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Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017

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2016-2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

COMMUNICATIONS LEGISLATION AMENDMENT (DEREGULATION AND OTHER MEASURES) BILL 2017

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Communications,

Senator the Hon. Mitch Fifield)

 

 

 

 

 

 

 



COmmunications legislation amendment (deregulation and other measures) bill 2017

 

OUTLINE

 

The Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017 (Bill) contains a package of measures designed to minimise the regulatory burden on the broadcasting and telecommunications sectors, and to simplify regulation by removing redundant or otherwise unnecessary provisions . The amendments would contribute to the Government’s agenda to increase productivity by cutting unnecessary red tape while maintaining important consumer safeguards.

 

The proposed measures in the Bill would amend the Broadcasting Services Act 1992 (BSA) to:

·          streamline account keeping and licence fee administration arrangements for commercial broadcasters and datacasting transmitter licensees by removing unnecessary audit requirements, extending the classes of office holders eligible to make statutory declarations about gross earnings, and providing the Australian Communications and Media Authority (ACMA) with discretion not to pursue unpaid licence fees where inefficient to do so;

·          remove duplicative reporting requirements for licensees, publishers and controllers to notify the ACMA of certain changes in control of regulated media assets to reduce the administrative burden on affected parties while still allowing the ACMA to maintain accurate control registers;

·          provide a consistent classification arrangement for all television programs, including films, by removing requirements for certain television broadcasters to apply different classification standards for films when developing industry codes of practice;

·          remove unnecessary duplication in the ACMA’s complaints handling and investigation functions;

·          provide greater flexibility to the ACMA in choosing the appropriate publication method for notices in respect of program standards or standards relating to datacasting.

The Bill would also:

·          amend the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999 to enable the telecommunications industry to develop an industry-based scheme for the management of telephone numbering resources, provided certain safeguards are met;

·          remove the ability of the Australian Competition and Consumer Commission (ACCC) to issue tariff filing directions to certain carriers and carriage service providers (CSPs) under Part XIB of the Competition and Consumer Act 2010 which are unduly burdensome;

·          reform the statutory information collection powers of the ACMA and the ACCC, and their reporting obligations, so as to facilitate monitoring and reporting which keeps pace with changing markets and consumer behaviour;

·          amend the Telecommunications Act 1997 to repeal the power of NBN Co to issue a statement that it is not installing fibre in a new real estate development, and to remove the obligation for NBN Co to maintain a public register of such statements, as it is not appropriate for NBN Co to exercise such quasi-regulatory power;

·          amend section 19 of the National Broadband Network Companies Act 2011 in respect of the supply of non-communications goods to permit National Broadband Network (NBN) companies to dispose of surplus goods (such as assets) to any person, providing NBN Co (and any other NBN corporation) with greater flexibility in its business operations;

·          abolish the requirement for the ACMA to consult with an advisory committee before declaring a submarine cable protection zone under Schedule 3A to the Tel Act to reduce administrative costs and on the basis the ACMA must consult publicly anyway;

·          correct an error in the Telecommunications Act 1997 which relates to inadmissibility of evidence for certain proceedings;

·          remove redundant and unnecessary legislation including through the repeal of various spent historical Acts.

The measures amending numbering management in the Telecommunications Act 1997 are linked to amendments made to the Telecommunications (Numbering Charges) Act 1997 (NCA) through the Telecommunications (Numbering Charges) Amendment Act 2016 . The commencement of the consequential amendments in the Telecommunications (Numbering Charges) Amendment Act 2016 are contingent on the passage of the Bill. These consequential amendments would reflect that, on the commencement of the amendments proposed by the Bill, the allocation to and holding of numbers by CSPs, for which charges arise under the NCA, could in future be managed in accordance with an industry-based scheme.

 

 

 

FINANCIAL IMPACT STATEMENT

 

The Bill will not have significant impact on Commonwealth expenditure or revenue.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017

 

The Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of Bill

 

The general purpose of the Bill is to minimise the regulatory burden on the broadcasting and telecommunications sectors, and to simplify regulation by removing redundant or otherwise unnecessary provisions .

 

The Bill would amend the Broadcasting Services Act 1992 (BSA) to:

·          streamline account keeping and licence fee administration arrangements for commercial broadcasters and datacasting transmitter licensees by removing unnecessary audit requirements, extending the classes of office holders eligible to make statutory declarations about gross earnings and providing the Australian Communications and Media Authority (ACMA) with discretion not to pursue unpaid licence fees where inefficient to do so;

·          remove duplicative reporting requirements for licensees, publishers and controllers to notify the ACMA of certain changes in control of regulated media assets to reduce the administrative burden on affected parties while still allowing the ACMA to maintain accurate control registers;

·          provide a consistent classification arrangement for all television programs, including films, by removing requirements for certain television broadcasters to apply different classification standards for films when developing industry codes of practice;

·          remove unnecessary duplication in the ACMA’s complaints handling and investigation functions;

·          provide greater flexibility to the ACMA in choosing the appropriate publication method for notices in respect of program standards or standards relating to datacasting.

The Bill would also:

·          amend the Telecommunications Act 1997 (Tel Act) and the Telecommunications (Consumer Protection and Service Standards) Act 1999 to enable the telecommunications industry to develop an industry-based scheme for the management of telephone numbering resources, provided certain safeguards are met;

·          amend Part XIB of the Competition and Consumer Act 2010 to remove the ability of the Australian Competition and Consumer Commission (ACCC) to issue tariff filing directions to certain carriers and carriage service providers which are unduly burdensome;

·          make amendments to the Tel Act and the Competition and Consumer Act 2010 to reform the statutory information collection powers of the ACMA and the ACCC, and their reporting obligations, so as to facilitate monitoring and reporting which keeps pace with changing markets and consumer behaviour;

·          amend the Tel Act to repeal the power of NBN Co to issue a statement that it is not installing fibre in a new real estate development, and to remove the obligation for NBN Co to maintain a public register of such statements, as it is not appropriate for NBN Co to exercise such a quasi-regulatory power;

·          amend section 19 of the National Broadband Network Companies Act 2011 in respect of the supply of non-communications goods to permit National Broadband Network (NBN) companies to dispose of surplus goods (such as assets) to any person, providing NBN Co (and any other NBN corporation) with greater flexibility in its business operations;

·          abolish the requirement for the ACMA to consult with an advisory committee before declaring a submarine cable protection zone under Schedule 3A to the Tel Act  to reduce administrative costs and on the basis the ACMA must consult publicly anyway;

·          correct an error in the Tel Act which relates to inadmissibility of evidence for certain proceedings;

·          remove redundant and unnecessary legislation including through the repeal of various spent historical Acts;

·          make consequential amendments to the Telecommunications (Numbering Charges) Amendment Act 2016 to reflect that, on the commencement of the amendments proposed by the Bill, the allocation to and holding of numbers by CSPs could in future be managed in accordance with an industry-based scheme.

 

Human rights implications

 

The rights of children

 

Measures in the Bill relating to the classification of films broadcast on television potentially engage the rights of children.

 

Australia is a signatory to the Convention on the Rights of the Child. This convention is listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . Article 3(1) of the CRC provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Article 3(2) provides that a child is to be afforded such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, State Parties shall take all appropriate legislative and administrative measures.

 

The BSA currently prescribes in subsections 123(3A) to (3D) particular classification requirements for televising films that must be reflected in the relevant broadcasting industry codes of practice. These include the requirement that codes of practice provide for films that are to be broadcast on television to be classified according to the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995 (Classification Act), and requirements about the times of day for broadcasting films of particular classifications.

 

These provisions were originally introduced into the BSA by the Transport and Communications Legislation Amendment Act (No 3) 1992 to promote consistency between the classification treatment of films when delivered via cinema or home media (e.g. VHS/DVD), and when delivered via television broadcasts. In the time since these provisions were introduced, however, the broadcast and non-broadcast classification regimes have converged to the point where they use a very similar rating framework and methods in classifying content.

 

The measures in the Bill would amend the BSA to remove the requirements in subsections 123(3A) to (3D), so as to allow films broadcast on television to be subject to the same classification framework as applies to other content broadcast on television. The intention is to remove the concept of ‘film’ being a distinct, separate form of television programming subject to a separate (albeit very similar) classification framework.

 

The measures in the Bill would potentially engage with the rights of children because the measures would affect the way in which the classification of films broadcast on television is regulated, including the timing of broadcasts. The classification of films broadcast on television would become a matter for industry codes of practice under the BSA rather than for the Classification Board under the Classification Act.

 

However, the similarities that currently exist between the film and television classification ratings frameworks mean that there will be no significant change in a practical sense to the classification of films broadcast on television as a result of the removal of the requirements in subsections 123(3A) to (3D) of the BSA. To the extent that there are very minor differences between the frameworks, these do not derogate from the protections available in relation to children.

 

Also, safeguards currently exist in the BSA to ensure that classification arrangements contained in industry codes of practice reflect prevailing community standards, and these would also apply to the arrangements for films broadcast on television. These safeguards include the requirement that codes of practice are developed in consultation with the ACMA (subsection 123(1) of the BSA refers), and the ability for the ACMA to determine program standards to provide appropriate community safeguards where codes of practice are considered by the ACMA to be deficient (section 125 of the BSA refers). These safeguards would operate to ensure that classification arrangements for films continue to reflect prevailing community standards and provide mechanisms for ensuring the continued protection of the rights of children.

 

The right not to be compelled to testify against oneself or to confess guilt

 

Measures in the Bill that correct an error in the Tel Act which relates to the inadmissibility of evidence for certain proceedings potentially engage the right against self-incrimination.

 

Australia is a signatory to the International Covenant on Civil and Political Rights (ICCPR). This convention is listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . Article 14(3)(g) of the ICCPR protects the right to be free from self-incrimination by providing that a person is not to be compelled to testify against him or herself or to confess guilt. In Australia, the privilege against self-incrimination has long been recognised by the common law and applies unless abrogated expressly by statute.

 

The right against self-incrimination in article 14(3)(g) of the ICCPR applies to individuals who are charged with a criminal offence. However, this right may also apply in relation to a civil regime if the substance and effect of the proceedings is classified as ‘criminal’ under international human rights law. A civil regime may be ‘criminal’ for the purposes of the ICCPR even if it is ‘civil’ under Australian domestic law.

 

Section 524 of the Tel Act deals with the giving of information or evidence or the production of a document by an individual in circumstances where the information or evidence or the production of the document might tend to incriminate or expose the individual to a penalty.

 

Paragraph 524(2)(d) is intended to provide a substantial protection against self-incrimination to individuals who are, or who constitute, carriers or carriage service providers, so that information or documents provided by such an individual under section 521 of the Tel Act can be used in civil proceedings against that individual only for failure to fully comply with section 521, but not in relation to any other civil penalty proceedings. The intention of the provision is evidenced in the Explanatory Memorandum to the Telecommunications Bill 1996 (clause 508). However, due to a technical error in paragraph 524(2)(d), proceedings relating to section 521 are the only proceedings where the information or documents is inadmissible. This means that individuals are currently denied the intended effect of section 524, being to provide substantial protection against self-incrimination.

 

The Bill includes measures that would correct this technical error in paragraph 524(2)(d) of the Tel Act, so that the provision would operate as originally intended. By correcting this error, the Bill would engage with the right against self-incrimination by significantly expanding the breadth of civil proceedings for which the protection applies, and would provide that it is only in a limited subset of proceedings, namely those relating to compliance with section 521, whereby documents or information supplied by an individual may be used against the individual.

