functions and powers under new Part 7A or under regulations made for the purpose of section 59H.  The clause makes clear that in performing or exercising a delegated function or power, the delegate must comply with any written directions of the Chair.

 

Item 4 - Application of Part 7A

 

Item 4 provides that proposed new Part 7A of the ACMA Act will apply to disclosure of information on or after commencement of the Part regardless of whether the information was obtained by ACMA before or after that commencement.

 

Division 2 - Amendment with contingent commencement

 

Item 5 - Section 3 (after subparagraph (b)(ii) of the definition of authorised disclosure information )

 

Item 5 would make a consequential amendment to the definition of “authorised disclosure information”, which is proposed to be inserted by item 2 to the Bill.  The commencement of item 5 is contingent upon the commencement of item 77 of Schedule 1 to the Content Services Act.  

 

Item 77 of the Content Services Bill, which at the time of writing is before Parliament, would insert a new Schedule 7 into the BSA.  Proposed Schedule 7 would provide, inter alia, for people to make to complaints to the ACMA about prohibited content or potential prohibited content in relation to certain services, and for ACMA to take action to deal with such content.

 

If Schedule 7 to the BSA commences, item 5 of the Bill would amend paragraph (b) of the definition of “authorised disclosure information” with the effect that the definition would include information obtained by the ACMA as a result of the exercise of any powers conferred on it by Schedule 7 to the BSA.    

 

Part 2 - Datacasting

 

Division 1 - Varying conditions of datacasting transmitter licences

 

Division 1 of Part 2 to the Bill would amend the Radiocommunications Act to provide ACMA with greater flexibility in carrying out its spectrum management functions.  Section 9 of the ACMA Act sets out ACMA’s spectrum management functions, which include managing the radiofrequency spectrum in accordance with the Radiocommunications Act. 

 

Specifically, the proposed amendments would enable ACMA to vary the spectrum specified in a datacasting transmitter licence, including a channel A or channel B datacasting transmitter licence after such a licence has been issued.  A datacasting transmitter licence is a particular type of apparatus licence which authorises the licensee, and in some circumstances other people authorised by the licensee, to operate specified communications transmitters.  Channel A and channel B datacasting transmitter licences are particular types of datacasting transmitter licence.

 

The Broadcasting Legislation Amendment (Digital Television) Act 2006 ( Digital Television Act ) amended the Radiocommunications Act to provide for the allocation of two unallocated channels of television broadcasting spectrum known as ‘Channel A’ and ‘Channel B’.  The Digital Television Act also provided for the specification by ACMA of two corresponding types of datacasting transmitter licences, channel A and channel B datacasting transmitter licences (see sections 98A and 98B of the Radiocommunications Act). 

 

Item 6 - Paragraph 111(1)(d)

Item 7 - At the end of paragraph 111(1)(d)

 

Items 6 and 7 would amend the same paragraph of the Radiocommunications Act and so are considered together.

 

Item 6 would amend paragraph 111(1)(d) of the Radiocommunications Act to omit the phrase “or a datacasting transmitter licence”, and item 7 would amend the paragraph to insert, at the end, the phrase “or 109A(1)(d)”.

 

Section 111 of the Radiocommunications Act currently provides for ACMA, by notice in writing, to make certain changes to licence conditions applicable to apparatus licences (including to a datacasting transmitter licence).  Under section 111, the ACMA may:

·          impose one or more further conditions to which the licence is subject;

·          revoke or vary such a further condition imposed;

·          revoke or vary any condition specified under paragraphs 107(1)(g), 108A(1)(f), 109(1)(f) or 109A(1)(k), which provide that a range of different licences (including a datacasting transmitter licence - 109A(1)(k)) are subject to conditions which include “such other conditions as are specified in the licence”; and

·          if the licence is a transmitter licence, with the exception of certain specified licences including datacasting transmitter licences, vary a condition of the kind referred to in paragraph 108(2)(a)(b) or (c) (see paragraph 111(1)(d)).

 

Section 109A of the Radiocommunications Act sets out a range of conditions applicable to datacasting transmitter licences, including that the licensee “must not operate, or permit operation of, the transmitter except on a frequency or frequencies, or on a frequency channel, and at a constancy, specified in the licence” (109A(1)(d)).  ACMA’s powers under s. 111 to make changes to certain licence conditions do not extend to allow ACMA to revoke or vary a licence condition specified under s. 109A(1)(d).  Therefore, while ACMA can issue a datacasting transmitter licence that specifies the frequency or frequency channel in relation to which that licence may be used, it cannot at a later stage vary or revoke such a licence condition.

 

The effect of items 6 and 7 of Part 2 of Schedule 1 to the Bill would be to enable ACMA to vary spectrum frequencies specified in a datacasting transmitter licence.  The items would achieve this by:

·          removing the reference in paragraph 111(1)(d) to a datacasting transmitter licence (with the effect that such licences would no longer be excluded from the scope of ACMA’s power to vary licence conditions under that paragraph); and

·          inserting a reference to 109A(1)(d) into the list of kinds of licence conditions that may be varied by ACMA under paragraph 111(1)(d). 

 

The power to vary frequencies on which licences operate is already available to the ACMA in relation to other transmitter licences aside from datacasting transmitter licences.  It is intended that the proposed amendments would create a consistent approach and enable ACMA to more effectively address technical considerations.  For example, it is intended to assist ACMA to avoid possible interference with other services and to facilitate the potential provision of mobile television services.

 

Division 2 - Datacasting charge

 

Item 8 - Paragraph 6(1)(a)

 

Item 8 would amend paragraph 6(a) of the Datacasting Charge Act to insert the phrase “other than one that is a channel B datacasting transmitter licence for the purposes of the Radiocommunications Act 1992 ,”.

 

Section 6 of the Datacasting Charge Act provides for a charge to be imposed in relation to provision of datacasting services under a transmitter licence held by the holder of a commercial television broadcasting licence. 

 

A channel B datacasting licensee that holds a commercial television broadcasting licence would be liable to pay the charge where it provided a service under the authority of a BSA datacasting licence (ie under a datacasting licence under Schedule 6 to the BSA).  The Government has decided that channel B datacasting licences should not be subject to an annual licence fee.  Accordingly, the effect of the amendment made by item 8 is that the charge would continue to apply where a commercial television broadcasting licensee provided datacasting services under the authority of a datacasting licence using the licensee’s digital television broadcasting spectrum, but not where the licensee provided such services on a channel B datacasting transmitter licence.

 

Item 9 - Application of amendment

 

Item 9 provides that the amendment to the Datacasting Charge Act made by Division 2 of Part 2 to Schedule 2 to the Bill applies to the financial year starting on 1 July 2007 and later financial years.

 

So far as this application provision might involve retrospectivity, such retrospectivity would be for the benefit of the affected taxpayer.