CHAIR —I welcome the representatives from the Australian Communications and Media Authority and from the Department of Communications, Information Technology and the Arts. I remind members of the committee that the Senate has resolved that departmental officers shall not be asked to give opinions on matters of policy and shall be given reasonable opportunity to refer questions to superior officers or to a minister. This resolution prohibits only asking questions on opinions on matters of policy and does not preclude questions asking for explanations of policies or factual questions about when and how policies were adopted. Do you wish to make any kind of opening statement, ACMA or DCITA?

Mr Loney —No.

CHAIR —We will hand over to Senator Conroy and try and get your views on some of the issues which you raised.

Senator CONROY —Did you just invite them to respond?

CHAIR —I did. I invited you to ask questions.

Senator CONROY —You didn’t want to respond—

CHAIR —They did not want to make an opening statement.

Senator CONROY —Not respond to some of the issues that were raised.

CHAIR —I did not actually put that to them. Did you want to respond to the issues that were raised in that discussion with Free TV or would you rather just respond to questions from the senators?

Dr Pelling —I think we would be quite happy just responding to questions because I am sure that senators will raise the issues that Free TV has raised.

Senator CONROY —Free TV indicated that government policy was for there to be no interference between channel B and free TV; is that correct as far as you are aware? Is that the stated policy position?

Dr Pelling —I think it is important an issue which was dealt with by ACMA through its planning processes and fundamentally my colleagues at ACMA I am sure will be prepared to explain the detail of the interference management process, but fundamentally as part of the planning of the frequencies for these different services involves a very careful management process for interference matters.

Senator CONROY —I thought Free TV were fairly clear and I am trying to make sure there is not a misunderstanding. Is government policy as described by Free TV that channel B will not interfere?

Dr Pelling —If you are talking about government policy in the sense of a specific announcement by the minister in that regard, I do not recall one, but certainly we would be concerned if there were significant interference issues and ACMA’s planning is designed specifically to avoid that.

Senator CONROY —ACMA, is that your understanding, that there is a commitment from the government in a policy sense that there is to be no interference between channel B and free TV transmissions?

Mr Cheah —Chris Cheah, I am one of the full-time members of ACMA. I think the way Dr Pelling just described the situation is our understanding as well.

Senator CONROY —There is no specific policy that you are aware of?

Mr Cheah —No specific ones, but nevertheless the entire planning process around planning for television channels is in fact fairly robust and is designed to prevent as far as possible interference happening and to put in place procedures for dealing with the problem should such problems arise. ACMA has been very clear in our consultative processes that we have been quite strongly committed to making sure that channel B will not actually interfere with any existing television services.

Senator CONROY —As far as possible, no interference?

Mr Cheah —As far as humanly possible, that is right.

Senator CONROY —Fortunately most of the interference is not caused by you, it is caused by machines, but I guess that does not count then—or does it count? You might wave your hand in front of the aerial and it might interfere, but we have got a commitment you are going to make sure that does not happen.

Mr Cheah —We have a robust process in place which is designed to minimise interference and then to deal with problems should they arise.

CHAIR —Does your robust process involve going up into higher UHF channels and frequencies? That seems to be the solution.

Dr Pelling —I think the channels that are available were identified by ACMA as part of the original digital television channel planning process.

Senator CONROY —Was that back in 1999?

Dr Pelling —It would have been around about then or slightly later.

Senator CONROY —That was identified originally for datacasting, not mobile TV? That was a point made by the previous witness.

Dr Pelling —Yes, they were identified for datacasting although I would emphasise that datacasting as a concept relates to types of content rather than technologies by which it is delivered.

Senator CONROY —But back then the point was made that it was not a mobile TV cellular system when you allocated those channels?

Dr Pelling —I think it is true to say that the planning was done on the basis that the most likely use as we understood it or as ACMA understood it at that time was for services which used the same technology as terrestrial broadcasting—television more recent development.

Senator CONROY —I accept that policy that changed. I accept that point. What is a reasonable level of interference with free-to-air?

Mr Loney —Mark Loney, Executive Manager, Pricing and Policy Branch, ACMA. Mr Cheah has mentioned I guess the robust planning processes that we have and I would include in that the consultative mechanisms which we have already gone through in relation to the allocation of channels A and B, and that includes two discussion papers where ACMA identified interference risks should channel B be used for the provision of mobile services and made it quite clear that we would not tolerate the deployment of mobile services—in fact, any services that crystallise that risk that made it eventuate. As a result of that, we have taken a number of steps to make sure that should the licensee—the owner of channel B—decide to use that channel for mobile services because—

Senator CONROY —Which channel is that?