 

Conclusion

 

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 



 

 

ABBREVIATIONS

 

The following abbreviations are used in this explanatory memorandum:

 

 

ABC Act

Australian Broadcasting Corporation Act 1983

ACCC

Australian Competition and Consumer Commission

ACMA

Australian Communications and Media Authority

ACMA Act

Australian Communications and Media Authority Act 2005

Bill

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017

 

BSA

Broadcasting Services Act 1992

Competition Act

Competition and Consumer Act 2010

CSP

carriage service provider

 

NBN Co

NBN Co Limited

NBN Companies Act

National Broadband Network Companies Act 2011

NCA

Telecommunications (Numbering Charges) Act 1997

SBS Act

Special Broadcasting Service Act 1991

TCPSS Act

Telecommunications (Consumer Protection and Service Standards) Act 1999

 

Tel Act

Telecommunications Act 1997

 

 



 

NOTES ON CLAUSES

 

communications legislation amendment (deregulation and other measures) bill 2017

 

 

Clause 1 - Short title

Clause 1 provides for the short title of the Act to be the Communications Legislation Amendment (Deregulation and Other Measures) Act 2017 .

 

Clause 2 - Commencement

Clause 2 of the Bill specifies when the Act would commence. It specifies that:

·          Sections 1 to 3 (and anything not covered elsewhere in the table in clause 2) commence on the day the Act receives the Royal Assent

·          Schedules 1, 2, 3 (Part 1 only), 4, 5, 6, 7 and 8 commence the day the Act receives the Royal Assent

·          Division 1 of Part 2 of Schedule 3 commences the day the Act receives the Royal Assent, but does not commence at all if this Act receives the Royal Assent after the commencement of item 5 of Schedule 2 to the Competition and Consumer Amendment (Misuse of Market Power) Act 2017

·          Division 2 of Part 2 of Schedule 3 commences on the start of the day the Act receives the Royal Assent, or immediately after the commencement of item 5 of Schedule 2 to the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 , whichever is the later. However, Division 2 of Part 2 of Schedule 3 does not commence at all unless item 5 of Schedule 2 to the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 has commenced.

The amendments at dot points 3 and 4 are contingent, in the sense that their commencement is linked to the commencement and timing of the Competition and Consumer Amendment (Misuse of Market Power) Bill 2016, that would amend some of the same provisions proposed for amendment by the Bill. This is described further in the commentary in relation to Part 2 of Schedule 3 below.

 

Clause 3 - Schedules

Clause 3 is a machinery provision that would provide that each Act specified in a Schedule is amended or repealed in accordance with the items of the Schedule concerned, and any other items in the Schedule have effect according to their terms.

 

Schedule 1 - Streamlining Regulation

 

Broadcasting Services Act 1992

 

Item 1 - Section 64

Item 2 - Section 65A (heading)

Item 3 - Section 65A

Item 4 - Section 65B

Part 5 of the BSA sets out rules governing who may be in a position to exercise control (or be a director of a company in a position to exercise control) of commercial television and radio broadcasting licences, datacasting transmitter licences and newspapers that are ‘associated’ with commercial television or radio broadcasting licence areas (together, ‘regulated media assets’). The primary objective of the rules is to encourage diversity in the control of these regulated media assets.

To enable the ACMA to monitor compliance with the various diversity and control rules in Part 5, Division 6 of Part 5 imposes requirements on certain persons to notify the ACMA of information about changes to the control arrangements of regulated media assets.

Section 63 of the BSA requires each licensee and publisher of a regulated media asset to notify the ACMA when the licensee or publisher becomes aware that a person becomes, or ceases to be, in a position to exercise control of the asset, within ten business days of the licensee or publisher becoming aware of the change in control.

Section 64 of the BSA requires a person who becomes aware that they have come into a position to exercise control of a regulated media asset to notify the ACMA within ten business days of becoming aware of the change.

The requirements of sections 63 and 64 are unnecessarily duplicative, requiring that the ACMA be notified twice about the same change in control of the regulated media asset.

To streamline these arrangements, item 1 of Schedule 1 to the Bill would repeal section 64 so that the obligation that is placed on an incoming controller of a regulated media asset is removed. The ACMA would continue to be notified of the change in control by the relevant licensee or publisher of the asset in accordance with the requirements of section 63.

Items 2, 3 and 4 of Schedule 1 to the Bill would make consequential amendments to sections 65A and 65B of the BSA to remove references to section 64.

Item 5 - Subsections 123(3A) to (3D)

Section 123 of the BSA requires that groups representing commercial broadcasting licensees, community broadcasting licensees, providers of subscription broadcasting and narrowcasting services and providers of open narrowcasting services develop codes of practice that apply to the broadcasting operations of those sections of the broadcasting industry.

Under subsections 123(3A), (3B), (3C) and (3D), codes of practice developed for commercial and community television broadcasting licensees and providers of open narrowcasting television services must ensure that those licensees and providers apply the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act) when broadcasting films, rather than the code-based television classification guidelines that apply to other television programs broadcast.

Subsections 123(3A) to (3D) also include related time zone and consumer advice requirements for films that must be included in codes of practice, displacing the requirements in the industry code of practice which would otherwise apply to all television programs.

The application of the Classification Act requirements was originally intended to ensure consistency between classification ratings applied to films when screened in theatre, released on DVD/VHS and broadcast on television.

Since the enactment of the requirements of subsections 123(3A) to (3D) in 1992, the film and television classification schemes have converged to the point that they are largely the same. Accordingly, the original policy intent behind the provisions is redundant. Duplicate classification rules in industry codes of practice and the BSA are inefficient for broadcasters, requiring broadcasters to have regard to multiple classification frameworks for the different kinds of content delivered over the same platform. It is therefore intended that the role of the Classification Board in classifications being used for films when they are broadcast by commercial and community television broadcasters and open narrowcasting service providers will end, with television program classification for these licensees to be solely a matter for industry codes of practice.

Accordingly, item 5 of Schedule 1 to the Bill would remove the application of the Classification Act to films broadcast on television by these licensees by repealing subsections 123(3A) to (3D). The repeal of these provisions would allow a single classification scheme for all television programs, including films. Certain classification related licence conditions will also be repealed as a result of the change (see items 12 to 14 below).

Item 6 - Subsection 205B(4)

Item 7 - Subsection 205B(4A)

Item 8 - Subparagraph 205BA(1)(c)(i)

Item 9 - Subsection 205BA(2)

Subparagraph 205B(1)(c)(ii) of the BSA requires that commercial television and radio broadcasting licensees provide to the ACMA within 6 months of the end of the financial year a statutory declaration stating the gross earnings in relation to the licence during the financial year. Subsection 205B(4) of the BSA requires that the statutory declaration be made by the chief executive officer (CEO) or secretary of the licensee, which can be administratively burdensome for some licensees.

Item 6 of Schedule 1 to the Bill would therefore amend subsection 205B(4) to extend the class of office holders eligible to make a statutory declaration concerning gross earnings to include a director of the licensee as well as persons who have knowledge of the financial affairs of the licensee and are authorised to make the declaration by the CEO or secretary.

Item 9 of Schedule 1 to the Bill would make a corresponding amendment to subsection 205BA(2) to similarly extend the class of office holders eligible to make a statutory declaration concerning gross earnings in relation to a channel A datacasting transmitter licence.

Item 10 - After subsection 205BA(2)

Subparagraph 205B(1)(c)(i) of the BSA requires that commercial television and radio broadcasting licensees provide to the ACMA a balance-sheet and profit and loss account at the end of each financial year.

Subsection 205B(4A) requires that the balance-sheet and profit and loss account provided by the licensee under subparagraph 205B(1)(c) be audited documents, unless the licensee is in a class of licensee excluded from the audit obligation by the ACMA (through legislative instrument).

The obligation on licensees to provide audited balance-sheet and profit and loss accounts can be a costly reporting burden for licensees that is not proportionate to any revenue assurance benefits.

Item 7 of Schedule 1 to the Bill would amend subsection 205B(4A) to remove the requirement that the financial documents provided to the ACMA be audited, and instead authorise the ACMA to require a licensee to provide an audited balance sheet and/or audited profit and loss account on a case by case basis, if considered necessary by the ACMA.

Items 8 and 10 of Schedule 1 to the Bill would make corresponding amendments to section 205BA in relation to the auditing requirements for balance-sheets and profit and loss accounts provided by channel A datacasting transmitter licensees.

Item 11 - At the end of section 205C

Under the Television Licence Fees Act 1964 , Radio Licence Fees Act 1964 and Datacasting Transmitter Licence Fees Act 2006 , commercial television and radio broadcasting licensees and channel A datacasting transmitter licensees respectively are required to pay to the Commonwealth specified fees in respect of their licence. Licensees pay to the ACMA an amount they believe is due and payable (taking into account any applicable rebate available) and provide various financial information to the ACMA in respect of their licence under section 205B or 205BA of the BSA, depending on the kind of licence.

The ACMA uses the information provided to it under sections 205B and 205BA to assess whether the amount of licence fees paid is correct. The ACMA then arranges for any repayments to the licensee (in respect of an overpayment of licence fees) or additional payments (in respect of an underpayment of licence fees) through issuing notices to licensees in accordance with section 205C of the BSA. Penalties for any licence fees that are unpaid by their due date are payable under section 205D of the BSA.

The requirement for the ACMA to seek payment of license fees under section 205C exists in respect of all unpaid licence fee amounts, even where the amount of underpayment is very small. In some circumstances, it may be uneconomical for the ACMA to prepare and issue notices to licensees under section 205C regarding unpaid licence fees, i.e. where the additional administrative work would outweigh the revenue to be recouped.

Item 11 of Schedule 1 to the Bill would amend section 205C of the BSA to provide the ACMA with the ability to waive the amount of license fees unpaid, and any additional penalty fees, if the ACMA considers that it would not be efficient to recover that amount from the licensee. However, it would be within the discretion of the ACMA as to whether it pursues the unpaid amount (and any related additional fees) or not.

The ACMA would be required under the amended section 205C to notify the licensee that the liability to pay the unpaid amount of licence fees, and associated penalty fees, had been waived.

Item 12 - Paragraphs 7(1)(g) and (ga) of Schedule 2

Item 13 - Paragraph 9(1)(g) and (ga) of Schedule 2

Item 14 - Subclause 11(3) of Schedule 2

Paragraphs 7(1)(g) and (ga), 9(1)(g) and (ga) and subclause 11(3) of Schedule 2 impose classification-related licence conditions on commercial television broadcasting licenses, community television broadcasting licensees and providers of open narrowcasting services respectively. These licence conditions place restrictions on the broadcast of films that have been classified as RC, X 18+ or R 18+ by the Classification Board under the Classification Act.

Items 12 to 14 of Schedule 1 to the Bill would repeal these Schedule 2 licence conditions, in connection with the repeal of subsections 123(3A) to (3D) of the BSA under item 5 of Schedule 1, as described above. With the repeal of these licence conditions, classification-related breaches would be dealt with as code of practice breaches, rather than as licence condition breaches.

 

National Broadband Network Companies Act 2011

 

Item 15 - Section 19

 

Part 2 of the NBN Companies Act sets out fundamental line of business restrictions on NBN Co. This includes section 19, which limits the circumstances under which NBN Corporations can supply non-communications goods to another person.

 

This restriction, together with other restrictions in sections 9, 18 and 20 of the NBN Companies Act, ensures that NBN Co is highly focused on its objectives in its operation and limits its ability to exercise market power through integration in horizontal markets, or participation in downstream markets.

