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National Transmission Network Sale Bill 1997

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1997

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

NATIONAL TRANSMISSION NETWORK SALE BILL 1997

 

NATIONAL TRANSMISSION NETWORK SALE (CONSEQUENTIAL AMENDMENTS) BILL 1997

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Communications, the Information Economy and the Arts, Senator the Hon Richard Alston)

 

 

89816 Cat. No. 97 1409 X ISBN 0644 511281



NATIONAL TRANSMISSION NETWORK SALE BILL 1997

 

NATIONAL TRANSMISSION NETWORK SALE (CONSEQUENTIAL AMENDMENTS) BILL 1997

 

 

OUTLINE

 

The principal purposes of the National Transmission Network Sale Bill 1997 are to facilitate the sale of the national transmission network and to set in place a regulatory framework for the provision of national broadcasting and other transmission services after the sale.

 

Part 2 of the Bill will facilitate the process of selling the national transmission network, which will proceed by way of the sale of shares in one or more Commonwealth-owned companies (referred to in the Bill as a National Transmission Company or NTC).  The Part includes provisions for the transfer of Commonwealth assets to the company or companies and exemption of those transfers from State or Territory taxes.  In addition, in order to ensure that assets can properly be dealt with in connection with the sale, provision will also be made to ensure Commonwealth ownership of facilities where those facilities might otherwise be fixtures on non-Commonwealth land and to remedy any omissions in relation to compliance by the Commonwealth with the Lands Acquisition Act 1989 or previous Lands Acquisition Acts.

 

The Bill will impose certain obligations upon, and give certain benefits to, the company or companies to whom the national transmission network assets are transferred.  These obligations are imposed, and benefits given, to reflect the public interest in the continued provision of core transmission services for the purposes of providing national broadcasting services and certain other kinds of broadcasting services.

 

It is proposed to provide for continuity of transmission services for the Australian Broadcasting Corporation (ABC), the Special Broadcasting Service (SBS) and Radio for the Print Handicapped services (RPH) and access to sites and facilities for those parties, emergency service organisations, remote commercial licensees and self-help groups by a combination of contractual obligations reinforced by statutory protections.

 

The contracts between the ABC/SBS/RPH and an NTC will set out the core performance obligations for continued supply of transmission services until such time as those bodies cease to require those services.  It is intended that the contracts will be for 5 years, with an option for the ABC/SBS/RPH to renew for 2 further terms of 5 years on terms and conditions to be negotiated.  The contracts will be enforceable through contractual remedies.

 

Part 4 of the Bill prevents the transfer of an asset originally used by the National Transmission Agency (NTA) or the replacement for such an asset unless approved by the Minister.  This will enable the Minister to ensure that the proposed transferee has entered into satisfactory contracts with the ABC/SBS/RPH in relation to the core performance obligations and test the likely commercial or financial ability of the proposed transferee to continue to meet the obligations.

The Minister will have the power to declare a person to whom national transmission network assets are transferred to be a declared successor (clause 22).  This provides a mechanism to give the owner of an NTC the flexibility to restructure its commercial arrangements or sell assets to a third party while ensuring that the obligations and benefits of the post-sale rules continue to apply to the new owner.

 

Part 3 of the Bill applies an access regime, based on Part XIC of the Trade Practices Act 1974 , to:

·        transmission services supplied by an NTC or declared successor; and

·        the provision of access to sites and towers by an NTC or declared successor;

in favour of certain nominated customers (including the ABC, the SBS and RPH).

 

The access regime will impose an obligation to supply nominated services to nominated customers either on terms as agreed or arbitrated.  The access regime could result in the Australian Competition and Consumer Commission (ACCC) arbitrating on the terms and conditions of renewal of the 5 year ABC/SBS/RPH contracts (in addition to arbitrating on access arrangements for any other nominated customers) if the parties cannot reach agreement.

 

Part 6 of the Bill will authorise an NTC or declared successor to carry out the maintenance of existing facilities on the same basis as telecommunications carriers, by applying the powers and immunities contained in Schedule 3 to the Telecommunications Act 1997 which relate to the maintenance of facilities.  However, an NTC or declared successor will not be given a carrier’s powers to inspect land or to carry out the installation of new facilities contained in Divisions 2 and 3 of Schedule 3.

 

Part 5 of the Bill provides for the transfer to the national broadcasters of certain radiocommunications licences to operate transmitters for the purpose of providing national broadcasting services.  The licences are currently held by the Commonwealth.

 

The National Transmission Network Sale (Consequential Amendments) Bill would make consequential amendments to the Australian Broadcasting Corporation Act 1983 and the Special Broadcasting Service Act 1991 relating to the powers of the national broadcasters in relation to the provision of transmission services, annual reporting requirements and a mechanism for dealing with complaints about the degradation of signal quality.  The Consequential Amendments Bill would also make minor amendments to the licensing provisions of the Radiocommunications Act 1992 .

 

 

FINANCIAL IMPACT STATEMENT

 

The main financial impact from the sale of the national transmission network will be the offset to outlays occurring when the sale receipts are credited to the Commonwealth Public Account.  The target date for settlement of the sale is 30 June 1998, with the return to the Budget being in the 1997/98 financial year. 

Following the sale of the network, the Government will provide funding to the ABC and the SBS to enable them to meet their contractual obligations to purchase transmission services from the NTCs.  In this context, there will be no increase in existing recurrent budget outlays associated with the ongoing transmission of national broadcasting services.  The Government's commitment to the social policy programmes of RPH and remote area broadcasters will continue, with funding to be met from within an agreed outlay cap.

 

The other amendments in this Bill and the Consequential Amendments Bill are expected to have no significant impact on Commonwealth expenditure or revenue.

 

 

REGULATION IMPACT STATEMENT

 

Issues

 

Following the sale of the national transmission network, there will be a need to maintain current ABC and SBS coverage and service levels and the availability of transmission services and/or facilities to meet existing community service obligations, which include facilities for RPH licensees, community broadcasters, self-help retransmission groups, emergency services and remote commercial satellite broadcasting licensees in regional and rural areas (CSO users).