Mr Loney —Channel B. Channel B does not have to be used for mobile services. Channel B can also be used for fixed in-home datacasting services and that will be a choice of whoever purchases that licence. As was mentioned earlier, we consulted about some amendments to the technical planning guidelines. As a result of that public consultation process the authority has actually made those changes to the technical planning guidelines and they will be publicly available shortly from the federal register. As to the whole intent of having identified that there is a potential risk, ACMA has made it quite clear all the way through the process so far that that risk will result in limitations or constraints on the channel B licensee, that channel B will not be able to be operated in such a way as to cause interference to existing free-to-air television services.

Senator CONROY —Can that be done in band four?

Mr Loney —At the moment we are going through a simulcasting period for television services, so broadcasters are transmitting in both analog and digital and that means that the broadcasting services bands—the UHF band and the VHF band—used for television are congested. There is a lot of spectrum being used to provide the simulcast services. The digital channel planning process that allowed the introduction of the digital services that we are currently enjoying resulted in the identification of two channels in each licence area across Australia that could be used for additional services. They are the two available channels.

Senator CONROY —But they were identified not for a channel B cellular system.

Mr Loney —There are a number of assumptions that are being made in the discussion and one of them is the assumption that the use of channel B for a mobile service will require the deployment of a cellular system. There was some mention before of MediaFLO, which is a technology developed—

Senator CONROY —I tried to ask that question.

Mr Loney —If you talk to QUALCOMM, they will say that MediaFLO is designed to operate in a manner that is entirely compatible with fixed in-home television broadcasting—that it is a high-power, high-site solution to mobile television broadcasting. They are deploying across the United States—I think Mr Bunch mentioned that they were trialling in the north-east of the United States. My understanding is they are now actually deploying to other markets across the US.

Senator CONROY —That is my understanding as well.

Mr Loney —It is still early days, but QUALCOMM are quite definite that a cellular deployment is not required to implement MediaFLO as a mobile television solution. Mobile television is an emerging field. There are a number of technologies; DVB-H has been mentioned as well which has been trialled in Australia. The issue for us in terms of planning, having identified that there are risks associated with the deployment of cellular technologies at a time when we have a number of competing technology standards, is to let the licensee make the decision about which is best suited to their service requirements and the planning arrangements that ACMA has in place which are intended to protect the reception of existing services by people in their homes with their existing antennas.

Dr Pelling —If I can just add to that in regard to the band five channels too. Firstly, in a market like Sydney for example, the channels, possibly with the exception of the ones right at the very top, are all used and so if you were to reallocate those channels for mobile you would have to relocate the broadcasting services that are already in them, if they are already in them. The second point—and Mr Loney might be able to correct me on this if things have changed, but my understanding from a few months ago was that the handset technology for mobile television reception was such as it precluded you being too close to GSM mobile spectrum, which is just above the top of the UHF spectrum. The reason for that is because the handsets are not just mobile TV handsets, they will be devices which include a range of technologies, one of which of course will be standard mobile phone technology. The chip sits in the design of the handset as such and if you put the frequencies for the mobile television service too close to the frequencies for the GSM service, then there is interference that occurs in the handset. That may be able to be overcome over time with improved technology.

Senator CONROY —I was going to come to the question of GSM colliding with mobile TV. If I could just stay for the moment in band four, so we will come to the band five issue and whether that is a solution that has been suggested. The previous witnesses were quite emphatic that none of these other mobile TV technologies could operate in band four where they have been identified at the moment. You say that is not right? They were quite emphatic and it was a one word answer. It was as emphatic as ‘No, none of these can operate safely—’ if I can use that phrase,‘—without interference.’

Mr Loney —Broadcast Australia has conducted a trial of the DVB-H technology in Sydney and we are not aware of any significant interference issues that arose from that trial. Once again it comes down to the assumptions I think people are making about how a channel B licensee would deploy a mobile television service. At the moment, we are still at a situation where there are a number of technology choices that a channel B licensee can make. Once the licence is allocated, if they have not already selected a technology, they would select their technology and commence their planning. If they identified the need for additional sites for infill repeaters, or any additional sites, they then need to come to ACMA and let us know what they think their requirements are and that is when we would start our processes.

Senator CONROY —Should that be identified before purchase?

Mr Loney —No, because—

Senator CONROY —Presumably if someone wants to come and buy this thing they have got to demonstrate to you before you will sell it to them that they are not going to interfere. In other words, they should give you their repeater sites and all that sort of stuff upfront so everyone can comfortably say, ‘It is fixed.’

Mr Loney —No, the approach that ACMA is taking is actually the reverse of that. We are making it very clear through things like the technical planning guidelines that we will not allow them to operate in a way that will cause interference. In effect, the risk is actually on the purchaser of licence B to make their own technical judgements about what is the most appropriate technology for their service model and to work through the issues associate with deploying whichever technology they wish in a way that does not interfere with existing services.

Senator CONROY —Was the BA trial on a cellular network?

Mr Loney —No it was a high-powered, high site.

Senator CONROY —Okay, so when we ask about whether cellular interferes and you say BA have just done a trial, it is not comparing apples with apples?