 

Item 15 of Schedule 1 to the Bill would replace the current section 19 of the NBN Companies Act with a new version. The revised section would retain the existing provisions relating to goods for use in connection with supplies of eligible services, and add two new bases on which an NBN corporation would be entitled to supply such goods.

 

Currently an NBN corporation can only supply goods to another person if the goods are in connection with the supply, or prospective supply of an eligible service by the NBN Corporation. This restriction means that currently an NBN corporation cannot sell off surplus assets (for example, office equipment, vehicles) unless it also supplies eligible services to the person who buys the asset. As a result, an NBN corporation’s ability to dispose of surplus assets at market rates is unduly restricted. The amendments made by item 15 would permit an NBN corporation to also supply goods to another person if the NBN corporation:

 

·          did not obtain the goods for the purpose of supplying the goods; or

·          obtained the goods for the purpose of supplying the goods in connection with the supply, or prospective supply, of an eligible service; and considers the goods to be excess to the NBN corporation’s requirements.

These additional grounds will allow NBN corporations to manage their asset holdings in a more efficient and financially effective manner.

 

Telecommunications Act 1997

Item 16 - Paragraph 524(2)(d)

Item 16 would correct a technical error in Part 27 of the Tel Act relating to the admissibility of certain evidence in court proceedings.

Part 27 provides for the ACMA to obtain from carriers, service providers and other persons, information relevant to the performance of its telecommunications functions or the exercise of its telecommunications powers. Section 524 deals with the application of the privilege against self-incrimination (and exposure to penalty) where a person has been required to provide information, evidence or documents to the ACMA under Division 2 of Part 27, and with the admissibility of such material in court proceedings.

Paragraph 524(2)(d) is intended to provide a substantial protection against self-incrimination to individuals who are, or who constitute, carriers or carriage service providers, so that information or documents provided by such an individual under section 521 of the Tel Act can be used in civil proceedings against that individual only for failure to fully comply with section 521, but not in relation to any other civil penalty proceedings. The intention of the provision is evidenced in the Explanatory Memorandum to the Telecommunications Bill 1996 (clause 508). However, due to a technical error in paragraph 524(2)(d), proceedings relating to section 521 are the only proceedings where the information or documents is inadmissible. This means that individuals are denied the intended effect of section 524, being to provide substantial protection against self-incrimination.

Item 16 would correct this error by inserting the words “other than proceedings” after “570” in paragraph 524(2)(d), with the effect that material referred to in paragraphs 524(2)(a) and (b) of the Tel Act would be admissible only in relevant civil proceedings against an individual for contravention of section 521.

Item 17 - Subclause 2(1) of Schedule 3A (definition of advisory committee )

Item 18 - Clause 3 of Schedule 3A

Item 19 - Clause 16 of Schedule 3A

Item 20 - Paragraph 20(a) of Schedule 3A

Item 21 - Clause 31 of Schedule 3A

Item 22 - Paragraph 34(a) of Schedule 3A

Item 23 - Clause 49 of Schedule 3A

Part 2 of Schedule 3A to the Tel Act enables the ACMA to declare protection zones in relation to one or more submarine cables, or one or more submarine cables proposed to be installed, in Australian waters.

Currently, before declaring a protection zone in relation to submarine cables, the ACMA is required under clause 16 of Schedule 3A to the Tel Act to refer a proposal to declare a submarine cable protection zone to an advisory committee (established under section 58 of the ACMA Act) for consideration. The advisory committee may make recommendations in relation to the proposal, or otherwise provide details of the opinions of each committee member in relation to the proposal.

Items 17 to 23 of Schedule 1 to the Bill would make amendments to Schedule 3A to the Tel Act to remove the requirement to consult with an advisory committee before declaring, varying or revoking a submarine cable protection zone and the requirements in clause 49 relating to the composition of advisory committees established for the purposes of clauses 16 and 31 of Schedule 3A. Requiring the ACMA to establish and consult with a formal advisory committee for the purposes of declaring, varying or revoking a submarine cable protection zone is considered to be unnecessary and adds to administrative costs. In all instances, the ACMA is obliged to consult the Environment Secretary and the public before establishing, varying or revoking a submarine cable protection zone. The ACMA can also establish an advisory committee at its own initiative if it sees this as a more cost-effective way of soliciting stakeholder feedback. The ACMA would be expected to consider any feedback obtained through consultation in making a decision to declare, vary or revoke a submarine cable protection zone.

Telecommunications (Consumer Protection and Service Standards) Act 1999

 

Item 24 - Subsection 5(2) (definition of VOIP service )

Item 24 of Schedule 1 to the Bill would amend the definitions section of the TCPSS Act to repeal the definition of a ‘VOIP service’. The expression ‘VOIP service’ was only used in section 6A of the TCPSS Act, which was repealed by the Telecommunications Legislation Amendment (Deregulation) Act 2015 (which commenced on 1 July 2015). As a consequence of the repeal of section 6A, the definition of a ‘VOIP service’ is now redundant and can be repealed.

Item 25 - Section 12D

Item 26 - At the end of section 12D

Items 25 and 26 of Schedule 1 to the Bill would amend section 12D of the TCPSS Act.

Under section 12A of the TCPSS Act, the Minister may determine, by legislative instrument, that a specified carrier or CSP is the primary universal service provider in respect of a service obligation. Section 12D operates as a deeming provision, with the effect of deeming the Minister to have made an initial determination under section 12A (without any instrument having been made) that Telstra is the primary universal service provider.

The Telecommunications Legislation Amendment (Deregulation) Act 2015 repealed and substituted a new section 12D in order to streamline the provision.

Items 25 and 26 make technical amendments to section 12D to restore a provision that was inadvertently repealed as part of the streamlining amendments made to section 12D. This provision confirms that the determination that the Minister is taken to have made under section 12A (by section 12D) is not a legislative instrument (within the meaning of the Legislation Act 2003 ). This provision is merely declaratory of the law, as the deemed determination is not an instrument in writing and is therefore not a legislative instrument for the purposes of the Legislation Act 2003 . The provision is included to assist readers. It is not an exemption from the Legislation Act 2003 .



 

Schedule 2 - Complaints handling by the ACMA

 

Australian Communications and Media Authority Act 2005

 

Item 1 - Section 3 (paragraph (b) of the definition of investigation )

Item 2 - Paragraph 4(3)(a)

Items 1 and 2 of Schedule 2 to the Bill would make minor technical amendments to the ACMA Act that are consequential to the proposed repeal of Part 11 of the BSA by Item 3 of Schedule 2, as described below.

Item 1 of Schedule 2 would amend the definition of ‘investigation’ in the ACMA Act, to remove the reference to an investigation conducted or proposed to be conducted under Part 11 of the BSA.

Item 2 of Schedule 2 would amend paragraph 4(3)(a) of the ACMA Act. Subsection 4(3) sets out when an investigation carried out by the ACMA is completed for the purposes of the ACMA Act. The amendment to paragraph 4(3)(a) would remove the reference to an investigation conducted under Part 11 of the BSA.

Broadcasting Services Act 1992

 

Item 3 - Part 11

Item 4 - After section 170

Division 2 of Part 13 of the BSA provides the ACMA with a general power to conduct investigations for the purposes of the performance or exercise of its broadcasting, content and datacasting functions (as defined in the ACMA Act) and related powers. Those functions include monitoring compliance with broadcasting and datacasting codes of practice (paragraph 10(1)(j) of the ACMA Act refers) and monitoring and investigating complaints concerning broadcasting services (including national broadcasting services) and datacasting services (paragraph 10(1)(m) of the ACMA Act refers).

Part 11 of the BSA sets out a separate framework for complaints to be made and investigated concerning licensed and national broadcasters. Under Part 11, persons may complain to the ACMA in relation to the commission of an offence, breach of a civil penalty provision or breach of a licence condition or class licence (section 147 refers). Complaints may also be made to the ACMA about program content (limited to captioning in the case of national broadcasters) and code of practice compliance by licensed and national broadcasters (sections 148 and 150 refer). The ACMA may investigate such complaints if it thinks it desirable to do so (sections 149 and 151 refer).

Currently, complaints of the type referred to in Part 11 of the BSA can be investigated by the ACMA under its broadcaster investigation powers in Part 13 of the BSA. This was recently confirmed by the Federal Court in Harbour Radio Pty Limited v Australian Communications and Media Authority [2015] FCA 371 .

Accordingly, item 3 of Schedule 2 to the Bill would repeal Part 11 of the BSA, on the basis that it duplicates the ACMA’s investigation powers in Part 13.

Item 4 of Schedule 2 to the Bill would make consequential amendments to Part 13 to make it clear that under Part 13, persons have the same ability to make, and the ACMA has the same powers to investigate, complaints about licensed and national broadcasters as were available under Part 11.

Specifically, item 4 would insert a new section 170A into Part 13, providing that a person may make a complaint to the ACMA about a broadcasting service or datacasting service, and that the ACMA may (but is not required to) conduct an investigation into the complaint if it thinks desirable to do so. In this respect, new section 170A would make clear that complaints relating to licensed and national broadcasting services may be made and investigated in accordance with current practice.

As an aid to readers as to the scope of the ACMA’s investigation powers under Part 13, the note under proposed section 170A identifies that one of the ACMA’s functions is to monitor and investigate complaints concerning broadcasting services (including national broadcasting services) and datacasting services. In recognition of the co-regulatory framework applying to broadcasting, the note also identifies an example of a circumstance in which the ACMA may choose to investigate such a complaint, being where a person has made a complaint to the broadcaster about compliance with a code of practice and is not satisfied with the broadcaster’s response.

Item 5 - After section 171

Item 5 would insert a new section 171A in Part 13, consequential to the repeal of Part 11 of the BSA proposed by item 3 of Schedule 2. Proposed subsection 171A(1) would provide that, subject to the requirements of Division 2 of Part 13, procedures for the conduct of an investigation are within the discretion of the ACMA. Proposed subsection 171A(2) would require the ACMA to publish on its website guidance material as to the procedures that the ACMA will follow in investigating complaints made to it under Part 13. However, while the guidelines would set out the procedures that the ACMA will typically follow in conducting such investigations, it is not intended that the ACMA be prevented from adopting different procedures when investigating a particular complaint if it wished to do so. Proposed subsection 171A(2) would make this clear.

Item 6 - At the end of Division 2 of Part 13

Part 11 of the BSA currently provides for particular action that the ACMA may take in relation to complaints made to the ACMA relating to national broadcasting services, or datacasting services provided by the ABC/SBS.

Under section 152 of the BSA, where the ACMA investigates a complaint about a national broadcaster under Part 11 and finds the complaint to be justified, if the ACMA is satisfied that it should take action to encourage compliance, it may recommend that the relevant broadcaster take action to comply with a code of practice and take other appropriate action. Such other action may include broadcasting or otherwise publishing an apology or retraction. Under section 153 of the BSA, if the national broadcaster does not take action that the ACMA considers appropriate within 30 days, the ACMA may provide the Minister with a written report on the matter.

Item 6 would insert new sections 181 and 181A into the BSA to incorporate the provisions currently in sections 152 and 153 respectively into Part 13.

Proposed section 181 would also clarify that if the complaint concerns a breach of Part 9D of the BSA (which deals with captioning obligations), the recommendation that the ACMA would make would be in relation to compliance with Part 9D, not in relation to compliance with a code of practice. The current section 152 only refers to the ACMA taking action to encourage compliance with a code of practice, when the complaint may instead be about a national broadcaster’s non-compliance with its captioning obligations.