 

At the vast majority of sites within the national transmission network, particularly in regional and remote areas, there is no competitive market for the provision of transmission services.  This means that there are no readily available alternatives for the provision of national broadcasting services or transmission services and/or facilities for CSO users.  There are also likely to be significant barriers to the development of greater competition in the market in the medium term, particularly for existing analogue terrestrial transmission services, given the capital investment that would be required to duplicate existing facilities, the limited client base and natural barriers such as environmental considerations.

 

The current monopoly character of the national transmission network means that a future owner may be in a position to exclude national broadcasters or CSO users from its facilities or extract monopoly rents.

 

Objective

 

The objective is to ensure the continued availability of transmission services and facilities to national broadcasters and CSO users on fair and reasonable terms and conditions.  This objective is consistent with the Government's decision that, in selling the national transmission network, existing service commitments to regional and rural Australia will continue and existing social policy obligations will be maintained.

 

Options

 

(a)        No regulation               To rely on contracts between the transmission provider and the purchaser of the transmission services or facilities to set in place service obligations and charging levels and on contracts between the transmission provider and land owners in relation to the operation of facilities on land not owned by the transmission provider.  Such contracts might be supplemented by existing legislative mechanisms such as Part IIIA of the Trade Practices Act.

 

(b)        A prescriptive legislative scheme                     To establish a prescriptive legislative scheme which sets out the rights of, and imposes specific obligations on, the transmission provider and sets out a framework for the direct enforcement of those rights and obligations, with little scope for commercial decision making.

 

(c)        Minimal regulation to achieve social objectives                     To establish a scheme which relies primarily on contractual agreement but which is backed by safety net legislation that provides for statutory dispute resolution and limited powers and immunities in respect of maintenance of transmission facilities.

 

Assessment of impacts

 

Option (a) would primarily benefit the purchaser (or purchasers) of the national transmission network as it would not be subject to any obligation that had not been negotiated on a purely commercial basis, although the lack of legislative support in respect of its facilities would be to the purchaser's disadvantage as it may need to make significant concessions to land owners to ensure proper maintenance of the transmission sites.  Reliance on Part IIIA of the Trade Practices Act would provide insufficient certainty that the objective would be met because the procedural steps involved in declaration under that Part would be time consuming, not provide a guaranteed outcome and the associated costs of any legal challenges may be prohibitive for CSO users.  Importantly, this option would not alleviate any potential threat to the continuation of national broadcasting services.

 

Option (b) would provide greater certainty that the objective would be met but would greatly diminish the purchaser/provider relationship between the transmission provider and the national broadcasters and CSO users.  It would also have a significant detrimental effect on the value of the network, by placing undue constraints on the transmission provider in the operation of its business, and would hinder the potential for development of a competitive market.  Administration of a prescriptive regulatory regime would also involve significant administrative costs for government.

 

Option (c) would limit competition only to the extent of the transmission provider's compliance with the limited obligations imposed.  This would be offset by the advantages to the transmission provider of statutory powers and immunities in respect of its facilities.  The costs to government would be minimal, as direct government involvement would be necessary only in the context of arbitration of disputes.  The objective would be met in that legislative safeguards would operate in critical areas, affording protection to the national broadcasters and CSO users, but at the same time no unnecessary constraints would be placed on the operation of the transmission provider's business.  This option would minimise the burden of administrative compliance on small business (the CSO users). 

 

The legislation implements option (c) as it meets the objective and at the same time strikes an appropriate balance between the commercial interests of the transmission provider and the national interest in the continued provision of national broadcasting services and the meeting of community service obligations.

 

Consultation

 

Relevant government agencies, including the Treasury and the ACCC, and the ABC and the SBS have been consulted and support the proposed approach.  The proposal to sell the national transmission network is a long standing Government commitment.  Public consultation on the proposed package has not taken place.

 

Implementation and review

 

Once the sale process is completed, the implementation of the preferred option will have minimal administrative impact.

 

The arrangements will be reviewed regularly as part of the triennial funding reviews of the ABC and the SBS.



NOTES ON CLAUSES

 

NATIONAL TRANSMISSION NETWORK SALE BILL 1997

 

Part 1 - Preliminary

 

Clause 1 - Short title

 

Clause 1 provides for the citation of the National Transmission Network Sale Act 1997 (the Act).

 

Clause 2 - Commencement

 

Clause 2 of the Bill provides for the Act to commence on Royal Assent.

 

Clause 3 - Definitions

 

This clause contains definitions of key terms used in the Bill.

 

The definition of “community broadcasting licensee” includes licensees who are allocated a community broadcasting licence under Part 6 of the Broadcasting Services Act 1992 (BSA) and licensees who are allocated a temporary community broadcasting licence under Part 6A of the BSA. 

 

The term “NBS transmitter licence” is defined to mean a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service within the meaning of the BSA. 

 

It is intended that the term mean only those transmitters which transmit the relevant signal to the public directly, including transmitters that transmit both to the public and to another transmitter or translator which then transmits directly to the public, whether the relevant transmitters are transmitting a signal in the broadcasting services bands or not.

 

Clause 4 - Crown to be bound

 

Clause 4(1) provides that the Act is to bind the Crown in right of the Commonwealth, the States, the Australian Capital Territory, the Northern Territory and Norfolk Island. 

 

Clause 4(2) provides that the Act does not make the Crown liable to be prosecuted for a criminal offence.

 

Clause 5 - External Territories

 

This clause extends the Act to all of Australia’s external territories.

 

Clause 6 - Extra-territorial operation

 

This clause extends the application of the Act internationally.

Part 2 - Sale of the National Transmission Network

 

Clause 7 - Fixtures on non-Commonwealth land

 

The clause provides that, where a network facility is specified by the Minister for Finance and Administration by notice in the Gazette , that facility is, at the end of the day on which the notice is published, severed from the land and remains severed and ownership of the facility vests in the Commonwealth.

 

It is possible that the law of fixtures may operate in relation to some national transmission network facilities which have been constructed on land not owned by the Commonwealth.  The purpose of this clause is to provide a mechanism to ensure Commonwealth ownership of facilities where those facilities might otherwise be fixtures on non-Commonwealth land.

