Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019



Download PDFDownload PDF

ISSN 1328-8091

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

BILLS DIGEST NO. 59, 2019-20 27 NOVEMBER 2019

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 Owen Griffiths Law and Bills Digest Section

Contents

The Bills Digest at a glance .............................................. 3

Purpose of the Bill ........................................................... 4

Structure of the Bill ......................................................... 4

Background ..................................................................... 4

Legislative context ....................................................... 4

Deregulation ................................................................ 5

Committee consideration ................................................ 6

Senate Standing Committee for the Selection of Bills .............................................................................. 6

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 6

Policy position of non-government parties/independents...................................................... 6

Australian Labor Party ................................................. 6

Australian Greens ........................................................ 7

Minor parties/independents ....................................... 7

Position of major interest groups..................................... 7

Financial implications ...................................................... 8

Statement of Compatibility with Human Rights................ 8

Parliamentary Joint Committee on Human Rights ..... 8 Key issues and provisions ................................................ 8

Schedule 1-Streamlining Regulation .......................... 8

Control notification requirements ............................ 8

Classification .............................................................. 8

Disposal of NBN Co non-communication goods ....... 9 Admissibility of evidence......................................... 10

Submarine communications cable protection zones ....................................................................... 10

Date introduced: 16 October 2019

House: House of Representatives

Portfolio: Communications and the Arts

Commencement: On Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2019.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 2

Schedule 2-Broadcasting licensee support payments ................................................................... 11

Schedule 3-Monitoring of the telecommunications industry ................................... 11

Scrutiny Committee................................................. 13

Schedule 4-Technical amendments ......................... 14

Schedule 5-Spent and redundant legislation ........... 14 Schedule 6-Numbering arrangements ..................... 15 Scrutiny Committee................................................. 17

Parliamentary scrutiny and adequacy of review rights ...................................................................... 17

Broad delegation of administrative powers .......... 18 Industry and consumer group responses ................ 18 Schedule 7-Publication requirements ...................... 21 Schedule 8-Installation of optical fibre lines ............ 21

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 3

The Bills Digest at a glance

Introduction

The Communication Legislation Amendment (Deregulation and Other Measures) Bill 2019 (the Bill) represents the third time a version of this proposed legislation has been considered by the Parliament. This publication draws on and updates earlier Bills Digests prepared for previous iterations of the Bill. In particular, R Jolly, Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017, Bills digest, 103, 2016-17, Parliamentary Library, Canberra, 2017.

Key provisions

The key provisions of the Bill will:

• Remove a requirement for persons taking control of regulated media assets to notify the Australian Communications and Media Authority (ACMA) (which duplicates an existing notification requirement) (Schedule 1).

• Amend the National Broadband Network Companies Act 2011 to allow NBN Co to dispose of surplus non-communication goods (Schedule 1).

• Remove the requirement for ACMA to consult with an advisory committee before declaring a submarine cable protection zone (Schedule 1).

• Correct an error in the Telecommunications Act 1997 which relates to the admissibility of evidence in certain proceedings (Schedule 1).

• Alter the amount of transitional support payments to Network Investments Pty Ltd (Schedule 2).

• Change the requirements for ACMA and the Australian Competition and Consumer Commission (ACCC) to provide certain reports to the Minister to table in Parliament (Schedule 3).

• Make minor amendments to communications legislation to repeal redundant provisions, provide consistent use of terms and update the use of terminology (Schedule 4).

• Repeal a number of pieces of redundant and spent legislation (Schedule 5).

• Remove specific consultation requirements in the making of procedural rules by the ACCC (Schedule 5).

• Facilitate industry-based management of telephone numbering by giving the Minister the power to specify a numbering scheme manager and setting out numbering scheme principles (Schedule 6).

• Remove a requirement that ACMA publish a notice in the Commonwealth Gazette when it determines, varies or revokes a program standard or datacasting standard (Schedule 7).

• Remove the capacity of NBN Co to issue statements of non-installation of optical-fibre in new real estate developments (which operate to remove obligations on developers to install fibre-ready infrastructure) (Schedule 8).

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 4

Purpose of the Bill The purpose of the Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 (the Bill) is to make amendments to a broad range of legislation relevant to the communications sector. These amendments are intended to ‘minimise the regulatory burden on the broadcasting and telecommunications sectors, and to simplify regulation by removing redundant or otherwise unnecessary provisions’.1 The Bill’s provisions include amendments to:

• the Broadcasting Services Act 1992 (BSA)

• the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 (Broadcasting Reform Act)

• the Telecommunications Act 1997

• the Competition and Consumer Act 2010 (Competition Act) and

• the National Broadband Network Companies Act 2011 (NBN Companies Act).