Schedule 3 - Monitoring of the telecommunications industry

 

Competition and Consumer Act 2010

 

Item 2 - Divisions 4 and 5 of Part XIB

Part XIB of the Competition Act sets out rules and obligations that apply to the telecommunications industry with respect to anti-competitive conduct and record keeping.

Division 4 of Part XIB provides for the collection of certain tariff information by the ACCC. Section 151BK provides the ACCC with a discretion to direct carriers and CSPs with a ‘substantial degree of power’ in a telecommunications market to provide specified tariff related information within a specified period. Sections 151BL to 151BT set out various additional requirements with respect to the permitted scope of tariff filing directions, public access to tariff information and related matters.

Division 5 of Part XIB sets out a tariff filing regime that applies specifically to Telstra. Section 151BTA requires Telstra to notify the ACCC of the imposition, variation or cessation of a charge for a basic carriage service.

The requirement to provide tariff information under Divisions 4 and 5 of Part XIB imposes unnecessary regulatory burden on business. The information captured by these Divisions is readily available to the ACCC through other avenues, including through public sources, and in this circumstance requiring the information be provided directly by carriers and CSPs to the ACCC is unduly burdensome for industry. It is also apparent that the tariff information provided under these Divisions is of limited benefit in assisting with ACCC investigations of potential anti-competitive conduct within the telecommunications industry and so on this basis retaining the provisions cannot be justified.

Item 2 of Schedule 1 to the Bill would therefore repeal Divisions 4 and 5 of Part XIB of the Competition Act.

Item 1 - Section 151AB (definition of tariff filing direction )

Item 3 - Paragraph 151BU(4)(b)

Items 1 and 3 of Schedule 3 to the Bill would make minor technical amendments to Divisions 1 and 6 of Part XIB of the Competition Act as a consequence of the repeal of Divisions 4 and 5 of Part XIB proposed by item 2, as described above. The amendments in items 1 and 3 would remove references to tariff filing directions and also references to specific legislative provisions contained within Divisions 4 and 5 of Part XIB.

Item 4 - After subsection 151BU(4)

Division 6 of Part XIB of the Competition Act provides for the ACCC to make rules (record-keeping rules) requiring specified carriers or CSPs to keep and retain records. These rules may also require carriers or CSPs to prepare reports about information in those records and to provide those reports to the ACCC. The ACCC must not exercise its powers under section 151BU unless the records to be retained contain information relevant to the matters listed in subsection 151BU(4).

 

The ACCC has made the Division 12 Report Record-Keeping and Reporting Rules to collect information from certain service providers for the purposes of monitoring and reporting to the Minister under Division 12 of Part XIB on charges paid by consumers for listed carriage services and ancillary goods and services.

 

Item 4 of Schedule 3 to the Bill would insert new subsections 151BU(4A) and (4B) requiring the ACCC to review any record keeping rule relevant to the operation of Division 12 every five years, with the first review to occur within a year of commencement of subsection 151BU(4A). In reviewing the rules, the ACCC would be required to have regard to:

·          whether the information is publicly available (new paragraph 151BU(4B)(a))

·          whether consumer demand for the goods or services to which the information relates has changed (new paragraph 151BU(4B)(b))

·          the usefulness of the information to consumers, the Minister and Parliament (new paragraph 151BU(4B)(c)).

 

The requirement for periodic review is intended to ensure that relevant record-keeping rules remain up-to-date, reflect changing markets and consumer behavior and minimise the regulatory burden on industry (for example, by excluding information that is otherwise publicly available). The new requirement represents a statutory minimum level of review but would not prevent the ACCC from undertaking more regular reviews if circumstances warrant.

 

Item 5 - Section 151BW

Item 6 - Paragraphs 151BX(1)(a), (b) and (c)

Item 7 - Paragraph 151BX(5)(a)

Item 8 - Subsection 151BX(5)

Item 9 - Paragraphs 151BZ(1)(a), (b) and (c)

Item 10 - Subsection 151BZ(2)

Item 11 - Paragraphs 151CA(1)(a) to (f)

Item 12 - Subsection 151CI(3)

Items 5 to 12 of Schedule 3 to the Bill would make minor technical amendments to Divisions 7 and 10 of Part XIB of the Competition Act as a consequence of the repeal of Divisions 4 and 5 of Part XIB proposed by item 2 of Schedule 3, as described above. The amendments in items 5 to 12 would remove references to tariff filing directions and also references to specific legislative provisions contained within Divisions 4 and 5 of Part XIB.

Item 13 - Subsection 151CL(1)

Item 14 - Subsection 151CL(2)

Item 15 - Subsection 151CL(5)

Item 16 - Subsection 151CL(6)

Division 11 of Part XIB of the Competition Act, consisting solely of section 151CL, requires the ACCC to review and report to the Minister on competitive safeguards in the telecommunications industry.

Under subsection 151CL(1), the ACCC is required to review and report each financial year on matters relating to the operation of Parts XIB and XIC of the Competition Act, and other matters relating to competition in the telecommunications industry as the ACCC thinks appropriate. This report is required to be tabled in Parliament under subsection 151CL(5).

The ACCC is also required under subsection 151CL(3) to review and report to the Minister, if directed in writing to do so, on specified matters relating to competitive safeguards within the telecommunications industry. This report is also required to be tabled in Parliament under subsection 151CL(5).

Items 13 and 14 of Schedule 3 to the Bill would remove the requirement that the ACCC provide the report prepared under subsection 151CL(1) to the Minister. The ACCC would instead be required to publish the report on its website as soon as practicable but no later than 6 months after the end of the financial year.

Item 15 of Schedule 3 to the Bill would limit the requirement to table a report in Parliament to the specific circumstances outlined in subsection 151CL(3), i.e. those reports prepared by the ACCC where directed to do so by the Minister.

Item 16 of Schedule 3 to the Bill would repeal subsection 151CL(6), which provided that section 151CL applies to financial years ending on or after 30 June 1998. This provision is redundant and may be removed.

Item 17 - Subsection 151CM(1)

Item 18 - Subsections 151CM(2) to (5)

Division 12 of Part XIB of the Competition Act, consisting solely of section 151CM, requires the ACCC to monitor and report to the Minister each financial year on charges paid by consumers for listed carriage services and goods/services for use in connection with such services. The report, which is tabled in Parliament, must also cover the adequacy of Telstra’s compliance with Part 9 of the TCPSS Act, which deals with price control arrangements. There are no current price control arrangements following the revocation in 2015 of the Telstra Carrier Charges - Price Control Arrangements, Notification and Disallowance Determination No.1 of 2005 .

 

Items 17 and 18 of Schedule 3 to the Bill would amend the scope of the ACCC’s monitoring and reporting function under subsection 151CM(1) to insert a more flexible regime in recognition of the fact that current monitoring and reporting obligations, applying largely to traditional providers but not necessarily to emerging or new entrants and services, may provide only a limited picture of the contemporary telecommunications market.

 

The ACCC would be empowered to decide which charges to monitor and report on, having regard to which goods or services are most commonly used by consumers (rather than being obliged to report on the matters currently listed in subsection 151CM(1)). The ACCC would no longer report to the Minister, and the report would no longer be tabled in Parliament, but instead the ACCC would be required to publish the report on its website as soon as practicable but no later than 6 months after the end of the financial year. This amendment would be consistent with amendments to section 151CL in items 13 and 14 of Schedule 3 to the Bill outlined above. The ACCC would be able to publish the reports required under sections 151CL and 151CM online together, at the same time.

 

Telecommunications Act 1997

 

Item 19 - Section 104

Item 20 - Subsections 105(1) to (4)

Item 21 - Subsection 105(5A)

Item 22 - Subsections 105(6) to (8)

Item 20 of Schedule 3 to the Bill would repeal subsections 105(1) to (4) of the Tel Act.

Section 105 of the Tel Act requires the ACMA to monitor and report to the Minister each financial year on certain elements of the performance of the telecommunications industry. The annual communications report prepared under section 105 must cover all significant matters relating to the performance of carriers and CSPs, with particular reference to consumer satisfaction, consumer benefits and quality of service. The ACMA obtains information from industry in preparing the report.

When first introduced, the requirement for an annual ACMA report under section 105(1) ensured a high degree of oversight of the telecommunications sector in the wake of increased competition and the introduction of a new regulatory framework. This policy rationale is not compelling now, close to 20 years later, where there is a mature telecommunications market. It is preferable to provide the ACMA with greater flexibility to prepare targeted reports that it considers will provide the most benefit to government and industry.

Accordingly, items 20 and 21 would reduce the required scope of the ACMA report under section 105 to the operation of Part 14 (National Interest Matters) of the Tel Act and the costs of compliance with that Part and the costs of compliance with the requirements of Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (regarding data retention).

Item 19 of Schedule 3 to the Bill would amend the simplified outline to reflect the amendments to section 105 described above.

Item 22 of Schedule 3 to the Bill would make consequential amendments to subsections 105(6) to (8) so that they are in line with the reporting requirements in the remainder of section 105 and to repeal subsection 105(8) of the Tel Act, which contains definitions used only in subsection 105(3) that is proposed for repeal.

Item 23 - At the end of section 105A

Section 105A of the Tel Act provides for the Minister to direct the ACMA to monitor, and report on, specified matters relating to the performance of carriers and CSPs. Item 23 would insert new subsections 105A(3) and (4) to make it clear that the Minister’s power to direct the ACMA extends to the form and publication of commissioned reports on specified matters.

Part 2 - Contingent amendments

Part 2 of Schedule 3 to the Bill sets out two sets of amendments that are consequential to the proposed repeal of the tariff filing provisions in Divisions 4 and 5 of Part XIB of the Competition Act, as described at item 2 above. The amendments are contingent in the sense that their commencement, and associated timing, is dependent on the commencement and timing of a second bill that would also amend Part XIB of the Competition Act; the proposed Competition and Consumer Amendment (Misuse of Market Power) Bill 2016 (Market Power Bill).

Schedule 2 to the Market Power Bill would, inter alia, repeal Divisions 2 and 3 in Part XIB of the Competition Act, and make consequential amendments to that Part. Division 2 sets out the circumstances in which carriers and carriage service providers engage in anti-competitive conduct, while Division 3 sets out a competition notice and exemption order regime. Because both the Bill and the Market Power Bill would amend the same provisions in Part XIB, and because the timing for the passage and commencement of each bill is uncertain and subject to the Parliament, it is necessary for the contingent amendments in Part 2 of Sch 3 to the Bill to address the different timing options.

These options can be summarised as follows:

  • If the Bill receives Royal Assent first, i.e. before commencement of the relevant provision (item 5 of Sch 2) of the Market Power Bill:
    • the amendments at Division 1 of Part 2 of Sch 3 to the Bill will commence on Royal Assent; and
    • the amendments at Division 2 of Part 2 of Sch 3 to the Bill will commence immediately after the commencement of the relevant provision in the Market Power Bill (if that provision commences); or will not commence at all (if that provision does not commence).
  • If the Bill receives Royal Assent second, i.e. after commencement of the relevant provision of the Market Power Bill:
    • the amendments at Division 1 of Part 2 of Sch 3 to the Bill will not commence at all
    • the amendments at Division 2 of Part 2 of Sch 3 to the Bill will commence upon Royal Assent.