 

Clause 8 - Effect of Lands Acquisition Act on past grants etc. of interests in land

 

This clause provides that grants or transfers of interests in land to or from the Commonwealth before the commencement of the Act will not be invalid solely because the grant or transfer was not made in accordance with the Lands Acquisition Act (as in force from time to time).  This clause operates to validate retrospectively such acquisitions or disposals for the purposes of the Lands Acquisition Act (as in force from time to time), where the relevant interests are transferred under clause 9.

 

Clause 9 - Transfer of assets and liabilities

 

This clause makes provision for Commonwealth assets and liabilities to be transferred, at the discretion of the Minister for Finance and Administration, to a company specified in the notice.  The purpose of the provision is to authorise the transfer of assets and liabilities, connected with the operation of the national transmission network, to one or more NTCs prior to or after the sale of shares in that NTC.

 

Clause 9(1) enables the Minister for Finance and Administration, by notice in the Gazette , to declare, in relation to a specified company, that a specified Commonwealth asset vests in the company at a specified time (the transfer time) without any conveyance, transfer or assignment and/or the company becomes the Commonwealth's successor in law in relation to that asset and/or a specified instrument relating to that asset continues to have effect after the transfer time, as if a reference to the company were substituted for a reference to the Commonwealth or the NTA.

 

Clause 9(2) enables the Minister for Finance and Administration, by notice in the Gazette, to declare, in relation to a specified company, that a specified Commonwealth liability ceases to be such a liability and becomes a liability of the company at the transfer time and/or the company becomes the Commonwealth's successor in law in relation to that liability and/or a specified instrument relating to that liability continues to have effect after the transfer time, as if a reference to the company were substituted for a reference to the Commonwealth or the NTA.

Clause 9(3) provides that declarations in relation to assets and liabilities may be included in the same notice, and that a notice may include declarations in relation to more than one asset or liability.  This clause will facilitate the transfer of contracts under this clause.

 

Clause 9(4) provides that a declaration will have effect according to its terms.

 

Clause 10 - Exemption from stamp duty and other taxes

 

This clause provides for the transfer of assets and liabilities to an NTC, and anything done in connection with such a transfer, to be exempt from stamp duty and other taxes under a law of a State or Territory, provided the transfer takes place while the Commonwealth owns all the shares in that company.

 

This clause is not intended to exempt from stamp duty or other taxes the transfer of shares in an NTC to a purchaser.

 

Clause 11 - Registration of transfers of land

 

This clause enables a land registration official (as defined in clause 3 of the Bill) to register certain assets transferred under clause 9.  It provides that, where the Minister for Finance and Administration has given a specified certificate relating to land, a land registration official may register the matter in the usual way and deal with and give effect to the certificate (clause 11(2)).  The certificate must be signed by that Minister or a person authorised by him (as provided for in clause 11(3)) and must identify the land in question and state that the right, title and interest in the land has become vested in the company (clause 11(1)).

 

Clause 11(3) establishes a rebuttable presumption that a certificate that appears to have been issued under clause 11 is such a certificate and was properly given.

 

Clause 12 - Part does not place person in breach of contract etc.

 

The object of this clause is to ensure that the transfers of assets and liabilities under clause 9 do not operate to place any person (including the Commonwealth) in breach of any contract or confidence, or otherwise make a person guilty of a civil wrong, or release any surety from any of the surety’s obligations in relation to a liability transferred under clause 9.  In addition, this clause operates so that a person will not be in breach of any contractual provision which prohibits, restricts or regulates the assignment or transfer of any asset, liability, right or obligation, or the disclosure of any information.  In the absence of this clause, a contract may, for example, operate to prohibit assignment of certain rights and obligations without the consent of one or both parties.

 

Part 3 - Access to services etc.

 

This Part applies an access regime, based on Part XIC of the Telecommunications Act, to:

·        transmission services supplied by an NTC or declared successor; and

·        the provision of access to sites and towers by an NTC or declared successor;

in favour of certain nominated customers.

 

Provision is made in clause 22 of the Bill for the Minister to declare a person who has acquired an NTA asset, or a replacement for that asset, to be a declared successor.  That provision gives the owner of NTA assets the flexibility to restructure its commercial arrangements in relation to those assets or sell the assets to a third party, while enabling the access regime to continue to apply to services supplied by means of the assets.

 

Clause 13 - Deemed application of telecommunications access regime

 

This clause provides for the application of the telecommunications access regime in relation to a nominated service in accordance with Part 3 of the Bill.

 

“Telecommunications access regime” is defined in clause 3 of the Bill to mean Part XIC of the Trade Practices Act, other relevant provisions of that Act and certain provisions of the Telecommunications Act which are relevant to the enforcement of Part XIC.

 

The telecommunications access regime requires, amongst other things, carriers to supply declared services to service providers on request.

 

Clause 13(2) makes the telecommunications access regime have effect as if:

·        each nominated service were a declared service;

·        each provider of a declared service were a carrier; and

·        each nominated customer were a service provider.

 

Clause 14 - Nominated services

 

This clause defines a nominated service for the purpose of the application of the access regime.

 

There are two kinds of services which the NTA currently provides to third parties for which special access arrangements are required.

 

The first are transmission services - the carriage of broadcasting services.

 

The second are land or facilities access services - the NTA giving access to a site it owns or controls for a third party to:

·        install a tower and transmission facilities (eg. antenna, cabling, transmitter hut and transmitter); or

·        install an antenna on an existing tower, cabling or a transmitter in an existing transmitter hut.

 

This clause makes the following services provided by an NTC or declared successor a nominated service:

·        carriage of broadcasting services using original assets or replacement assets;

·        the provision of access to a site or telecommunications transmission tower which is an original asset or replacement asset.

 

Nominated services are confined to services supplied using an asset transferred to an NTC under clause 9 of the Bill (original asset), or an asset which subsequently replaces that asset (replacement asset).