Mr Loney —My recollection of—

Mr Cheah —I think your question, Senator, was there was a claim being made that all of the band four frequencies were unsuitable for mobile television. I think Mr Loney made the observation that BA was conducting a trial. They are clearly using technology and it does not seem to be causing interference at the moment. So there is one example of a possible deployment strategy which could be done which may not have completely optimal things in terms of coverage but nevertheless has been done in such a way that does not seem to have caused interference.

Senator CONROY —This comes back to your question of an assumption about what technology would be used.

Mr Loney —And how it is actually deployed. You suggested that we should decide beforehand, but then at the moment I think there are five competing mobile television technologies. I will not try and go through all the acronyms, but there are five technologies out there. They all have different technical characteristics. We do not know who the service model or the channel B licensee will be. What coverage will they actually be seeking to provide through the channel B licences or transmitters operated under the channel B licences.

Senator CONROY —The problem is you are not going to know the amount of interference until channel B turns on, by the sound of it.

Mr Loney —No, that is not the case because we have a large number of modelling tools and this also is not an exercise we would embark on by ourselves. Mr Bunch mentioned the Digital Television Channel Planning Consultative Group that was set up as part of the process that resulted in the digital channel plans that identified the two unassigned television channels. I would like to make the point that there was no statutory requirement for the ABA to establish that consultative group. The ABA, like the ACA, like ACMA, as a matter of good practice, quite often uses consultative mechanisms that are not statutorily required—

Senator CONROY —It sounds like it has been nearly eight months since the last consultation. That does not sound to be an optimal level of consultation.

Mr Loney —No, there was another discussion paper released earlier this year.

Senator CONROY —December 2006.

Mr Loney —We have consulted about changes to the technical planning guidelines, but I think the assumption is that, for an unknown channel B licensee deploying an unknown technology with an unknown business model, we should be able to solve all their problems beforehand. I just do not think that is the case.

Senator CONROY —You should not be able to solve them. They should be able to convince you they have solved them.

Mr Loney —No, I think all we need to do is provide a planning and regulatory environment that makes it clear what they are not allowed to do, which is that they are not allowed to cause interference to existing free-to-air services. Within that constraint which is set out in detail in our technical planning guidelines and other regulatory arrangements, that they can then come up with a solution that best suits their business model on the technology that they wish to deploy.

Dr Pelling —Another point worth making in that regard is that the government decided that the channels would be auctioned so you would not know who is the winner in the channel allocation process and therefore what—

Senator CONROY —But you have already put in writing to them that they cannot turn it on unless they can guarantee no interference.

Mr Cheah —Yes.

Senator CONROY —I thought that is what you indicated that you said to them.

Mr Cheah —Yes, we have and we made that very clear.

Senator CONROY —That is in writing.

Mr Cheah —In our two discussion papers we put out a discussion paper in December and another discussion paper in March, and in both discussion papers it is made very clear that if you buy the channel B licence, you will not be able to interfere with the existing analog.

Senator CONROY —Discussion papers are one thing, they are not legally binding.

Mr Cheah —The technical planning guidelines which we keep on referring to are and they go into a lot of detail about this.

Senator CONROY —They are to be incorporated in the tender process.

Mr Cheah —They are the law anyway.

Mr Loney —The technical planning guidelines are made under the Broadcasting Services Act but will in actual fact be a licence condition that will apply to the channel B licence, so they have to comply with—

Senator CONROY —Given that they have to comply, why do we need this amendment that gives you the power to move people around?

Dr Pelling —There have been a lot of issues raised in this discussion which go completely beyond the amendment. The amendment really is a very technical amendment which is designed to give ACMA the kind of ability to, for example, reallocate frequencies for an apparatus licence which is what the datacasting transmitter licence is a form of. At the moment it is the only class of licence and there was no particular policy reason behind this, it is the way the legislation was drafted, it is the only category of apparatus licence which ACMA does not have the ability to change a frequency for after it is allocated. At the moment it allocates a frequency to the licence when it allocates and that is then essentially locked in and ACMA does not have any ability to change it. Any other class of apparatus licence for a taxi mobile system or some other sort of system—

Senator CONROY —TV stations and taxi licences.

Dr Pelling —And TV stations as well. ACMA can change the frequencies. But in this one, by a legislative anomaly, it cannot. So this amendment is not getting into any of these sorts of bigger policy issues about planning for channel A or channel B. All it is designed to do is to—

Senator CONROY —It looks like it to me.

Dr Pelling —Sorry?

Senator CONROY —It looks like it to me.