 

Division 1 - Amendments if the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 does not commence before this Act

Competition and Consumer Act 2010

Item 24 - Section 151AA

Item 25 - Division 7 of Part XIB (heading)

Item 26 - Section 151BW (heading)

Item 27 - Section 151BX (heading)

Item 28 - Paragraph 151BX(3)(b)

Item 29 - Section 151BZ (heading)

Item 30 - Subsection 151CD(1)

Item 31 - Paragraph 151CJ(1)(d)

Items 24 to 31 of Schedule 3 to the Bill would make minor consequential amendments to Part XIB of the Competition Act as a consequence of the repeal of Divisions 4 and 5 (regarding tariff filing directions) of that Part proposed by item 2 of Schedule 3 to the Bill, as described above. The consequential amendments would remove references to the repealed Divisions from a series of headings and other provisions located in Divisions 1, 7 and 10 of Part XIB.

Division 2 - Amendments to commence after the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 commences

Competition and Consumer Act 2010

Item 32 - Part XIB (heading)

Item 33 - Section 151AA

Item 34 - Division 7 of Part XIB (heading)

Item 35 - Section 151BW (heading)

Item 36 - Section 151BX (heading)

Item 37 - Subsections 151BX(3) and (4)

Item 38 - Section 151BZ (heading)

Item 39 - Subsection 151BZ(1)

Items 32 to 39 of Schedule 3 to the Bill would make minor consequential amendments to Part XIB of the Competition Act as a consequence of the repeal of Divisions 4 and 5 (regarding tariff filing directions) of that Part proposed by item 2 of Schedule 3 to the Bill, as described above. The consequential amendments would remove references to the repealed Divisions from a series of headings and other provisions located in Divisions 1 and 7 of Part XIB.



 

Schedule 4—Technical amendments

Schedule 4 to the Bill would make minor technical amendments to provisions in the legislation governing the national broadcasters. These amendments would provide consistency between the Australian Broadcasting Corporation Act 1983 (ABC Act), the Broadcasting Services Act 1992 (BSA) and Special Broadcasting Service Act 1991 (SBS Act), repeal redundant provisions in the ABC Act, the BSA and SBS Act and better reflect SBS activities that are provided in the converging digital environment.

 

Australian Broadcasting Corporation Act 1983

Item 1 - Subsection 79A(5)

Item 1 of Schedule 4 to the Bill would repeal redundant definitions in subsection 79A(5) of the ABC Act. These are the definitions of ‘election’, ‘election period’, ‘Parliament’ and ‘referendum’, which are defined for the purpose of section 79A but are not used by that section. Corresponding amendments are proposed to the equivalent provision in the SBS Act, section 70A, by item 13 of Schedule 4 to the Bill, as described below.

Broadcasting Services Act 1992

Item 2 - Subparagraph 212(1)(b)(ii)

Item 3 - Paragraph 212(1)(c)

Item 4 - Paragraph 212(3)(d)

Item 5 - Paragraph 212(3)(e)

Item 3 of Schedule 4 to the Bill would repeal paragraph 212(1)(c) of the BSA to remove a spent reference to services that do no more than transmit program material supplied by NITV. Items 2, 4 and 5 of Schedule 4 to the Bill are minor technical amendments to paragraphs 212(1)(b), (d) and (3), respectively, consequential to item 3.

The retransmission scheme under section 212 of the BSA allows self-help providers, such as local councils and community groups, to improve or extend free-to-air radio and television reception to certain communities. Under that section, services that do no more than retransmit programs previously transmitted by a national broadcasting service, a commercial broadcasting licensee, a community broadcasting licensee, or a service that transmits program material supplied by NITV are not subject to the regulatory regime established by the BSA.

In 2012, the SBS assumed the television program production and supply activities previously undertaken by NITV. NITV no longer supplies television programs.

Special Broadcasting Service Act 1991

Item 6 - Section 3

Item 6 of Schedule 4 to the Bill would insert a definition of ‘broadcasting service’ into section 3 of the SBS Act. This means that broadcasting service as used in the SBS Act would have the same meaning as provided for by subsection 6(1) of the BSA. The insertion of this definition would ensure consistency between the BSA, the SBS Act and the ABC Act.

In several places throughout the SBS Act, consequential amendments are proposed to replace various references to radio and television services with references to broadcasting services.

Item 7 - Paragraph 3A(1)(c)

Item 8 - Subsection 6(1)

Items 7 and 8 of Schedule 4 to the Bill would amend paragraph 3A(1)(c) and subsection 6(1) of the SBS Act respectively to replace references to radio and television services with references to broadcasting services. These amendments are consequential to the amendment to be made by item 6 of Schedule 4 to the Bill, as described above.

Item 9 - Paragraph 6(2)(g)

Item 10 - Paragraph 6(2)(g)

Item 11 - Paragraph 6(2)(h)

Item 12 - Paragraph 6(2)(h)

Items 9 to 12 of Schedule 4 to the Bill would amend subsection 6(2) of the SBS Act. These amendments serve two purposes. Firstly, they would replace references to radio and television services with references to broadcasting services. These amendments are consequential to the amendment proposed by item 6 of Schedule 4 to the Bill, as described above. Secondly, they would add a reference to digital media services, as defined under section 3A of the SBS Act, reflecting the contribution of the SBS to the overall diversity and extending the range of Australian digital media services.

Item 13 - Paragraph 44(1)(b)

Item 14 - Paragraph 44(1)(b)

Item 15 - Paragraph 44(1)(c)

Item 16 - Paragraph 44(1)(d)

Items 13 to 16 of Schedule 4 to the Bill would amend subsection 44(1) of the SBS Act, to insert references to communication in addition to transmission in the specific powers and functions of the SBS. These amendments reflect the different media by which digital media services are provided by the SBS, compared with broadcasting services.

Item 17 - Subsection 70A(5)

Item 17 of Schedule 4 to the Bill would repeal redundant definitions in section 70A of the SBS Act. These are the definitions of ‘election’, ‘election period’, ‘Parliament’ and ‘referendum’ which are defined for the purpose of section 70A, but are not used by that section. Corresponding amendments are proposed to the equivalent provision in section 79A of the ABC Act, by item 1 of Schedule 4 to the Bill, as described above.

Item 18 - Paragraph 70C(1)(b)

Item 18 of Schedule 4 to the Bill would amend paragraph 70C(1)(b) of the SBS Act to replace a reference to radio and television services with a references to broadcasting services. This amendment is consequential to the amendment proposed by item 6 of Schedule 4 to the Bill, as described above.

 

 



 

Schedule 5 - Spent and redundant legislation

Schedule 5 to the Bill would repeal Communications portfolio legislation which is spent or otherwise unnecessary.

Part 1 - Repeals

AUSSAT Repeal Act 1991

Item 1 - Repeal of Acts

Item 1 of Schedule 5 to the Bill would repeal a range of spent and redundant legislation.

It would repeal the AUSSAT Repeal Act 1991 (AUSSAT Repeal Act), which set out the arrangements for the sale of Australia’s national satellite system, AUSSAT, to Optus in 1991, and allocated an appropriation of up to $800 million from the Consolidated Revenue Fund to pay out AUSSAT’s then existing obligations.

The AUSSAT Repeal Act has no ongoing utility and can be repealed, subject to preserving the operation of a provision in the Act preventing AUSSAT’s previous tax losses from being used as an income tax deduction after the sale (section 8 of the AUSSAT Repeal Act refers). This provision is to be preserved through amendments to the Tel Act proposed by items 5 and 6 of Schedule 5 to the Bill, as described below.

Item 1 would also repeal other spent amending or repealing legislation, as listed below. The amendments and repeals effected by these Acts have taken effect, and these Acts are no longer required:

-           Australian Broadcasting Corporation Amendment Act 1993

-           Australian Postal Corporation Amendment Act 1994

-           Broadcasting Amendment Act 1987

-           Broadcasting Amendment Act 1990

-           Broadcasting Amendment Act 1991

-           Broadcasting Amendment Act (No. 2) 1987

-           Broadcasting Amendment Act (No. 2) 1990

-           Broadcasting Amendment Act (No. 2) 1991

-           Broadcasting Amendment Act (No. 3) 1987

-           Broadcasting Amendment Act (No. 4) 1987

-           Broadcasting and Television Amendment Act 1980

-           Broadcasting and Television Amendment Act 1982

-           Broadcasting and Television Amendment Act 1984

-           Broadcasting and Television Amendment Act 1985

-           Broadcasting and Television Legislation Amendment Act 1985

-           Broadcasting and Television Legislation Amendment Act 1986

-           Broadcasting (Foreign Ownership) Amendment Act 1990

-           Broadcasting (Ownership and Control) Act 1987

-           Broadcasting (Ownership and Control) Act 1988

-           Broadcasting Services Amendment Act 1997

-           Broadcasting Services Legislation Amendment Act 1997

-           Broadcasting Stations Licence Fees Act 1981

-           Broadcasting Stations Licence Fees Amendment Act 1983

-           Broadcasting Stations Licence Fees Amendment Act 1985

-           National Transmission Network Sale (Consequential Amendments) Act 1998

-           NRS Levy Imposition Amendment Act 1999

-           Radiocommunications (Miscellaneous Provisions) Act 1982

-           Radiocommunications (Receiver Licence Tax) Amendment Act 1992

-           Radiocommunications (Receiver Licence Tax) Amendment Act 1997

-           Radiocommunications (Test Permit Tax) Amendment Act 1992

-           Radiocommunications (Transmitter Licence Tax) Amendment Act 1992

-           Radiocommunications (Transmitter Licence Tax) Amendment Act 1997

-           Radio Licence Fees Amendment Act 1987

-           Radio Licence Fees Amendment Act 1991

-           Radio Licence Fees Amendment Act (No. 2) 1987

-           Satellite Communications Amendment Act 1988

-           Telecommunications Amendment Act 1994

-           Telecommunications Amendment Act 1998

-           Telecommunications (Carrier Licence Fees) Amendment Act 1995

-           Telecommunications (Carrier Licence Fees) Amendment Act 1996

-           Telecommunications (Carrier Licence Fees) Termination Act 1997

-           Telecommunications Laws Amendment (Universal Service Cap) Act 1999

-           Telecommunications Legislation Amendment Act 1997

-           Telecommunications (Universal Service Levy) Amendment Act 1999

-           Television Broadcasting Services (Digital Conversion) Act 1998

-           Television Licence Fees Amendment Act 1987

-           Television Licence Fees Amendment Act (No. 2) 1987

-           Television Licence Fees Amendment Act (No. 3) 1987

-           Television Stations Licence Fees Act 1981

-           Television Stations Licence Fees Amendment Act 1983

-           Television Stations Licence Fees Amendment Act 1985

Item 1 of Schedule 5 to the Bill would also repeal the Telstra (Transition to Full Private Ownership) Act 2005 (Telstra Transition Act). The Telstra Transition Act amended the Telstra Corporation Act 1991 (Telstra Act) to remove the requirement that the Commonwealth retain a minimum 50.1 per cent equity in Telstra. It also made consequential and transitional amendments to various legislation to reflect the Commonwealth’s reduced equity. These events have all since occurred, meaning the Telstra Transition Act has no ongoing utility and is no longer required.

The repeal of the Telstra Transition Act necessitates two consequential amendments to the Telstra Act, which would be made by items 7 and 8 of Schedule 5 to the Bill, as described below.

Part 2 - Other amendments

Competition and Consumer Act 2010

Item 2 - Sections 152ELB and 152EOA

Item 2 of Schedule 5 to the Bill would repeal sections 152ELB and 152EOA of the Competition Act.

Section 152ELB requires the ACCC, prior to making procedural rules by legislative instrument under section 152ELA, to publish a draft on the ACCC’s website, invite people to make submissions during a period of at least 30 days and consider any submissions received. This provision is considered unnecessary in light of the standard consultation requirements in section 17 of the Legislation Act 2003 , which require a rule maker, subject to certain exceptions, to be satisfied that appropriate and practicable consultation has been undertaken prior to making a legislative instrument.