 

Replacement assets are defined in clause 3 of the Bill.  A special rule requires a replacement for an analogue broadcasting transmitter to also be an analogue broadcasting transmitter.  This rule is included to specifically exclude services supplied by digital terrestrial transmitters broadcasting to the public from the scope of the access regime.  The Part 3 access regime is not intended to apply to digital terrestrial broadcasting.  The introduction of digital terrestrial broadcasting involves broader policy issues affecting the supply of broadcasting services in general and issues relating to access to digital transmitters by nominated customers will be considered in that broader context.

 

The term “analogue broadcasting transmitter” is defined in clause 3 to mean a transmitter for transmitting a broadcasting service to the public by means of an analogue main carrier signal.  It is immaterial for the purpose of this definition that some digital signals may be carried with the main carrier signal for the purpose of carrying an ancillary communications service, such as a data service.  The reference to “to the public” is intended to confine the definition to transmitters which transmit the relevant signal to the public directly, including transmitters that transmit both to the public and to another transmitter or translator which then transmits directly to the public.

 

Clause 15 - Nominated customers

 

Clause 15(1) limits the application of the telecommunications access regime to cases where the access seeker is a nominated customer and is seeking access for a nominated purpose.

 

The following persons are specified as nominated customers for the purpose of carriage of broadcasting services:

·        the ABC and SBS for the purpose of carriage of national broadcasting services (clause 15(2)(a));

·        a community broadcasting licensee for the purpose of carriage of broadcasting services solely or principally to supply RPH (clause 15(3)(a)); and

·        self-help groups (ie, government bodies or local community bodies who raise money for the provision of transmission services that will reach their community) for the purpose of carriage of broadcasting services for retransmission under section 212 of the BSA (clauses 15(6)(a) and (7)(a)).

 

The following persons are specified as nominated customers for the purpose of access to sites and telecommunications transmission towers:

·        the ABC and SBS for purposes connected with national broadcasting services (clause 15(2)(b));

·        a community broadcasting licensee for purposes connected with a community broadcasting service (clause 15(3)(b));

·        an emergency service organisation for purposes connected with radiocommunication transmissions by the organisation (clause 15(4));

·        a commercial broadcasting licensee for purposes connected with providing a commercial broadcasting service in a declared remote area (clause 15(5)); and

·        self-help groups for purposes connected with retransmission under section 212 of the BSA (clauses 15(6)(b) and (7)(b)).

 

An emergency service organisation is defined in clause 3 to mean various kinds of listed organisations or any other organisation specified by the Minister in writing for the purposes of paragraph (b) of the definition.  Clause 29(b) makes an instrument for this purpose a disallowable instrument.

 

A “declared remote area” is defined in clause 3 to mean an area specified in writing by the Minister for the purposes of the definition.  Clause 29(a) makes an instrument made for this purpose a disallowable instrument.  It is expected that the instrument would specify particular remote zones referred to in licence area plans prepared by the Australian Broadcasting Authority (ABA) under section 26 of the BSA.

 

Provision is made for access to sites and telecommunications transmission towers to give nominated customers the right to install their own transmission facilities on those sites or towers.

 

Clause 15(8) makes it clear that a person or body can be a nominated customer under more than one of the subsections in clause 15.

 

Clause 16 - Miscellaneous modifications of telecommunications access regime

 

The telecommunications access regime was designed to apply to access to telecommunications services in circumstances where competitors would need to gain access to a provider’s services in order to supply competitive services.

 

Some modifications are required to the operation of that regime to reflect the different circumstances for access by broadcasters to the analogue transmission network operated by the NTCs.

 

The following provisions of the telecommunications access regime do not apply.

Subsections 152AB(2) to (8) set out criteria which limit what can be taken into account in interpreting the long-term interests of end-users.  Those criteria do not sit well in the context of access by broadcasters to the analogue transmission network (see in particular paragraphs 152AB(2)(c) and (d)).  Accordingly, it is proposed to remove these provisions to remove the limitations on what can be taken into account by the ACCC when determining whether something promotes the long-term interests of end-users.  In the context of broadcasting services, it is intended that ‘end-users’ would be taken to be the members of the public who view, or listen to, those broadcasting services.

Paragraphs 152AR(3)(b), (3)(c), (4)(b) and subsections (5) to (8) set out certain standard access obligations which an access provider must supply if requested by a service provider.  These specific obligations reflect circumstances applying generally in the telecommunications industry where access is sought to supply services competitively with the access provider, but which do not sit well in the context of the NTC services.  Accordingly, the provisions will not apply in this context.

Division 6 of Part XIC sets out powers to determine Ministerial pricing principles.  It is inappropriate to apply these provisions in the context of the sale of the national transmission network as they would give the vendor the power to subsequently change the prices that the purchaser can charge, even though the purchaser had purchased on the basis of 5 year contracts with the ABC and the SBS setting out the prices that can be charged.

Paragraph 152CQ(1)(b) places certain restrictions on the ACCC’s powers in an arbitration reflecting circumstances applying in the telecommunications industry where access is sought to supply services competitively with the access provider.  It is inappropriate to apply the restriction which relates to the access provider’s reasonably anticipated requirements in a context where the NTC is not supplying broadcasting services in competition with its broadcasting customers.

 

The telecommunications access regime gives protection for certain contractual rights in existence prior to the date of public exposure of the draft telecommunications legislation.  Clause 16(2) allows for the protection of similar rights, modifying the relevant date to the date of introduction of the Bill.

 

Section 152CR of the Trade Practices Act sets out criteria the ACCC must take into account in making a determination following an arbitration about access.  The criterion in paragraph 152CR(1)(f) relates to operational and technical requirements.

 

Clause 16(3) sets out more detailed criteria for technical and operational matters and fault detection in substitution for paragraph 152CR(1)(f) in recognition that as part of the sale process, a benchmark level will be developed setting out more detailed minimum requirements in relation to these matters.

 

The term ‘benchmark level’ is defined as the level specified by the Minister in writing.  Clause 29(c) makes an instrument made for this purpose a disallowable instrument.

 

Clause 17 - Relationship with other access regimes

 

This clause sets out the relationship between the modified telecommunications access regime in Part 3 of the Bill and other access regimes.