Dr Pelling —All it is designed to do is to give ACMA a power in regard to one category of transmitter licence which it has for all other categories of transmitter licence and therefore, if you like, fix an anomaly in the act. If we did not do this, ACMA, for example, would not be able to change the frequency of a channel B licence if it was to be found causing interference and another channel were available. It may or may not be the case. If we allocated it in channel X, then it would always have to transmit in channel X. This means that if you put it in channel X, ACMA can then, if there is an issue with that or the licensee may at some stage come to ACMA with a request for a change, or when the analog television services are switched off there is some desire to look at the overall allocation of the spectrum that was used for analog services et cetera, it would be the annual channel which there would be no ability for ACMA—or the licensee or for that matter should they make a case to do so—to change. So this just fixes a technical anomaly—it is one issue which is tagged on to the bill of the information sharing matter. There may well be issues in this broader debate and we can have a discussion and debate about this whole set of wider planning issues. I would emphasise that there is a whole process still to go through because as the minister made clear at the last estimates hearings there are still policy issues around the allocation of channel A and channel B—channel B in particular. But this is not designed to fix those problems.

Senator CONROY —That is exactly what it looks like from where I am sitting, I have to tell you.

Dr Pelling —From our perspective, it fixes a technical anomaly in the system.

Senator CONROY —Where would you move them to if you had the capacity to move them? They are told they are not allowed to broadcast into this area that causes interference. My assumption is if they do that, they are turned off—not you suddenly move them somewhere else. Where would you move them to?

Dr Pelling —It may be open to the person who has a particular frequency and it would not just be channel B. It could be channel A, or some other operator of a service wants to move—or another channel becomes available which might be better and ACMA might negotiate—

Senator CONROY —This is one of the issues where I get really concerned, because I got the sense from one of the descriptions before that part of the problem was because you have got dual simulcast of analog and digital at the moment, the problem will actually dissolve once there is only the one channel. I got some sense that the problem was perhaps because of that simulcast that that was actually the problem and once the simulcast is over period, hey, problem solved.

Dr Pelling —I think it is true to say that the congestion of channels in some markets like some of the eastern seaboard metropolitan markets makes this problem much more difficult, because there is a very close packing of analog and digital channels.

Senator CONROY —To me, what happens to that spectrum that becomes free is a government policy decision.

Dr Pelling —That’s correct.

Senator CONROY —Not your way of solving something that you should not have let happen in the first place. To me, that is not a solution for you.

Dr Pelling —I think the whole question of what happens to the analog channels when they become available is—

Senator CONROY —And you should not be planning on the basis of what you think—presenting a fait accompli to any government of what we have already—you cannot do that with that now free spectrum because it is actually what is going to solve this problem here. It does not seem to be a sensible way of operating.

Dr Pelling —With respect, the decision was taken by this government to allocate two channels and we are working through the best way of allocating those two channels. That is legislated by the parliament.

Senator CONROY —I understand that.

Dr Pelling —But we are not doing anything—

Senator CONROY —You seem to be pre-empting a future decision—it does not matter who is in government. The sort of logic that you put forward earlier and the implication of what was said earlier was you are pre-empting what will happen with the future free spectrum.

Dr Pelling —I am not sure why you are reaching that conclusion because essentially we have a policy decision by the government to allocate two channels—A and B. It turns out that one of the emerging technologies should be mobile television, so we have to factor that into the debate. The process which we are now going through is to find the best way to put in place the process for allocating those two channels and part of the consideration for allocating channel B must be our capacity to optimise it for mobile should that be the desire of the applicant who wins that spectrum to use that spectrum in that way.

I do not think you can build in any assumptions about how the market might react and what sort of spectrum might or might not become available, or what sort of issues may arise over the course of the next few years in relation to this or any other kinds of services which may influence what sort of digital dividend—if I can use that expression—the government gives at the end of the day. All we are trying to do now is start a process which the government has set in legislation and which we have to undertake.

Senator CONROY —Let me try and be a bit more specific then to explain. The impression I got, and it could be wrong, was that part of the problem with where B is currently aimed is that the simulcast here—and I think Free TV made the point that was not enough buffer—is that the word? Safeguard? Is that the correct technical term?

Dr Pelling —I understand what you mean.

Senator CONROY —But the implication I got was that once there was not that simulcast period, then the safe buffer could be created which would encroach on your future digital dividend. To me that is not a planning process that you are authorised in any way to make. That is just how it sounded from the description: ‘It will be okay because we can then open up the buffer from either side which by definition reduces.’

Dr Pelling —There is no decision that more than the seven megahertz channel that has been allocated to these two services will ever be allocated to them, so I certainly do not think you should read into any of this that the government or ACMA will automatically decide that we should use some of the vacated analog spectrum to pad the side so that does not interfere.

Senator CONROY —The future government could suddenly be told when the simulcast is over, ‘No, we actually need to put in a wider buffer.’

Mr Cheah —I think, if anything, the amendments actually give us more flexibility. I think you actually run into a bigger problem in the sense of the problem you are talking about if you do not pass these amendments because, if you do not, we award a licence for 10 years and we say it is for this particular channel here with these particular frequencies. If we have no ability to move, then I suspect you actually cut off your options further down the track in terms of those—

Senator CONROY —No, you cut off channel B. That is what you cut off.