Chapter 3 of the Legislation Act 2003 does not purport to prescribe in detail exactly how consultation should occur, it simply requires a rule-maker to be satisfied that all appropriate and reasonably practicable consultation has been undertaken. This means that consultation can be undertaken in a form appropriate to the circumstances. It enables both broad and targeted consultation as warranted, for example, by the nature of the matter concerned, the needs of stakeholders and the costs to the Government and stakeholders.

Part 2 of Chapter 3 of the Legislation Act 2003 sets out a tabling and disallowance regime to facilitate parliamentary scrutiny of legislative instruments (including the degree of consultation).

Section 152EOA requires the Minister to cause to be conducted a review of the operation of Part XIC of the Competition Act, other provisions of the Competition Act relating to Part XIC and particular provisions of the National Broadband Network Companies Act 2011 relating to the supply of eligible services. The review was completed as part of the independent cost-benefit analysis of broadband policy and review of regulatory arrangements. The report of the review was tabled in both Houses of Parliament on 16 July 2014 and accordingly the section is spent and no longer required.

National Transmission Network Sale Act 1998

Item 3 - Part 5

Item 4 - Sections 25 and 27

Item 3 of Schedule 5 to the Bill would repeal Part 5 of the National Transmission Network Sale Act 1998 (NTN Sale Act), and item 4 of Schedule 5 to the Bill would repeal sections 25 and 27 of that Act.

The NTN Sale Act facilitated the sale of the National Transmission Network (NTN) and set in place a regulatory framework for the provision of national broadcasting and other transmission services following the sale.

Part 5 of the NTN Sale Act was a transitional arrangement which provided for transmitter licences held by the Commonwealth to be transferred to the ABC and SBS following the sale. Section 25 specifies that section 50 of the Competition Act applies to sale of shares in a National Transmission Company and section 27 ensured the transfer of Commonwealth records following the sale was managed in accordance in accordance with the Archives Act 1983 . None of these provisions have ongoing utility.

Telecommunications Act 1997

Item 5 - Section 582

Item 6 - After section 593

Item 6 of Schedule 5 to the Bill would insert a new section 593A into Part 35 of the Tel Act, consequential to the repeal of the AUSSAT Repeal Act under item 1 of Schedule 5 to the Bill, as described above.

The new section 593A would preserve the operation of section 8 of the AUSSAT Repeal Act, by continuing to prevent AUSSAT’s previous tax losses from being used as an income tax deduction after the sale of AUSSAT to Optus.

Item 5 of Schedule 5 to the Bill would amend the outline for Part 35 of the Tel Act to include an outline of the new subsection 593A to be inserted by item 6 of Schedule 5.

Telstra Corporation Act 1991

Item 7 - Section 3 (definition of designated day )

Item 7 of Schedule 5 to the Bill would amend the definition of ‘designated day’ in section 3 of the Telstra Act by replacing “the day declared under section 3 of the Telstra (Transition to Full Private Ownership) Act 2005 ” with “24 November 2006”.

Currently, ‘designated day’ is defined in the Telstra Act by reference to the Telstra (Transition to Full Private Ownership) Act 2005 - Designated Day Declaration 2006 (No. 1) (Declaration), made by the Minister under the Telstra Transition Act. The Declaration specifies that the designated day is 24 November 2006.

This amendment would remove the cross-reference from the Telstra Act to an instrument made under the Telstra Transition Act, consequential to the repeal of the latter Act to be made by item 1 of Schedule 5 to the Bill, as described above.

Item 8 - Paragraph 3B(1)(b)

Item 8 of Schedule 5 to the Bill would amend paragraph 3B(1)(b) to replace “the commencement of Part 1 of Schedule 1 to the Telstra (Transition to Full Private Ownership) Act 2005 ” with “23 September 2005”. This is the date upon which Part 1 of Schedule 1 to the Telstra Transition Act commenced.

This amendment removes the cross-reference from the Telstra Act to the Telstra Transition Act, consequential to the repeal of the latter Act to be made by item 1 of Schedule 5 to the Bill, as described above.



 

Schedule 6 - Numbering arrangements

Part 22 of the Tel Act provides for the regulation of the numbering of carriage services. The ACMA is currently required to make a plan for the numbering of carriage services in Australia and the use of numbers in connection with the supply of such services (the ‘numbering plan’). The numbering plan may set out rules about the allocation of numbers to CSPs and the use of numbers allocated to CSPs including rules about the issue of allocated numbers by CSPs to customers.

Numbers may be allocated to CSPs in accordance with the numbering plan or in accordance with an allocation system determined by the ACMA.

The numbering plan also specifies emergency service numbers.

Schedule 6 to the Bill would enact arrangements to allow the Minister to specify a person as the numbering scheme manager, for that person to manage the numbering scheme in accordance with the numbering scheme principles, and for the publication of rules and processes of the numbering scheme, including a plan for numbering of carriage services. If such a person is specified by the Minister, the requirement for the ACMA to make and administer the numbering plan would not apply. ‘Person’ includes a body corporate.

Schedule 6 provides a framework for a transition to industry-based management of numbering in response to proposals by the telecommunications industry. In particular, the industry representative body, the Communications Alliance, has proposed that numbering management be devolved to industry with potential benefits including faster implementation of new numbering ranges, more efficient allocation services and lower costs. Reduction in regulatory effort in the numbering area by the ACMA is expected to lead to savings for industry through lower industry charges. The management of other electronic addressing in Australia is already handled by industry, consistent with the arrangements under Division 3 of Part 22 of the Tel Act.

The transition to an industry managed numbering scheme would only occur once the Minister was satisfied (after consulting the ACMA and ACCC) that the proposed scheme manager would administer a numbering scheme in accordance with the key principles set out in proposed section 454C.

The numbering scheme principles are designed to ensure key public policy objectives continue to be met within an industry-based management scheme.

The principles presume that numbering management takes place in an open and pro-competitive telecommunications environment and seek to support and reinforce competition in this context. Proposed paragraph 454C(2)(e) therefore makes explicit reference to ‘fair and transparent access to numbers for all carriage service providers and numbering arrangements must support competition in the supply of carriage services’. The principles further promote competition by providing for a well-planned, adequate and appropriate supply of numbers and by supporting number portability (or the right to retain the same number when changing service provider). By fostering competition and innovation, the arrangements will deliver positive outcomes for consumers.

The principles also cover other key consumer and public interest objectives such as supporting the emergency call service, supporting national security needs, supporting the collection of revenue from the use of numbering, and effective complaint handling. The principles would require the rules and processes for the scheme to be transparent and would ensure there is public consultation on any significant changes to the scheme.

Specific powers are provided for the Minister, the ACCC and the ACMA to provide directions to the numbering scheme manager, in the event that it is necessary for the effective functioning of the scheme. The Minister will be also be able to determine additional principles for the numbering scheme by legislative instrument.

The Minister would be able to revoke the appointment of a numbering scheme manager if the numbering scheme manager was not managing the numbering scheme in accordance with the principles, or if the Minister was satisfied that a revocation was in the best interests of the telecommunications industry, users of carriage services, the general community or national security. In the event that the Minister does decide that the appointment of a numbering scheme manager should be revoked, the ACMA would be able to quickly put in place a replacement numbering plan .

In addition, the Minister would be able to direct the numbering scheme manager to amend the rules or change the processes of the scheme in a manner consistent with the principles. The ACMA and the ACCC would each have power to direct the scheme manager to do or refrain from doing a specified thing in relation to the management of the numbering scheme, in a manner consistent with the principles and rules and processes of the scheme. The ACMA and ACCC would also have the power to direct a person to comply with the numbering scheme if necessary.

The ACMA would remain responsible for the collection of numbering charges even if a numbering scheme manager was appointed. Any new industry-based management scheme would need to support the ACMA in exercising this function.

Part 1 - Amendment of the Telecommunications Act 1997

Telecommunications Act 1997

Item 1 - Section 5

Section 5 of the Tel Act provides a simplified outline of the legislation. Item 1 of Schedule 6 to the Bill would omit the phrase “ The ACMA may regulate numbering by means of a numbering plan ” from section 5 and substitute the phrase “ Numbering may be administered by a numbering scheme manager or by the ACMA ”. This would reflect the possibility that either the numbering scheme manager or the ACMA could administer numbering under the new arrangements.

Item 2 - Section 7 (subparagraph (b)(iv) of the definition of emergency call service )

Item 3 - Section 7 (subparagraph (b)(v) of the definition of emergency call service )

Item 4 - Section 7

Section 7 of the Tel Act sets out definitions of terms used in the legislation.

Item 2 of Schedule 6 to the Bill would repeal subparagraph (b)(iv) of the definition of ‘emergency call service’ in section 7 that refers to a service specified in the numbering plan and substitute proposed subparagraphs (iv) and (iva). These subparagraphs would respectively refer to the service specified by the ACMA in a legislative instrument for subparagraph (iv), if there is a numbering scheme manager, or specified in the numbering plan made by the ACMA if there is no numbering scheme manager.

These changes recognise the need for a new means of specifying the emergency call service number in the event of a transition to industry-based numbering management and there is no longer an ACMA numbering plan in force (the current means of specifying this number). Because of the fundamental importance of emergency call service numbering to the wider community, responsibility for such numbering will remain with the ACMA.

Item 3 of Schedule 6 to the Bill would make consequential amendments to subparagraph (b)(v) of the definition of ‘emergency call service’ to refer to proposed subparagraphs (iv) and (iva).

Item 4 of Schedule 6 to the Bill would insert in section 7 definitions for the expressions ‘numbering scheme’, ‘numbering scheme manager’ and ‘numbering scheme principles’. These concepts are fundamental to the proposed framework for industry-based number management. A ‘numbering scheme’ would be defined as the scheme for planning and managing the numbering of carriage services in Australia, the use of numbers in connection with the supply of such services and the specification, allocation, and issuing of numbers for that use. The terms ‘numbering scheme manager’ and ‘numbering scheme principles’ are defined by reference to proposed subsections 454A(2) and 454C(2) respectively, as described in item 10 of Schedule 6 below.

Item 5 - Subsection 285(2) (definition of public number )

Section 285 of the Tel Act sets out permitted uses and disclosures of information contained in an integrated public number database. An integrated public number database is an industry-wide database of all listed and unlisted public telephone numbers. Subsection 285(2) sets out definitions for section 285.

Item 5 of Schedule 6 to the Bill would make a technical consequential amendment to the definition of ‘public number’ in subsection 285(2) to omit the phrase “in the numbering plan as mentioned in subsection 455(3)” and substitute the phrase “for use in connection with the supply of carriage services to the public in Australia (within the meaning of subsection 456(2))”. The amendment would broaden the scope of the definition of ‘public number’ so that it would cover both a number specified in the numbering plan and a number specified under the numbering scheme.

Item 6 - Subparagraph 286(c)(v)

Item 7 - Subparagraph 286(c)(vi)

Section 286 of the Tel Act provides an exception to primary disclosure or use offences in Division 2 of Part 13 for disclosure of information or a document in the context of a call to an emergency service number.

Item 6 of Schedule 6 to the Bill would make a technical consequential amendment to paragraph 286(c) to replace a reference to a number specified in the numbering plan with references to a service specified by the ACMA in a legislative instrument, if there is a numbering scheme manager and a number specified in the numbering plan made by the ACMA, if there is no numbering scheme manager. Item 7 of Schedule 6 to the Bill would make consequential amendments to subparagraph 286(c)(vi).