Structure of the Bill The key amendments of the Bill are contained in eight schedules. These are:

• Schedule 1-Streamlining Regulation

• Schedule 2-Broadcasting licensee support payments

• Schedule 3-Monitoring of the telecommunications industry

• Schedule 4-Technical amendments

• Schedule 5-Spent and redundant legislation

• Schedule 6-Numbering arrangements

• Schedule 7-Publication requirements and

• Schedule 8-Installation of optical fibre lines.

Background

Legislative context The Bill is the third time a version of this proposed legislation has been considered by the Parliament. In December 2015, the Communications Legislation Amendment (Deregulation and Other Measures) Bill 2015 (2015 Bill) was introduced into the House of Representatives.2 After the Senate agreed to an Australian Labor Party (Labor) amendment in relation to NBN Co’s reporting obligations, the 2015 Bill was returned to the House of Representatives.3 The House of Representatives disagreed with the Senate’s amendment and the 2015 Bill lapsed at prorogation of the 44th Parliament.4

1. Explanatory Memorandum, Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019, p. 2. 2. Parliament of Australia, ‘Communications Legislation Amendment (Deregulation and Other Measures) Bill 2015 homepage’, Australian Parliament website. 3. The amendment was to change the NBN Companies Act to require the NBN Co Board to prepare a report setting out NBN Co's

financial and deployment forecasts for the period beginning on 1 July 2015 and ending on 30 June 2022. S Conroy, ‘Communications Legislation Amendment (Deregulation and Other Measures) Bill 2015, Telecommunications (Numbering Charges) Amendment Bill 2015’, House of Representatives, Debates, 22 February 2016, p. 509. 4. Australia, House of Representatives, ‘Communications Legislation Amendment (Deregulation and Other Measures) Bill 2015’, Votes and Proceedings, 177, 25 February 2016, p. 1946.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 5

A Bills Digest prepared by the Parliamentary Library on the 2015 Bill (published before the Senate’s amendment) is available.5

In March 2017, the Communications Legislation Amendment (Deregulation and Other Measures) Bill 2018 (2018 Bill) was introduced into the House of Representatives.6 The 2018 Bill passed the House of Representatives after some amendments by the Government and revisions to the Explanatory Memorandum which included amendments to reflect consideration by the Senate Standing Committee for the Scrutiny of Bills (discussed below). However, following its introduction into the Senate, the 2018 Bill lapsed at the prorogation of the 45th Parliament.7

A Bills Digest prepared by the Parliamentary Library on the 2018 Bill (published prior to the Government amendments in the House of Representatives) is available.8

Some provisions have been removed, altered or reordered between the three versions of the Bill. For example, the amendments in ‘Schedule 2-Broadcasting licensee support payments’ in the Bill were not contained in the earlier versions. ‘Schedule 2-Complaints handling by the ACMA’ which was contained in the 2018 Bill (as introduced) is no longer in the Bill.

Deregulation The Bill represents part of the Coalition Government’s ongoing deregulation policy intended to reduce the cost to Australian businesses of red tape by repealing legislation and regulations considered unnecessary and counter-productive.9 The extent to which rules and regulations have imposed excessively onerous burdens on the communications sector has been noted in the past. The final report of the Convergence Review Committee, commissioned in 2012 to examine Australia’s rapidly changing media landscape, concluded that many elements of the current communications regulatory regime are outdated and unnecessary, while other rules are becoming ineffective as the communications landscape evolves.10

The communications portfolio was a particular target for red tape reduction with two Department of Communications’ discussion papers noting that the sector was ‘subject to substantial levels of regulation’ and that it is ‘timely to consider whether the current communications regulatory framework remains appropriate for the modern communications environment’.11

In 2015, then Minister for Communications, Senator Mitch Fifield, commented that the Government had delivered significant progress in the implementation of the Government’s

5. R Jolly, Communications Legislation Amendment (Deregulation and Other Measures) Bill 2015, Bills digest, 68, 2015-16, Parliamentary Library, Canberra, 21 January 2016. 6. The previous citation of the 2018 Bill was the Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017. 7. Parliament of Australia, ‘Communications Legislation Amendment (Deregulation and Other Measures) Bill 2018 homepage’,

Australian Parliament website. 8. R Jolly, Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017, Bills digest, 103, 2016-17, Parliamentary Library, Canberra, 29 May 2017. 9. T Abbott (Opposition Leader), The Coalition’s deregulation agenda, media release, 2 November 2012; T Abbott (Prime