Senator IAN MACDONALD —That is hypothetical, though, when you are talking about other government.

Senator CONROY —No, I am saying any government. It does not matter.

Senator IAN MACDONALD —Could I plead your indulgence because I do have to go.

Senator CONROY —Jump in.

Senator IAN MACDONALD —You may well have answered it, but quickly before I go, did someone hear the evidence of the previous witnesses?

Dr Pelling —Yes.

Senator IAN MACDONALD —They have proposed an amendment which, to me, seems quite reasonable. How do you answer that; do you agree or disagree? Are you in a position to agree or disagree, or is it a government policy decision? As I understood it, correct me if I am wrong, they are suggesting an amendment which will require prior planning and consultation by ACMA. That, to me, seems eminently reasonable.

Dr Pelling —To answer your question it might be helpful if ACMA just details to you the processes. Mr Loney has gone into that to a certain extent, but we could deal with the processes and the types of consultations that they have done and will do in regard to allocation of the spectrum.

Senator IAN MACDONALD —I do not think we have enough time for that and I would rather you answer my questions. Are you saying that the amendments proposed are, policy wise, wrong for some reason and, if they are, can you tell me the reason?

Dr Pelling —It would be a policy matter for the minister. It is not a matter that I can—

Senator IAN MACDONALD —So it is a policy matter?

Dr Pelling —It is a policy matter for the minister.

Senator IAN MACDONALD —I must say from previous hearings that I have had in the telecommunications area, the lack of consultation by my government seems to be very, very poor. So when people say to me, ‘We weren’t consulted’ or ‘The consultation is no good,’ I easily relate to that. Perhaps unfairly and unfortunately the minister is not here to defend the department and herself. I treat these things responsibly, but I, like everyone on the committee, want to get a result that is good for the Australian public, and dare I be so crass as to say the voters, but it does seem to me that Free TV Australia had a sensible amendment that suggested—and I can well believe the suggestion, as I say—that the consultation was not perhaps as good as it could have been, with time constraints. I am wondering if anyone is prepared to say to me why that is a bad idea. Is it purely a policy position which I should ask the minister?

Mr Cheah —Can I firstly pick up on a factual issue which you just raised? You said that Free TV had said that we had not consulted. My impression was that that they said—

Senator IAN MACDONALD —I do not want to get into that. You heard them, didn’t you?

Mr Cheah —Yes.

Senator IAN MACDONALD —And you heard my questions to them. These are a bit unfair to the public service and I accept that, authority people. It seems to me if that amendment were passed, what harm could be done. It puts a bit of an additional onus on ACMA to actually consult. I think Free TV said that you probably would consult, but then you may not. It seems to me that it is not a bad suggestion for an amendment. I do not want to really draw you on things that you should not be talking about, but what I am really asking is: is there a technical reason why what Free TV were asking—and we went through a lot with Free TV, but their basic underlying thing as I understood it, was that they thought if there was an obligation to consult, an obligation to pre-plan, we would all be better off.

Dr Pelling —As I said earlier, I think that a decision on that would be essentially a matter for the minister. Is there a technical reason why I am not familiar with—I would prefer not to say off-the-cuff how such a proposition might be woven into the existing planning and allocation process—

Senator IAN MACDONALD —I am sorry, which of you are from the department and which from ACMA?

Dr Pelling —I am from the department.

Senator IAN MACDONALD —You are advising the minister. The minister must have said, ‘Do we need to have these proposals that Free TV have put in about consultations?’ And you must have said, ‘No, you don’t, Minister, because we are already consulting,’ but you are not.

Dr Pelling —I think our answer basically is that which we provided to the committee and I would not want to deviate from that.

Senator IAN MACDONALD —What is the answer? I am sorry I have not had the time to read it. You have given us three pages of bureaucratic stuff that none of us understand.

CHAIR —No, it is reasonable.

Senator IAN MACDONALD —Can someone summarise it for me? We are all on the same side here.

Senator CONROY —Speak for yourself.

Senator IAN MACDONALD —You are probably wanting the best result. You want everyone’s’ TV to cut out in the next three months.

CHAIR —Let’s move on quickly. Can we answer Senator Macdonald’s questions, because we are a long way over time.

Mr Loney —I have some information about the existing arrangements that might assist with your concern about this issue.

Senator IAN MACDONALD —Are you saying Free TV were wrong in what they said about lack of consultation?

Mr Loney —There are already statutory processes. There are already statutory requirements for consultation.

Senator IAN MACDONALD —Free TV do not think you did it. Commercial radio Australia did not think you did it in that previous one. Either Free TV are right or you do not agree with them.

Mr Loney —There has not been a situation yet where we have issued the licences and there has been no request to commence the statutory processes that apply to—

Senator IAN MACDONALD —You should have asked them before. Nobody has been near them.