 

In brief, the Part 3 access regime will override any other access regime in relation to access to nominated services by nominated persons for nominated purposes.

Clause 17(1) makes it clear that the Part 3 access regime does not prevent the telecommunications access regime in Part XIC of the TPA applying to:

·        access to a nominated service by persons who are not nominated customers; and

·        access to a nominated service by nominated customers for purposes other than nominated purposes.

 

Whether the telecommunications access regime applies in the circumstances set out in clauses 17(1)(a) and (b) has to be determined by reference to Part XIC itself and the related provisions of the Telecommunications Act.

 

Clause 17(2) makes it clear that a notification of an access dispute cannot be given under Part IIIA of the Trade Practices Act in relation to access to a nominated service by a nominated customer for a nominated purpose.

 

Clause 17(3) makes it clear that the ACCC cannot accept an undertaking under Part IIIA of the TPA if terms and conditions of the undertaking relate to access to a nominated service by a nominated customer for a nominated purpose.

 

Part 4 - Restrictions on transfer of assets

 

Clause 18 - Minister’s approval required for transfers of original assets or replacement assets

 

Part 4 of the Bill prevents the transfer of an asset originally used by the NTA or the replacement for such an asset unless approved by the Minister.  This will, for example, enable the Minister to ensure that the proposed transferee has entered into satisfactory contracts with the ABC/SBS/RPH in relation to the core performance obligations and test the likely commercial or financial ability of the proposed transferee to continue to meet the obligations.

 

This provision will also ensure that the Minister will have notice of proposed transfers to enable consideration of whether the power to declare the proposed transferee to be a declared successor under clause 22 will need to be exercised following the transfer, if approved (see the explanatory notes to clause 22).

 

Clause 18(1) provides that a transfer of an original asset or replacement asset is of no effect unless approved in writing by the Minister before the time of transfer.

 

Clause 18(2) requires the Minister to approve an application for approval of such a proposed transfer unless the Minister refuses under clause 18(3).

 

Clause 18(3) sets out the grounds on which the Minister may refuse to approve a transfer.  Those grounds include where the Minister has reason to believe that the transfer might jeopardise continued access by a nominated customer to a nominated service for a nominated purpose.

 

Clause 18(3)(b) provides a reserve power for further grounds to be prescribed in regulations.  Any such ground must relate to the head of power in paragraph 51(v) of the Constitution.

 

Clause 18(4) enables application to be made to the Administrative Appeals Tribunal (AAT) for review of a decision to refuse approval of a transfer.

 

Clause 18(5) enables the Minister to exempt assets from the operation of clause 18 by notice in the Gazette .  It is intended that this power would be used, for example, to exempt assets that were not necessary to ensure continued provision of services.  One example would be original facilities which had been replaced by new facilities.  There would be no need to regulate any subsequent transfers of the assets which had been replaced.  Clause 29(d) makes a notice under this provision a disallowable instrument.

 

Part 5 - Transmitter licences

 

Clause 19 - Transfer of transmitter licences to ABC and SBS

 

Currently, transmitters used to transmit the national broadcasting services provided by the ABC and the SBS are licensed under section 100 of the Radiocommunications Act and these licences have been held by the Commonwealth in its capacity as provider of transmission services to the national broadcasters.

 

As a result of the sale of the national transmission network, the national broadcasters, rather than the NTCs, are to be entitled to be licensed under the Radiocommunications Act to operate transmitters for the purpose of providing national broadcasting services to the public.  The ABC and the SBS will be able to apply to the Australian Communications Authority (ACA) for a transmitter licence for new transmitters intended to be used for the provision of national broadcasting services (see explanatory notes to item 10 of Schedule 1 of the Consequential Amendments Bill).

 

This clause is a transitional provision which allows transmitter licences currently held by the Commonwealth to be transferred to the national broadcasters. 

 

Clause 19(1) empowers the Minister to make a declaration in relation to specified NBS transmitter licences that are held by the Commonwealth, and under clause 19(2), the specified licences will vest in the ABC or the SBS by force of that clause. 

 

Clause 19(3) provides that any transfers of transmitter licences from the Commonwealth to the ABC or the SBS is not to be subject to any fees or taxes.  In particular, it is intended that these transfers not be subject to any charges determined by the ACA relating to its costs under section 53 of the Australian Communications Authority Act 1997 .

 

Part 6 - Powers and immunities of NTC or declared successor

 

The purpose of the Part is to authorise an NTC or declared successor to carry out maintenance of existing facilities on the same basis as other participants in the communications industry.

The Part, read together with the definition of "telecommunications carrier rules" in clause 3, proposes to confer on an NTC and a declared successor, as defined in clause 3 of the Bill, the power to maintain an existing facility to the extent to which telecommunications carriers are so authorised under Schedule 3 to the Telecommunications Act.  In exercising its power, an NTC will be required to comply with the relevant conditions in Schedule 3 to the Telecommunications Act, with which a carrier is required to comply in exercising its like power.

 

The Part will not authorise an NTC to enter onto and inspect land to determine whether it is suitable for its purposes nor to carry out the installation of new facilities.  (Carriers are authorised to enter onto land under Division 2 and to carry out the installation of new facilities under Division 3 of Schedule 3 to the Telecommunications Act.  Those Divisions are expressly excluded by operation of clause 21(a) of the Bill.  Those Divisions will apply to an NTC or a declared successor only if it is the holder of a telecommunications carrier licence issued in accordance with the provisions of the Telecommunications Act.)

 

Clause 20 - Deemed application of telecommunications carrier rules

 

Clause 20(1) provides that the power will be exercisable only in respect of the maintenance of certain assets that are telecommunications facilities, within the meaning of the Telecommunications Act, and are owned by an NTC or a declared successor.  The relevant asset must be either land or an original or replacement asset that is located at land on which there is a telecommunications transmission tower that is an original or replacement asset.  Maintenance, for the purpose of clause 7 of Schedule 3 to the Telecommunications Act, is defined in clause 7(3) of that Schedule.  The effect of this provision is to limit the power to the maintenance of those telecommunications facilities (or replacements for those facilities) that are transferred to an NTC from the Commonwealth under clause 9 of the Bill. 