Minister) and J Frydenberg (Parliamentary Secretary to the Prime Minister), Reducing red tape to build a strong and prosperous economy, joint media release, 19 March 2014; J Frydenberg (Treasurer) and B Morton (Assistant Minister to the Prime Minister and Cabinet), Delivering deregulation for Australian business, joint media release, 12 September 2019. 10. Convergence Review Committee, Convergence review: final report, report prepared for the Department of Broadband, Communications and the Digital Economy (DBCDE), DBCDE, Canberra, March 2012, p. 1. 11. Department of Communications (DoC), Deregulation in the communications portfolio, policy background paper, 1, DoC, Canberra, November 2013, p. 3; DoC, Regulating harms in the Australian communications sector: observations on current arrangements, policy background paper, 2, DoC, Canberra, May 2014.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 6

regulatory reform agenda in the communications sector.12 The Minister added that during 2014 and 2015 the Government had introduced more than 65 communications sector measures aimed at simplifying regulation and removed more than 3,400 pages of unnecessary regulation. This had ‘delivered an estimated cumulative annual savings of $340 million for businesses and consumers in the communications sector’.13

In 2018, the Senate Select Committee on Red Tape tabled its report on Policy and Process to Limit and Reduce Red Tape, which broadly considered regulatory burden in Australia and the Government’s deregulation agenda (but did not specifically address the communications sector).14 The Select Committee concluded that, while the Government had shown a commitment to deregulation and red tape reduction, ‘the business sector unequivocally argues that the Deregulation Agenda is yet to deliver the substantive outcomes it set out to achieve’.15 It made a number of recommendations for further reforms to limit and reduce regulation which included ‘a whole-of-government stocktake of Commonwealth regulation every three years’.16

Committee consideration

Senate Standing Committee for the Selection of Bills The Senate Selection of Bills Committee previously recommended that both the 2015 Bill and the 2018 Bill not be referred to a committee for inquiry.17 On 14 November 2019, it also recommended that the Bill not be referred to a committee.18

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) has raised a number of issues regarding the Bill and the previous versions of the Bill. These are noted in the key issues and provisions section for the relevant Schedules below.

Policy position of non-government parties/independents

Australian Labor Party Labor supported the passage of the Bill in the House of Representatives, but criticised the scope of the amendments and the time taken to pass reforms in the communications portfolio. The Shadow Communications Minister, Michelle Rowland MP, commented:

[T]his is a straightforward bill that forms part of a rudimentary housekeeping exercise. As such, Labor will not oppose this bill. But the reality is this: these amendments actually do little to reduce the cost of regulation on the broadcasting or telecommunication sectors. As I noted earlier, the government has actually spent the last three years increasing the regulatory burden on telecommunications companies, and this bill does nothing to reverse that trend. While earlier deregulation bills actually did deliver more

12. M Fifield (Minister for Communications), Regulation reform agenda continues to benefit the communications sector, media release, 2 December 2015. See also Department of the Prime Minister and Cabinet (PM&C), Annual red tape reduction report 2015, PM&C, Canberra, 2016, p. 11.

13. Ibid. 14. Senate Select Committee on Red Tape, Policy and process to limit and reduce red tape: final report, Senate, Canberra, December 2018. 15. Ibid., p. 24. 16. Ibid., p. vii. 17. Senate Standing Committee for Selection of Bills, Report, 1, 2016, The Senate, Canberra, 4 February 2016; Senate Standing

Committee for Selection of Bills, Report, 5, 2017, The Senate, Canberra, 11 May 2017. 18. Senate Standing Committee for Selection of Bills, Report, 8, 2019, The Senate, Canberra, 14 November 2019.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 7

significant cost savings for industry, in comparison this bill looks by and large inconsequential. What we would like to see is the government developing a genuine and timely reform agenda to advance the interests of citizens, consumers and the communications sector. 19

Labor moved a second reading amendment which highlighted its concerns with the communications sector in the context of the Bill. These concerns included a lack of substantial reform in the portfolio, funding cuts to public broadcasting and a lack of progress in spectrum reform. However, this proposed amendment was negatived.20

Australian Greens The Australian Greens do not appear to have commented on the Bill or the 2018 Bill. When the 2015 Bill was before the Parliament, former Australian Greens Senator Scott Ludlam indicated his party was likely to support the passage of that Bill:

It appears to the Australian Greens that this is basically housekeeping. It is an omnibus bill that sweeps up a number of different areas, particularly, streamlining the broadcast licensing regime; removing some of the licensing categories that I understand have never in fact been used in the entire time that they have been on the statute books; and maybe allowing ACMA to target its limited resources a little bit more directly at the areas where it needs to wave a stick or intervene.