Mr Loney —We have had two discussion papers. We have consulted about changes to technical planning guidelines.

Senator IAN MACDONALD —So you have had a discussion with Free TV Australia which means that they have given—

CHAIR —They have put in submissions—

Senator IAN MACDONALD —Have you responded to them? Have you talked to them about it?

Mr Bezzi —We are about to publish a new version. With the federal register of legislative instruments there will be a new version of the technical planning guidelines that will be the response to the submissions.

Senator IAN MACDONALD —They might be right off the planet. They might be quite wrong and you can say to them, ‘This is why you are wrong.’

Mr Bezzi —There has been consultation.

CHAIR —I did not hear them to be saying that there had not been any and there is no reason why—

Senator IAN MACDONALD —They put in a submission and they said it is a one way submission.

Senator WORTLEY —Can I follow up on that. Do you intend to respond to Free TV?

Senator IAN MACDONALD —Do you intend to talk to them?

Senator WORTLEY —Are you going to provide them with a response? Or are you just going to—

Senator CONROY —Publish another paper?

Senator WORTLEY —Yes, publish another paper. Are you going to respond to Free TV?

Mr Cheah —In terms of writing back to a particular submitter, that would not be the normal process.

Senator IAN MACDONALD —Why wouldn’t you go and talk to them and say, ‘Look, perhaps all wisdom does not rely on us. Perhaps you have got a few ideas that we could pick up.’

Mr Bezzi —That is absolutely the process that has happened, Senator. That has absolutely happened.

Senator IAN MACDONALD —So what you are saying is Free TV have told us little porkies?

Mr Cheah —No, we are under a slight misapprehension. All this amendment really does is bring the DTL arrangements into line with all of the other planning arrangements for other licences. There are processes in place for consultation. Free TV has not criticised our processes in the past for any other licences.

Senator IAN MACDONALD —They have concerns that you have not done any prior planning and you have not spoken to people who might not like them.

Mr Cheah —No, I did not hear Free TV say that. Free TV actually said we had consulted with them a lot—fully in relation to the construction of the existing digital channel plan. There has been no move to amend the digital channel plan at all and were there to be, we would consult.

Senator CONROY —I think they were suggesting that there is an existing framework that did not apply to channel B.

Mr Loney —I think that might be where we disagree with Free TV.

Senator IAN MACDONALD —What I would like to do is for everyone else to go and lock you guys in here with Free TV Australia so you can have a bit of a chat and who knows you might convince them they are wrong, or they might convince you there is a better way of doing it. That way we, the government, and the listening or viewing public of Australia would be all that much happier and the opposition would not have a plan to attack us in the next 12 years while they try to get government because we would have everyone happy. But we have obviously got a group of people representing Free TV Australia who are not going to the substance. They are simply saying, ‘Well, if they had asked us, we could have told them X, Y and Z.’

Mr Cheah —Our view is we have a highly consultative process. It is a belts and braces consultative process. Embedded into it is a lot of consultation about every stage along the way. We have always followed it. We have not had any complaints about that process to date and the process we are proposing here is exactly the same.

Senator IAN MACDONALD —There must be a difference in committee hearings.

Mr Bezzi —I think the comment was that the old TPGs do not deal with some of the issues that they wanted to raise and our answer to them is that is correct, but the new ones do.

CHAIR —Thank you very much. We will just leave it at that. Are there any other questions on this matter?

Senator CONROY —We were talking about why you seemed to believe the best spot was band four, whereas Free TV were suggesting upper band five might be a more appropriate spot and then I think, Dr Pelling, you were starting to say earlier that there was potential for interference with GSM if you put it up into 69, 68?

Dr Pelling —Yes, my understanding is that I think about the mid 50s is the highest you could go before that interference becomes an issue.

Senator CONROY —For GSM networks?

Dr Pelling —No, the mid 50s in terms of the channel number that you could give for a mobile television service going into the same handset as a GSM signal.

Senator CONROY —So 69, 68 would cause interference with GSM handsets?

Dr Pelling —That is my understanding, yes. I do not know how technology has developed since I got that understanding.

Senator CONROY —Mr Bunch seemed to think that was not the case at all. Is there some empirical test we can do, Mr Loney?

Mr Loney —The discussion focused on GSM handsets and I think the assumption there is that we are talking about the 900 megahertz band. It is worth pointing out that the Telstra Next G network, which operates in the 850 megahertz band, will also potentially have similar problems in terms of being able to build a handset with integrated mobile television receiver and mobile phone because of adjacency issues, frequency separation.

Senator CONROY —So that is a future development of Telstra or an existing product?

Mr Loney —No, simply because they are both the 850 megahertz band used by Telstra for the Next G network and the 900 megahertz band used for GSM mobile phones are both close enough to—

Senator CONROY —Channels 68 and 69.