 

Clause 20(2) provides that an NTC or declared successor is to be deemed to be a telecommunications carrier and to hold a carrier licence for the purpose of the application of the telecommunications carrier rules.  The purpose of this provision is to enable enforcement of the applied provisions of Schedule 3 to the Telecommunications Act.  Its effect is that the obligations imposed on an NTC or declared successor by application of Schedule 3 will have effect as carrier licence conditions and may be enforced as such.

 

Clause 20(3) provides that, if an NTC or declared successor holds a telecommunications carrier licence the provisions in this Part will not apply to it.  However, the power under this Part to maintain a facility will revive if the NTC or declared successor ceases to hold a carrier licence or a relevant asset is transferred to a declared successor that does not hold a carrier licence.

 

Clause 21 - Miscellaneous modifications of telecommunications carrier rules

 

Clause 21 provides for certain provisions of Schedule 3 to the Telecommunications Act not to apply.  Those provisions mainly deal with matters relating to the power to enter land to determine whether it is suitable for a carrier's purposes and to the power to install a facility.

 

Part 7 - Miscellaneous

 

Clause 22 - Declared successors

 

Clause 22(1) enables the Minister to declare a person to whom national transmission network assets are transferred to be a declared successor.

 

This is intended to provide a mechanism to give the owner of an NTC the flexibility to restructure its commercial arrangements while ensuring that the obligations under the access regime in Part 3 and the benefits of the powers and immunities in Part 6 continue to apply to the new owner.

 

It also ensures that if an NTC proposes to sell assets to a third party purchaser and the Minister approves the transfer, the obligations and benefits of the post-sale rules can continue to apply to the new owner.

 

Clause 22(2) provides that the notice has no effect unless the person is the owner of an original or replacement asset at the date of publication of the notice.  This ensures that the Minister’s power to declare declared successors is limited to persons who own the relevant assets.

 

Clause 22(3) enables application to be made to the AAT for review of a decision to declare, or refuse to declare, a declared successor, or a decision to revoke such a declaration.

 

Clause 23 - Delegation

 

This clause allows the Minister to delegate his powers under the Act to the Secretary to the Department or to a Senior Executive Service officer in the Department.

 

Clause 23(2) allows the Minister to direct a delegate under clause 23(1) in relation to the exercise of a delegated power.

 

Clause 24 - Immunity from State and Territory regulatory laws

 

In carrying out activities relating to the construction and maintenance of transmission sites that are or have been solely or principally used in connection with the provision of national broadcasting services or other broadcasting services in the broadcasting services bands, the Commonwealth has generally sought to meet equivalent standards to those imposed by the relevant State or Territory laws.  However, prior to the decision of the High Court of Australia of 12 August 1997 in Re the Residential Tenancies Tribunal of New South Wales and Henderson; ex parte the Defence Housing Authority , which defined the scope of Commonwealth immunity from State law, the Commonwealth relied on such immunity as was thought to exist, as protection in respect of any occasion on which the Commonwealth may have failed to comply with the technical requirements of State or Territory laws. 

The purpose of clause 24(1) is to restore the Commonwealth, in relation to its activities solely or principally connected with the provision of such broadcasting services, to the position that was thought to exist before the decision in Henderson.

 

Clause 24(2) expressly negatives any inference about the application of laws other than those in respect of which specific provision has been made in the clause.

 

Clause 24(3) ensures that, the protection conferred by clause 24(1) continues to exist in relation to a site or telecommunications facility, while that site or facility remains in Commonwealth ownership or is owned by an NTC or declared successor.

 

Clause 24(4) is intended to put it beyond doubt that a site or telecommunications facility to which clause 24(1) applies does not, merely by remaining in place, constitute a trespass to the land on which it is located, while that site or facility remains in Commonwealth ownership or is owned by an NTC or declared successor.

 

Clause 24(5) makes it clear that clauses 24(3) and 24(4) do not extend the protection conferred by clause 24(1) to buildings, structures or other telecommunications facilities where construction commenced after the Act commences.

 

Clause 24(6) defines terms used in the clause.

 

Clause 25 - Application of Trade Practices Act to sale of shares in NTC

 

This clause makes it clear that the transfer of shares in an NTC will be an acquisition to which section 50 of the Trade Practices Act applies.  The application of that section is consistent with national competition policy.

 

Clause 26 - Lands Acquisition Act does not apply

 

This clause provides that the Lands Acquisition Act will not apply in relation to anything done pursuant to the provisions of the Bill once enacted.  The purpose of this clause is to simplify the administration of the sale process.

 

Clause 27 - Commonwealth records

 

This clause provides that Commonwealth records are to be dealt with in accordance with the provisions of the Archives Act 1983 and that the transfer of records is to be subject to the permission of Australian Archives in accordance with paragraph 24(2)(b) of the Archives Act.  The purpose of this clause is to ensure that the transfer of Commonwealth records to an NTC is managed by Australian Archives in accordance with the provisions of the Archives Act and policies and procedures put in place by Australian Archives to ensure that records of archival value are retained in Commonwealth ownership.

 

Clause 28 - Compensation for acquisition of property

 

If, apart from this clause, the operation of the Act would result in the acquisition of property from a person otherwise than on just terms in contravention of paragraph 51(xxxi) of the Constitution, the Commonwealth will be liable to pay reasonable compensation to the person in respect of the acquisition (clause 27(1)).

 

If the person and the Commonwealth cannot agree on the amount of the compensation, the person will be able to institute proceedings in the Federal Court of Australia for the recovery from the Commonwealth of such amount of reasonable compensation as the Court determines (clause 27(2)).

 

Clause 29 - Disallowable instruments

 

This clause makes certain instruments under the Act disallowable instruments, which accordingly must be notified in the Gazette , tabled in both Houses of the Parliament and are subject to Parliamentary disallowance.

 

Clause 30 - Regulations

 

This clause enables the Governor-General to make regulations for the purposes of the Act.