Item 8 - Section 454

Item 9 - Section 454

Items 8 and 9 of Schedule 6 to the Bill would amend the simplified outline of Part 22 of the Tel Act.

The amendments to the outline of Part 22 would reflect that the numbering of carriage services in Australia and the use of numbers in connection with the supply of such services, may be managed by a numbering scheme manager determined by the Minister or administered by the ACMA under a numbering plan. The amendments to the outline would also reflect that emergency service numbers will be specified by the ACMA. If a numbering scheme manager has been appointed, emergency service numbers will be specified by the ACMA in a legislative instrument. If the ACMA makes a numbering plan, emergency service numbers will be specified in that plan.

Item 10 - Before Subdivision A of Division 2 of Part 22

Item 10 of Schedule 6 to the Bill would insert into Division 2 of Part 22 a new Subdivision AA— Management by numbering scheme manager . This would contain new sections 454A to 454H.

Under proposed new section 454A, the Minister may, by legislative instrument, determine that a specified person is to manage the numbering scheme (see item 4 of Schedule 6 above). The person would be the numbering scheme manager.

The Minister would not be able to determine a person as the numbering scheme manager unless satisfied that the person will manage the numbering scheme in accordance with the numbering scheme principles. Apart from this requirement, proposed n ew section 454A is intended to give the Minister a wide discretion in selecting a person as the numbering scheme manager.

However, it is envisaged that the person would put forward a well-developed scheme, on which it had consulted publicly, and for which there was strong stakeholder support, before seeking to be determined by the Minister to be the numbering scheme manager. Given the importance of the role, the Government would require a high level of confidence that the person could perform the role effectively and efficiently on an on-going basis before confirming the role. As such, it is envisaged the Minister would have regard to the person’s capabilities and competencies, including issues such as whether the person was a body corporate, its financial standing and ongoing funding, its directors (if relevant) and staff, its proposed mode of operation (including mechanisms to ensure its independence and impartiality), its demonstrated experience and the degree of stakeholder support for it and the model it has put forward. It is envisaged that the scheme would be fully documented to enable the Minister to consider it.

Before determining a person as the numbering scheme manager, the Minister would be required to consult with the ACMA and the ACCC.

Any industry-based numbering management scheme would be fully funded by industry, however, there are also expected to be countervailing savings for industry from the reduction in ACMA involvement in numbering activities.

In order to avoid ambiguity, proposed new section 454B would specify that determination of a person as the numbering scheme manager does not confer any property rights in numbers used in connection with the supply of carriage services in Australia.

Proposed new section 454C would establish numbering scheme principles. Proposed new subsection 454C(1) would state that the numbering scheme manager must manage the numbering scheme in accordance with the numbering scheme principles. Proposed new section 454C(2) would set out those principles, which cover a range of matters with respect to ensuring fair and transparent access to numbers, protecting the interests of users of carriage services, supporting the use of emergency call services, meeting the requirements of law enforcement and national security agencies and other issues.

Proposed paragraph 454C(2)(e) makes explicit reference to ‘fair and transparent access to numbers for all carriage service providers and numbering arrangements must support competition in the supply of carriage services’. This recognises that numbering management takes place in an open and pro-competitive telecommunications environment and should seek to support and reinforce competition in this context.

Proposed new paragraph 454C(2)(n) would require the numbering scheme manager to ensure effective complaints processes are available to both the telecommunications industry and users of carriage services. This principle would ensure that avenues are in place through which industry and consumers can have their complaints about actions which may affect their rights and obligations heard and addressed.

The principles would also include that the numbering scheme manager must undertake public consultation before making any significant change to the numbering scheme. The Minister would also be empowered under paragraph 454C(2)(q) to make a legislative instrument determining additional principles.

Furthermore, the numbering scheme principles require the numbering scheme manager to adhere to the rules and processes of the numbering scheme (proposed new paragraph 454C(2)(l)).

The principles are fundamental to a successful transition to industry-based management of numbering in that they set out public policy objectives that an industry-based management scheme must continue to deliver and would underpin the ongoing operation of such a scheme. The principles are therefore integral to the Minister determining a numbering scheme manager (proposed subsection 454A(3)) and the numbering scheme manager’s ongoing operation of the scheme (proposed subsection 454C(1)).

Proposed new section 454D would cover revocation of the determination of a person as the numbering scheme manager in the circumstances set out in proposed subsection 454D(1). This could be used, for example, where the Minister is not satisfied the numbering scheme manager is managing the numbering scheme in accordance with the numbering scheme principles in proposed new section 454C (e.g. by not making effective complaints processes available). The expectation is that a numbering scheme manager would need to continuously demonstrate that it is managing the numbering scheme in accordance with the numbering scheme principles and thereby meeting the needs of the industry and wider Australian community. This will be an important incentive for the numbering scheme manager performing the role in an exemplary manner. Before the Minister could revoke the determination of a person as the numbering scheme manager, the Minister would be required to consult the numbering scheme manager, the ACMA and the ACCC.

Proposed new section 454E would deal with directions to the numbering scheme manager. The numbering scheme manager would be required to comply with a direction under subsection 454E(7). Proposed subsection 454E(7) would be a civil penalty provision.

The Minister may, by legislative instrument, direct the numbering scheme manager to amend the rules or change the processes of the numbering scheme. The direction would be required to be consistent with the numbering scheme principles.

The ACMA or the ACCC may, by legislative instrument, direct the numbering scheme manager to do, or refrain from doing, a specified act or thing in relation to the management of the numbering scheme. For example, a direction could be given in the event the numbering scheme manager did not adhere to the rules and processes of the numbering scheme (including complaints handling processes) as would be required under the numbering scheme principle in proposed paragraph 454C(2)(l). The direction would be required to be consistent with the numbering scheme principles and the rules and processes of the numbering scheme. Before the ACMA gives a direction under this section, it would be required to consult with the Minister, the ACCC and the numbering scheme manager. Before the ACCC gives a direction under this section, it would be required to consult with the Minister, the ACMA and the numbering scheme manager. Again, these provisions will provide a strong incentive for the numbering scheme manager to operate in an exemplary manner and they provide a means of taking corrective action should this be required.

Proposed new section 454F would enable the ACMA to obtain from the numbering scheme manager certain information relating to numbers for carriage services. The ACMA may request information for the purposes specified in subsection 454F(2), being to identify persons liable for a charge under the Telecommunications (Numbering Charges) Act 199 7, work out the amount of that charge and otherwise administer charges under that Act. This will enable the ACMA to obtain the information it needs in order to collect the numbering charges (for which it will r emain responsible even if a numbering scheme manager was appointed).  Proposed subsection 454F(3) allows the ACMA to specify the form in which the information is required. The numbering scheme manager must comply with a request from the ACMA under section 454F (454F(4)) and failure to comply may attract civil penalties (454F(5)).

Proposed new section 454G would enable the ACMA or the ACCC, by written notice to a person who is a CSP, carrier, or a person of a kind determined by the Minister in a legislative instrument, to direct the person to comply with a rule or process published by the numbering scheme manager. Under proposed subsection 454G(2), the person would be required to comply with the direction. Proposed subsection 454G(2) would be a civil penalty provision. Subsection 454G(4) provides that a notice given to a person in accordance with section 454G would not be a legislative instrument (within the meaning of the Legislation Act 2003 ). This provision is merely declaratory and is included to assist readers. It is not an exemption from the Legislation Act 2003 .

The direction powers of the ACMA and the ACCC are intended to provide specific mechanisms to protect the achievement of public policy objectives, particularly in the transition to a new industry-based management scheme. It is expected that the ACMA and ACCC would consult the affected parties, and other stakeholders, in advance of exercising the powers.

Proposed new section 454H would clarify that documents containing the rules and processes of the numbering scheme, including a plan for numbering of carriage services, are not legislative instruments. This provision, which is included to assist readers, is also declaratory of the law and is not intended to provide an exemption from the Legislation Act 2003 .

Item 11 - Subdivision A of Division 2 of Part 22 (heading)

Item 11 of Schedule 6 to the Bill would repeal the heading to Subdivision A of Division 2 of Part 22 and substitute the heading Subdivision A—Management by the ACMA .

Item 12 - Before section 455

Item 12 of Schedule 6 to the Bill would insert new section 455A before section 455. Proposed section 455A would specify that Subdivision A of Division 2 of Part 22 does not apply if there is a numbering scheme manager. That subdivision sets out various provisions in relation to the numbering plan that will not be necessary in the event that numbering is administered by a numbering scheme manager determined by the Minister.

Item 13 - After section 459

Item 13 of Schedule 6 to the Bill would insert a new section 459A into Subdivision A of Division 2 of Part 22 of the Tel Act. Proposed section 459A would enable the ACMA to delegate, by writing, any or all of the powers conferred on the ACMA by the numbering plan to a body corporate. Proposed section 459A replicates existing section 467, which would be repealed by item 23 of Schedule 6 to the Bill, as described below. Enacting this section in Subdivision A makes it subject to proposed section 455A to be inserted by item 12 of Schedule 6 to the Bill, such that it would not apply if there is a numbering scheme manager.

Item 14 - After section 461

Item 14 of Schedule 6 to the Bill would insert a new section 461A into Subdivision A of Division 2 of Part 22 of the Tel Act. This item would provide that the ACMA is not required to comply with consultation requirements in section 460 and subsection 461(1) of the Tel Act where the ACMA is making or amending a numbering plan and needs to act urgently to ensure that numbering of carriage services and the use of numbers are properly managed in the absence of a numbering scheme manager.  It is intended that the ACMA would be able to act quickly to have an amended or new numbering plan in place in a circumstance where the Minister revokes the determination of a person as a numbering scheme manager.

It is intended that the new or amended numbering plan would have effect for 12 months after it came into operation (proposed subsection 461A(3) refers). The ACMA would need to undertake consultation at a later point, when time permitted, for the numbering plan to have ongoing effect.

It is intended that the ACMA would consult with the ACCC to the best of its ability in respect of a new or amended numbering plan prepared in the absence of a numbering scheme manager, but new subsection 461A(2) has the effect of not invalidating the numbering plan where the ACMA fails to do so on the basis that it is not practicable.

Proposed subsection 461A(4) makes clear, for the avoidance of doubt, that the ACMA is not prevented from repealing a plan made or varied by the ACMA in the absence of a numbering scheme manager and making another plan after complying with the consultation requirements in section 460 and subsection 461(1) of the Tel Act.

Item 15 - Before section 463

Item 15 of Schedule 6 to the Bill would insert a new section 463A into Subdivision B of Division 2 of Part 22 of the Tel Act. This Subdivision deals with the allocation system for numbers, and proposed subsection 463A(1) would specify that if there is a numbering scheme manager, the allocation system determined by the ACMA under this Subdivision may be prepared by the numbering scheme manager. Proposed subsection 463A(2) would specify that the ACMA must not determine an allocation system that does not meet the ACMA’s requirements (including in relation to the NCA). Consistent with the consultation requirements contained in the Legislation Act 2003 , as the determination of the allocation system would be a legislative instrument (subsection 463(1) refers), the ACMA would also be required to ensure affected parties, including the numbering scheme manager, are consulted appropriately before making the determination.

As allocation systems can be used to set charges for the purposes of the NCA , it is important that the ACMA can retain control of them but, consistent with a move to industry-based management of numbering, it is important that industry be able to input into such systems, and, if appropriate, prepare them for use by the ACMA, if the ACMA agrees with them. It would also open to the ACMA to delegate any powers conferred on it by an allocation system to the numbering scheme manager (see item 16 of Schedule 6, as described below).