Mr Loney —For there to be problems. That is our understanding. However, as I think I mentioned before, the technology standards here are developing quite quickly. My understanding is that we reached that conclusion after our initial consultation paper last year. If Mr Bunch has additional information that would cause us to reconsider that we would be happy to look at it from a potential planning point of view. However, at the moment the two unassigned channels that we have available to allocate for channel A and channel B are the two channels set out in the digital channel plans and in the different licence areas we have allocated between channel A and channel B based on the channel B frequency in each licence area is the one we believe is most suitable to mobile television purposes should the licensee decide to use it for that purpose.

Senator CONROY —I put to Mr Bunch—and I think you were all in the room when I did—two questions, which he answered very emphatically. One was that none of the technologies of MediaFLO, TDMB, DVB-H or any of the other potential mobile buyers would not have interference issues in band four, and he said no, all of them would interfere. You have indicated from your understanding of the technical situation that is not right because it depends on the technologies that would be deployed.

Mr Loney —And the way they are deployed.

Senator CONROY —And the way they are deployed.

Dr Pelling —I think that is the key issue; the way they are deployed.

Senator CONROY —The second issue we asked the previous witnesses about was that would there be interference from any of these five I think you indicated exist at the moment if they were put into upper band five and he said, ‘No, there would be no interference issues.’ You are saying on a technical basis that is not right either, because he was very emphatic about that. Yeses and nos. Not lengthy answers. Technologically.

Mr Loney —Putting aside the issue of interference in mobile phone handsets, because we have been talking about two separate types of interference, we have television services operating in both band four and band five and the unassigned channels that we have available are channel A and channel B that we have had our discussion papers about. At this point, we do not see that there is a potential to licence additional services in those bands.

Senator CONROY —Is that because of technical interference? As I said, the previous witness was quite emphatic; he did not believe there was any technical interference—he was arguing that they were cellular and you have indicated that it could be deployed in a different way, but he was quite emphatic about interference with all options, in the existing two you are proposing, and if they went up to channels 68 or 69, upper band five, no technical problems. You are saying wrong on both counts because of the following factors.

Mr Loney —Yes, it comes down to the assumptions underlying those statements.

Senator CONROY —I accept that point. Basically you are saying he has made not the wrong assumptions, he has just made some old assumptions.

Mr Loney —He has made different assumptions.

Senator CONROY —He has made different assumptions, and on the information you have, those assumptions that he has made are not correct, and therefore those interference problems which he believes do not happen in band four and do happen in band five are also not correct. He had the reverse position.

Mr Loney —Regardless of whether it is band four or band five, if you have an analog or a digital free-to-air fixed in-home television service and you deployed a mobile service badly, you could cause interference. So the issue then, for us, becomes what are the regulatory arrangements that we put in place to ensure that if someone chooses to use channel B for mobile that they deploy in such a way, or that they understand that they can only deploy in such a way that minimises the potential for interference to existing services.

Senator CONROY —Thank you.

CHAIR —That just about concludes these hearings then. We need perhaps to have a motion to accept any tabled documents.

Senator BIRMINGHAM —Chair, may I intrude briefly? I apologise I have been in and out a little bit.

CHAIR —That is okay.

Senator BIRMINGHAM —I will leave the datacasting aspects alone. Very briefly on the privacy aspects of the legislation, in response to questions posed by the committee related to submissions made by the Office of the Privacy Commissioner and others, the department says that the bill makes provision for the ACMA chairman to impose conditions on those who disclose information to other bodies or impose conditions on those other bodies. Rather than the position being that the chairman has the arbitrary decision to impose or not to impose, is there a reason why the legislation would not require the chairman to impose such conditions on release of information to jurisdictions where privacy principles such as those of the information privacy principles referred to by the Office of the Privacy Commissioner are not in place?

Dr Pelling —I think it ultimately comes down to a question of giving the regulator adequate flexibility, but I might ask my colleague Mr Neil if he has got any further comment to make.

Mr Neil —On the question of requiring, I think the proposal was where jurisdictions did not conform with the Commonwealth’s privacy requirements, for instance in South Australia and overseas, would it be appropriate for the chairman to be required to impose equivalent conditions in the change. One of our concerns was that particularly in an international environment it is not clear that we could do that effectively—if it went to an overseas jurisdiction where we are highly dependent on the information they provide us. For instance, in the internet we are not a major source of information, we depend a lot on sites identified in larger countries, so the information flow to us is much greater than the information flow out. The nature of information is not necessarily the sort that is highly controversial, but may include personal information because it is related to interactions with the internet. The concern was that agencies might simply say that the information you give us is not very much and isn’t that significant and no, we are not prepared to adhere to your requirements. We have our own regulations and we adhere to those, but we will not accept yours. In that case, we ran the risk of important exchanges of information internationally that we require being damaged by that severe limit. We would expect the chair to seek arrangements to protect the information but we want to give him sufficient flexibility to reflect the international environment.