NATIONAL TRANSMISSION NETWORK SALE (CONSEQUENTIAL AMENDMENTS) BILL 1997

 

Clause 1 - Short title

 

Clause 1 provides for the citation of the National Transmission Network Sale (Consequential Amendments) Act 1997 .

 

Clause 2 - Commencement

 

Clause 2 of the National Transmission Network Sale (Consequential Amendments) Bill 1997 (the Consequential Amendments Bill) provides for the Act to commence on Royal Assent.

 

Clause 3 - Schedule(s)

 

This clause makes the amendments set out in the Schedule to the Acts specified in the Schedule and gives force to the other provisions in the Schedule.

 

Clause 4 - Transitional

 

Section 74 of the ABC Act imposes an obligation on the Commonwealth to provide transmitting stations for use in connection with the performance of the functions of the ABC. 

 

Section 71 of the SBS Act provides that the Minister may arrange for the provision and operation of transmission facilities for the purpose of broadcasting programs of the SBS.

 

Items 6 and 20 of this Schedule repeal these sections (see explanatory notes to items 6 and 20).  This item provides that despite their repeal, these sections continue to have effect in relation to a particular area until the Commonwealth ceases to have a controlling interest in the company to which the assets for that area have been transferred in accordance with the National Transmission Network Sale Act 1997 .

 

This item clarifies that the Commonwealth retains the responsibility to provide transmission facilities to the national broadcasters during the sale process whilst the Commonwealth continues to control those facilities.

 

SCHEDULE 1 - AMENDMENTS

 

Amendments to the Australian Broadcasting Corporation Act 1983

 

Item 1 - Subsection 3(1)

I tem 2 - Subsection 3(1)

 

Subsection 3(1) of the ABC Act contains definitions of key terms used in that Act.

 

These items amend subsection 3(1) by respectively defining “ABA” to mean the Australian Broadcasting Authority and “national broadcasting service” to have the same meaning as in the BSA.  These amendments are consequential on the amendments in items 7 and 8 of this Schedule (see explanatory notes to items 7 and 8).

 

Item 3 - Subsection 3(1) (definition of technical equipment )

Item 4 - Subsection 3(1) (definition of wireless telegraphy )

 

Subsection 3(1) of the ABC Act currently contains definitions of the terms “technical equipment” and “wireless telegraphy”.  These terms are used only in Part VII of the ABC Act, which is repealed by item 6 of this Schedule (see explanatory notes to item 6).  As a consequence of the amendment in item 6, this item repeals the definitions of “technical equipment” and “wireless telegraphy” .

 

Item 5 - After paragraph 25(1)(d)

 

Section 25 of the ABC Act sets out the general powers of the ABC.

 

This item amends subsection 25(1) of the ABC Act by inserting new paragraphs (da) to (dc), which give the ABC the power to:

(da)  produce, promote or present programs, or arrange, or provide facilities, for the production, promotion, or presentation of programs;

(db)  transmit programs or other matter by means of guided or unguided electromagnetic energy, or provide facilities for such transmissions; and

(dc)  arrange for the transmission of programs or other matter by means of guided or unguided electromagnetic energy.

 

It is necessary to insert these powers as a result of the repeal of Part VII of the ABC Act by item 6 of this Schedule.

 

Subsection 74(4) in Part VII requires the ABC to provide all technical equipment to connect studios to the local transmitting station.  New paragraphs (da) to (dc) ensure that the ABC can still provide such technical equipment and can arrange for the transmission of programs.  These paragraphs are consistent with similar general powers given to the SBS under paragraphs 44(1)(a), (b) and (c) of the SBS Act (as amended by item 18 of this Schedule).

 

Item 6 - Part VII

 

Part VII of the ABC Act sets out the technical services provisions of that Act, which provide for transmitting stations and technical equipment, transfer to the ABC of certain assets, provision of satellite systems and electric lines.

 

This clause repeals Part VII as its provisions are out of date and make use of terms which are no longer used in other broadcasting legislation. 



Item 7 - After section 79

 

This item inserts new section 79AA into the ABC Act.  It provides that if a person has made a complaint to the ABC about degradation of the quality of signal reception of a national broadcasting service provided by the ABC from an analogue terrestrial radiocommunications transmitter, and the person has not received an adequate response within 60 days, the Minister may direct the ABA to conduct an investigation into the matter.

 

The ABC is to have primary responsibility for the provision of transmission services for the purposes of the performance of its functions.  All complaints about the degradation of signal quality by members of the public would be handled by the ABC in the first instance and it is anticipated that complaints would normally be resolved by the ABC.

 

The provision, however, provides an avenue for the Minister to obtain independent expert advice where complaints do not appear to have been satisfactorily resolved by the ABC.  It is expected that this power would be exercised on limited occasions in circumstances where the Minister has received a number of complaints from members of a local community or their representatives about a degradation of signal quality in that community and no adequate response has been received from the ABC.

 

Item 8 - At the end of section 80

 

Section 80 of the ABC Act sets out particular matters that must be included in the ABC’s annual report. 

 

This item inserts the additional requirement that the ABC include particulars of any significant changes during the year in the transmission coverage, or transmission quality, of national broadcasting services provided by the ABC.

 

This amendment reflects the public interest in the continued provision of core transmission services for the purposes of providing national broadcasting services.

 

Amendments to the Radiocommunications Act 1992

 

Item 9 - Section 5

 

This item inserts a definition of the term “NBS transmitter licence” which would be used in the amendments to the Radiocommunications Act made by this Bill.  The term is defined to mean a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service within the meaning of the BSA. 

 

It is intended that the term mean only those transmitters which transmit the relevant signal to the public directly, including transmitters that transmit both to the public and to another transmitter or translator which then transmits directly to the public, whether the relevant transmitters are transmitting a signal in the broadcasting services bands or not.

Item 10 - After subsection 100(3)

 

Section 100 of the Radiocommunications Act empowers the ACA to issue apparatus (transmitter and receiver) licences on application.  This item amends section 100 of the Radiocommunications Act to insert new subsection 100(3A), which provides that an NBS transmitter licence cannot be issued to any person other than the ABC, the SBS or the Commonwealth. 