Item 16 - At the end of section 463

Item 16 of Schedule 6 to the Bill would insert a new subsection 463(8), providing for the ACMA to delegate powers conferred on it by an allocation system to the numbering scheme manager or another person. Such delegation may be appropriate where the function can be conducted effectively and efficiently by the numbering scheme manager. For example, because the numbering scheme manager would have day-to-day responsibility for numbering matters, it may be better placed to administer an allocation system under delegation from the ACMA, particularly where it did not involve the levy of significant charges.

Item 17 - After paragraph 465(1)(a)

Item 18 - Paragraph 465(2)(a)

Section 465 of the Tel Act deals with the register of allocated numbers.

Item 17 of Schedule 6 to the Bill would insert new paragraph 465(1)(aa) that would specify that if there is a numbering scheme manager, the numbering scheme manager is the designated authority for the purposes of section 465. If there is no numbering scheme manager, the designated authority would be either the ACMA or if the ACMA enters into an arrangement with another person under which the other person agrees to perform the functions conferred on the designated authority by this section—that other person.

Item 18 of Schedule 6 to the Bill would amend paragraph 465(2)(a) to omit reference to the authority of the numbering plan.

Item 19 - Paragraph 466(1)(d)

Item 20 - Subsection 466(2)

Item 21 - Subsections 466(3) and (4)

Item 22 - Subsection 466(5)

Item 23 - Subsection 466(6)

Section 466 of the Tel Act deals with emergency service numbers in the numbering plan.

Items 19 to 23 of Schedule 6 to the Bill would make consequential amendments to subsection 466 so that it would operate with respect to a service specified by the ACMA by legislative instrument, if there is a numbering scheme manager, or otherwise specified in the numbering plan made by the ACMA.

Item 24 - Section 467

Item 24 of Schedule 6 to the Bill would repeal section 467 of the Tel Act, consequential to the insertion of a new section 459A into Subdivision A of Division 2 of Part 22 to be made by item 13 of Schedule 6 to the Bill, as described above.

Item 25 - Subsection 468(10)

Item 26 - At the end of subsection 468(10)

Section 468 of the Tel Act deals with the collection of numbering charges, and subsection 468(10) provides for the withdrawal of a number for non-payment of the annual charge. Items 25 and 26 of Schedule 6 to the Bill would make consequential amendments to insert references to the numbering scheme manager and the numbering scheme in this subsection, so that the numbering scheme manager would be empowered to withdraw a number for non-payment of the annual charge. This is to ensure there are effective mechanisms to withdraw numbers, if required, under a numbering scheme.

Item 27 - Subsection 472(7) (definition of public number )

Item 28 - Subclause 10(3) of Schedule 2 (definition of public number )

Item 29 - Subclause 11(3) of Schedule 2 (definition of public number )

Items 27 to 29 of Schedule 6 to the Bill would make consequential amendments to repeal existing definitions of public number in the Tel Act in subsection 472(7), subclause 10(3) of Schedule 2, and subclause 11(3) of Schedule 2, and substitute a definition that “public number means a number specified for use in connection with the supply of carriage services to the public in Australia (within the meaning of subsection 456(2))”. The proposed definition would cover both a number specified in the numbering plan and a number specified under the numbering scheme, similar to the proposed definition in item 5 of Schedule 6 to the Bill.

Part 2 - Amendments of other Acts

Do Not Call Register Act 2006

Item 30 - Section 4 (definition of Australian number )

Item 30 of Schedule 6 to the Bill would repeal and substitute a new definition of ‘Australian number’ in the Do Not Call Register Act 2006 to reflect the potential appointment of a numbering scheme manager to manage telephone numbering resources under the proposed amendments to Part 22 of the Tel Act. The new definition would refer to a number that is for use in connection with the supply of carriage services to the public in Australia, and specified in either: the numbering scheme referred to in section 454A of the Tel Act (as managed by the numbering scheme manager where one is determined by the Minister); or the numbering plan referred to in section 454 (as administered by the ACMA where there is no numbering scheme manager).

Telecommunications (Consumer Protection and Service Standards) Act 1999

Item 31 - Subsection 147(11) (paragraph (d) of the definition of emergency service organisation )

Item 32 - Subsection 147(11) (paragraph (e) of the definition of emergency service organisation )

Item 31 of Schedule 6 to the Bill would repeal paragraph (d) of the definition of the expression ‘emergency service organisation’ in subsection 147(11) of the TCPSS Act and substitute new paragraphs (d) and (da). These new paragraphs include in the definition references to the rules and processes published by the numbering scheme manager, if there is a numbering scheme manager, or the numbering plan, if there is no numbering scheme manager. Item 32 of Schedule 6 would make a consequential amendment to paragraph (e) of that definition to reflect the new subparagraphs (d) and (da).

Telecommunications (Numbering Charges) Amendment Act 2016

Item 33 - Subsection 2(1) (table item 1, column 2, paragraph (b))

Item 33 of Schedule 6 to the Bill would amend the commencement provision in subsection 2(1) of the T elecommunications (Numbering Charges) Amendment Act 2016 . Item 33 would replace the existing reference to the Communications Legislation Amendment (Deregulation and Other Measures) Act 2016 in that section with a reference to the Communications Legislation Amendment (Deregulation and Other Measures) Act 2017 .  This technical change reflects the fact that the Communications Legislation Amendment (Deregulation and Other Measures) Bill 2016 lapsed upon the prorogation of Parliament prior to the 2016 federal election. It is intended to ensure that the commencement of the T elecommunications (Numbering Charges) Amendment Act 2016 is linked to (and contingent upon) the commencement of the Communications Legislation Amendment (Deregulation and Other Measures) Act 2017 .

Part 3 - Transitional provisions

Item 34 - Delegations by ACMA

Item 34 of Schedule 6 to the Bill would specify transitional provisions relating to delegations by the ACMA.

These transitional provisions would preserve the continuity of delegations made by the ACMA under subsection 467(1) or 467(1A)(a) of the Tel Act that were in force before the commencement of Schedule 6 to the Bill, so that after the commencement of Schedule 6, those delegations will have effect as if they were made under subsection 459A(1) or 459A(2)(a) respectively.



 

Schedule 7 - Publication requirements

Schedule 7 would amend the BSA to modernise two statutory publication requirements. This would allow the ACMA to notify stakeholders of certain matters via its website and other readily accessible forms, providing the ACMA with increased flexibility to choose a method of publication that is most appropriate to reach the target audience.

Part 1 - Amendments

Broadcasting Services Act 1992

Item 1 - Section 127

Item 2 - Section 127

Item 3 - Paragraph 127(b)

Item 4 - At the end of section 127

Items 1 to 4 of Schedule 7 to the Bill would amend section 127 of the BSA. Currently, section 127 requires the ACMA to publish a notice in the Commonwealth Gazette when determining, varying or revoking a program standard made under Part 9.

These amendments would provide that the ACMA must instead publish a notice both on the ACMA’s website and in one or more forms that are readily accessible to the public (such as in a newspaper or another website). Item 3 has the effect that the notice must state where copies of the standard (or variation/revocation) may be accessed, rather than where they may be purchased. Notices under section 127 are intended to alert stakeholders to regulatory change, and the amendments would provide the ACMA with increased flexibility to choose a method of publication that is most appropriate to reach the target audience.

Item 5 - Clause 33 of Schedule 6

Item 6 - Clause 33 of Schedule 6

Item 7 - Paragraph 33(b) of Schedule 6

Item 8 - At the end of clause 33 of Schedule 6

Items 5 to 8 of Schedule 7 to the Bill would amend clause 33 of Schedule 6 of the BSA. Currently, clause 33 requires the ACMA to publish a notice in the Commonwealth Gazette when determining, varying or revoking a standard made under clause 31, which relate to datacasting. Items 5 to 8 provide that the ACMA must instead publish a notice both on the ACMA’s website and in one or more forms that are readily accessible to the public (such as in a newspaper or another website). Notices under clause 33 are intended to alert stakeholders to regulatory change. The amendments would provide the ACMA with increased flexibility to choose a method of publication that is most appropriate to reach the target audience.

Part 2 - Application provisions

Broadcasting Services Act 1992

Item 9 - Application of amendments - section 127 of the Broadcasting Services Act 1992

Item 10 - Application of amendments - clause 33 of Schedule 6 to the Broadcasting Services Act 1992

Items 9 and 10 of Schedule 7 to the Bill ensure that the amendments to section 127 and clause 33 of Schedule 6 to the BSA, made by items 1 to 8 of Schedule 7 above, do not apply in relation to a determination, variation or revocation about which a notice was published in the Commonwealth Gazette prior to the commencement of item 9 or 10, as applicable.



 

Schedule 8 - Installation of optical fibre lines

Telecommunications Act 1997

Item 1 - Section 372A

Item 2 - Section 372A

Item 3 - Subsections 372E(3), 372F(3), 372G(3) and (5) and 372H(3)

Item 4 - Subdivision C of Division 3 of Part 20A

Items 1 to 4 of Schedule 8 to the Bill would make amendments to Part 20A of the Tel Act to repeal Subdivision C of Division 3 of the Part, consisting entirely of sections 372J and 372JA, and to make consequential amendments to sections 372A, 372E, 372F, 372G and 372H.

Section 372J currently allows NBN Co to issue a statement that it is not installing fibre in a new real estate development, and section 372JA requires NBN Co to maintain a public register of such statements. The effect of the statement is that the requirement to install fibre-ready facilities under Part 20A of the Tel Act does not apply to the relevant development.

The provisions were intended to provide a mechanism by which constitutional corporations that are developers could seek to be excused from the default obligation to provide fibre-ready facilities, such as pit and pipe, in areas where NBN Co would be providing services using fixed wireless or satellite technology and where NBN Co would not be using fixed lines. In such circumstances, it was envisaged that the installation of pit and pipe would be unnecessary as there would be little likelihood that they would be used by NBN Co.

However, the ability for NBN Co to make such statements failed to recognise that other carriers may want to provide fixed line infrastructure in such areas. In particular, Telstra has obligations as the universal service provider to provide voice services in parts of Australia that are outside NBN Co’s fixed line footprint and it may need to install cabling to fulfil this obligation. Telstra may wish to use pit and pipe to do this. In addition, other competitive providers could be contracted to service developments in such areas (e.g. a mining community) with fixed-line infrastructure and the provider may wish to use pit and pipe to deliver the infrastructure. While the issue by NBN Co of a statement under section 372J would not preclude Telstra or a competitive carrier requiring pit and pipe as a contractual matter, it could lead a developer to believe that it had been exempted by virtue of NBN Co’s statement, leading to confusion for the developer and carriers, and potential delays, costs and inconvenience in providing services where pit and pipe is, in fact, required.

As outlined above, the existing provisions effectively give NBN Co, as an industry player, power to make decisions of a quasi-regulatory nature that could affect other providers in the market. NBN Co has seldom exercised this function. The role also imposes on NBN Co the cost of exercising this quasi-regulatory function, and maintaining a register. For these reasons, it is no longer considered appropriate for NBN Co to exercise these functions.

Item 4 of Schedule 8 to the Bill would therefore repeal sections 372J and 372JA. Items 1, 2 and 3 of Schedule 8 to the Bill would make consequential amendments to other provisions in Part 20A of the Tel Act. Items 1 and 2 would make amendments to the simplified outline for Part 20A in section 372A to remove references to NBN Co having issued a statement that it would not be installing fibre in a new real estate development. Item 3 would repeal subsections 372E(3), 372F(3), 372G(3) and 372H(3), as these provisions would be redundant as a consequence of the proposed repeal of section 372J.