Senator BIRMINGHAM —The expectation would be that in the domestic environment you would expect the chair basically on all occasions to expect adherence to privacy principles but I can see internationally obviously you are talking in examples that stretch beyond that—with the submission from the ABC and from Telstra and so on, they are probably not companies that are likely to be captured within that internet framework that you are talking about.

Mr Neil —I think the essential problem for us is likely to be internationally where I think there are a lot of countries or international groups who simply would not be interested in committing themselves. They would say, ‘We have our own systems. We have our own principles and we will adhere to those and we will respect your data in those contexts.’ Often most international jurisdictions that we would change information with have developed similar systems to our own, but they are not necessarily going to sign up to ours. It is on the basis that the level of information exchange is much more in our favour than theirs, so the matter of leverage we would generate would be a lot less. So we would prefer to leave the flexibility with the chair to determine the basis of the change.

Senator BIRMINGHAM —Thank you.

CHAIR —Do you have any questions, Senator Wortley?

Senator WORTLEY —I was just looking here, further on that privacy issue and reading from your submission here, one of the submissions says: ‘The bill should specify that in circumstances whether ACMA discloses authorised disclosure information that has been provided to it on a confidential basis to another entity as authorised under the bill, it must impose a condition on the recipient entity that it not further disclose the information unless the organisation which originally provided the information to ACMA consents in writing for ACMA to provide the information without such condition.’ That is what we were talking about just then. Can you just explain that further; why that is a problem?

Mr Neil —It is a different question. I think it goes to this question of information—the classic example in that case is information considered to be commercial in confidence. The question is that when ACMA is given information in the commercial in confidence context it imposes that requirement when it exchanges with somebody else. Again, in the cases where ACMA exchanges commercial in confidence information it is only with agencies that have a direct responsibility in relation to that information, so it is typically agencies like the ACCC. They will use it in that context and, where necessary, the chair can impose a requirement but we think it is for the chair to decide the nature of the information. One of the issues is that the temptation would be for groups to simply impose that condition to describe all of the information they provide as commercial in confidence and we would prefer to leave that decision to ACMA and to the chair—with the expectation that organisations like the ACCC do treat that sort of information appropriately and always have.

Senator BIRMINGHAM —My recollection is these proposed amendments were a result of the fact that the ACCC gained additional powers of disclosure and was able to provide information to bodies like ACMA, and you, however, were potentially unable to do so in return.

Mr Neil —That is the motivation for the entire bill. In fact, provisions have already been passed which allow the ACCC to provide commercial in confidence information to ACMA, but ACMA does not have the clear authority to reciprocate.

Senator BIRMINGHAM —How do the privacy restrictions imposed on the ACCC compare to those in this legislation?

Mr Neil —ACMA is bound by the Privacy Act and it is clear that this act does nothing to change those responsibilities.

Senator BIRMINGHAM —I will rephrase the question. It is about issues such as the one that Senator Wortley has just raised about the disclosure of the ACCC, which presumably can provide information to bodies other than ACMA. Can those bodies then pass on information as well? Are there nonsubsequential disclosure provisions that apply to the ACCC?

Dr Pelling —I think the bill is quite specific. Both the amendments to the Trade Practices Act from my recollection and these provisions are quite specific in terms of the ACMA having the ability to provide information to specified organisations. As to what those organisations can then do with the information, I think it is true to say that it is not—

Mr Neil —The ACCC has a similar provision to the one that we have in that the chair may impose conditions on the agency with whom they are exchanging information. It is a similar provision.

Senator BIRMINGHAM —The reviewing of the provisions, it is a chair’s discretion.

Mr Neil —What we are saying is that the provision we have given to the chair of ACMA is similar to the provision which the chair of the ACCC has.

Dr Pelling —The bills are quite similar. The structure and substance of the amendments that parliament has already passed in relation to the ACCC are quite similar to this.

Senator WORTLEY —Could ACMA comment on the issues that were just raised?

Mr Bezzi —My comment would be that we agree with the position the department has put. Another way of putting what has been put is that the framework that has been established provides flexibility and it provides us with the capacity to protect peoples’ legitimate interests and rights, but it also minimises the prospect that people can use their rights over confidential information as a way of obstructing legitimate investigations or communication between government agencies that really should happen to enable them to perform their various functions and roles. For example, if we and the ACCC are both looking at a media merger matter, people have less scope for gaming us by relying upon confidential information being only made available to one agency and not the other if there is a degree of flexibility there. So we very much welcome the framework that has been established under this bill.

CHAIR —If there are no other questions, we will conclude proceedings. We may need a motion from a member of the committee to accept any tabled documents, and we did have some tabled documents from the first witnesses. Moved, Senator Wortley; seconded, Senator Birmingham. I thank all witnesses for their informative presentations. I thank Hansard, the broadcasting unit and the secretariat and I close these hearings.