 

After the sale of the national transmission network, the national broadcasters, rather than the purchaser(s) of the network, are to hold licences under section 100 of the Radiocommunications Act to operate transmitters for the purpose of providing national broadcasting services to the public.

 

This is to ensure that the national broadcasters retain access in the long-term to frequencies for the provision of their national broadcasting services and to ensure the national broadcasters are in a reasonable position to negotiate with other transmission service providers after the sale of the network.

 

Item 11 - Subsection 106(1)

 

Subsection 106(1) of the Radiocommunications Act empowers the ACA to determine in writing a price-based allocation system for allocating and/or issuing specified transmitter licences (other than licences issued under section 101A).

 

This item amends subsection 106(1) so that the ACA may not determine a price-based allocation system for NBS transmitter licences.  It is not intended that the national broadcasters be required to bid for NBS transmitter licences.

 

Item 12 - At the end of subsection 106A(2)

 

Subsection 106A(1) of the Radiocommunications Act provides that for the purposes of section 50 and related sections of the Trade Practices Act, the issue of an apparatus licence to a person is taken to be an acquisition by the person of an asset of another person.

 

Section 50 of the Trade Practices Act prohibits the acquisition of an asset by a person if the acquisition would have the effect, or is likely to have the effect, of substantially lessening competition in a market.

 

This item amends section 106A so that subsection 106A(1) does not apply to the acquisition of an NBS transmitter licence by the ABC, the SBS or the Commonwealth.  It is not intended that the issue of NBS transmitter licences be prevented by the operation of section 50 of the Trade Practices Act.

 

Item 13 - At the end of section 131AA

 

Subsection 131AA(1) allows an apparatus licensee to apply in writing to the ACA for the licence to be transferred to another person.  This item amends section 131AA by  inserting new subsection 131AA(4), which provides that an NBS transmitter licence cannot be transferred to any person other than the ABC, the SBS or the Commonwealth.

 

This amendment gives effect to the intention that the national broadcasters, rather than the NTCs are to hold licences under section 100 of the Radiocommunications Act to operate transmitters for the purpose of providing national broadcasting services to the public. 

 

Amendments to the Special Broadcasting Service Act 1991

 

Item 14 - Section 3

 

Section 3 of the SBS Act sets out definitions of key terms used in that Act.

 

This item amends section 3 by defining “ABA” to mean the Australian Broadcasting Authority.  This amendment is consequential on the amendments in item 19 of this Schedule (see explanatory notes to item 19).

 

Item 15 - Section 3 (definition of electric line )

 

Section 3 of the SBS Act currently contains a definition of the term “electric line”.  This term is used only in section 72 of the SBS Act, which is repealed by item 21 of this Schedule (see explanatory notes to items 20 and 21).  As a consequence of the amendment in item 21, this item repeals the definition of “electric line”.

 

Item 16 - Section 3

 

This item amends section 3 of the SBS Act by defining “national broadcasting service” to have the same meaning as in the BSA.  This amendment is consequential on the amendments contained in items 19 and 22 (see explanatory notes to items 19 and 22).



Item 17 - Section 3 (definition of transmission facilities )

 

Section 3 of the SBS Act currently contains a definition of the term “transmission facilities”.  This term is used only in sections 71 and 72 of the SBS Act, which are repealed by items 20 and 21 of this Schedule (see explanatory notes to items 20 and 21).  As a consequence of the amendments in items 20 and 21, this item repeals the definition of “transmission facilities”.

 

Item 18 - Paragraphs 44(1)(b) and (c)

 

Section 44 of the SBS Act sets out the general powers of the SBS.  Paragraphs 44(1)(b) and (c) confer on the SBS the powers to:

(b)    transmit programs or provide facilities for the transmission of programs; and

(c)    arrange for the transmission of programs.

 

This item amends these paragraphs to widen the scope of the relevant powers from “programs” alone to programs “or other matter by means of guided or unguided electromagnetic energy”.  This amendment is consistent with the amendments to subsection 25(1) of the ABC Act inserted by item 5 of this Schedule.

 

Item 19 - After section 70

 

This item inserts new section 70AA into the SBS Act.  It provides that if a person has made a complaint to the SBS about degradation of the quality of signal reception of a national broadcasting service provided by the SBS from an analogue terrestrial radiocommunications transmitter, and the person has not received an adequate response within 60 days, the Minister may direct the ABA to conduct an investigation into the matter.

 

The SBS is to have primary responsibility for the provision of transmission services for the purposes of the performance of its functions.  All complaints about the degradation of signal quality by members of the public would be handled by the SBS in the first instance and it is anticipated that complaints would normally be resolved by the SBS. 

 

The provision, however, provides an avenue for the Minister to obtain independent expert advice where complaints do not appear to have been satisfactorily resolved by the SBS.  It is expected that this power would be exercised on limited occasions in circumstances where the Minister receives a number of complaints from members of a local community or their representatives that there has been a degradation of signal quality in that community and no adequate response has been received  from the SBS.

 

Item 20 - Section 71

Item 21 - Section 72

 

Section 71 of the SBS Act provides that the Minister may arrange for the provision and operation of transmission facilities for the purpose of broadcasting programs of the SBS. 

 

Section 72 of the SBS Act allows a person acting under the authority of the Minister to install and maintain electric lines and arrange for and obtain the supply of electric current necessary for the operation of transmission facilities as arranged by the Minister under section 71.

 

As a consequence of the sale of the national transmission network, the SBS itself will be arranging for the provision and operation of transmission facilities for the purpose of broadcasting its programs.  These items repeal sections 71 and 72 accordingly.

 

Item 22 - At the end of section 73

 

Section 73 of the SBS Act sets out particular matters that must be included in the SBS’s annual report. 

 

This item inserts the additional requirement that the SBS include particulars of any significant changes during the year in the transmission coverage, or transmission quality, of national broadcasting services provided by the SBS.

 

This amendment reflects the public interest in the continued provision of core transmission services for the purposes of providing national broadcasting services.