The amendments on the telecom side around the ACMA and the ACCC's powers also appear to the Australian Greens to be reasonably sensible—again, streamlining recordkeeping, removing tariff fixing directions powers and a number of other fairly innocuous amendments, as far as we have been able to ascertain. I might put a couple of questions to the minister on the numbering arrangements when we get to the committee stage, but again I do not think there is anything here that we need to detain the Senate with overlong. This is sensible legislation that will clean up provisions that are either impediments to smooth functioning of the telecommunications and broadcast sector or are in fact completely redundant and have been placed in the statutes back in the mists of time and clearly have not been used and have not been all that necessary.

21

Minor parties/independents Other minor parties and independent members and senators do not appear to have commented on the Bill at this stage.

Position of major interest groups There appears to have been little commentary made by the telecommunication and broadcasting stakeholders regarding the Bill or its previous iterations. The proposed change to an industry-managed telephone numbering management framework has prompted a proposal by the Communications Alliance to become the numbering scheme manager. The Australian Communications Consumer Action Network has indicated it is willing to support this approach with some conditions. These matters are detailed in the key issues and provisions section concerning Schedule 6 below.

19. M Rowland, ‘Second reading speech: Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019’, House of Representatives, Debates, (proof), 25 November 2019, p. 103. 20. Australia, House of Representatives, Votes and proceedings, (proof), 28, 2019-20, 25 November 2019, pp. 419-420. 21. S Ludlam, ‘Second reading speech: Communications Legislation Amendment (Deregulation and Other Measures) Bill 2015,

Telecommunications (Numbering Charges) Amendment Bill 2015’, Senate, Debates, 22 February 2016, p. 586.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 8

Financial implications The Explanatory Memorandum states that the Bill will not have ‘a significant impact on Commonwealth expenditure or revenue’.22 Presumably, the proposed efficiencies for regulatory agencies may positively benefit the Commonwealth and telecommunications and broadcasting industry stakeholders.

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.23

Parliamentary Joint Committee on Human Rights At the time of writing, the Parliamentary Joint Committee on Human Rights (PJCHR) has not considered the Bill. The PJCHR considered that the previous iterations of the Bill did not raise human rights concerns.24

Key issues and provisions

Schedule 1-Streamlining Regulation

Control notification requirements Part 5 of the BSA outlines the rules regarding control of commercial television and radio broadcasting licences, datacasting transmitter licences and newspapers that are ‘associated’ with commercial television or radio broadcasting licence areas (known as regulated media assets).

This Part of the BSA requires that certain persons must notify ACMA when changes to the control of regulated media assets occur. Section 63 of the BSA requires individual licensees and publishers to notify ACMA within ten business days when a person becomes, or ceases to be, in a position to exercise control of the licence or newspaper. Section 64 requires the person who comes into a position of control of a regulated media asset also to notify ACMA within ten business days of the change.

While these requirements are directed to different entities, the Explanatory Memorandum characterises them as ‘unnecessarily duplicative, requiring that the ACMA be notified twice about the same change in control of the regulated media asset’.25 Accordingly, item 1 repeals section 64 and items 2, 3, 4 make consequential amendments.

Classification Section 123 of the BSA requires that industry 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.

22. Explanatory Memorandum, op. cit., p. 4. 23. The Statement of Compatibility with Human Rights can be found at pages 5-8 of the Explanatory Memorandum to the Bill. 24. Parliamentary Joint Committee on Human Rights (PJCHR), Human rights scrutiny report, 4, 2017, 9 May 2017, p. 74; PJCHR, Human rights scrutiny report, 3, 2016, 2 February 2016, p. 1.

25. Explanatory Memorandum, op. cit., p. 11.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 9

Under subsections 123(3A), (3B), (3C) and (3D), these industry codes of practice must require that those licensees and providers apply the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995 (Classification Act) when broadcasting films, rather than the code-based television classification guidelines that apply to other television programmes broadcast. The Explanatory Memorandum observes that ‘the film and television classification schemes have converged to the point that they are largely the same’:

Duplicative 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 … 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.

26

Item 5 of Schedule 1 will repeal subsections 123(3A) to (3D) removing the application of the Classification Act to films broadcast on television by these licensees. Items 6-8 of Schedule 1 propose to repeal licence conditions that place restrictions on broadcasters in relation to the airing of films that have been classified as RC (Refused Classification), X18+ or R18+ by the Classification Board. With the repeal of the licence conditions, breaches in relation to the airing of these types of films will be treated as code of practice breaches, rather than licence condition breaches.

Disposal of NBN Co non-communication goods Part 2 of the NBN Companies Act includes restrictions on the operations of NBN corporations. In particular, section 19 provides that an NBN corporation must not supply goods that are not for use in connection with the supply by an NBN corporation of an eligible service. The Explanatory Memorandum notes:

This restriction means that currently an NBN corporation cannot sell off surplus assets (like office equipment and 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. 27

Item 9 repeals section 19 and substitutes proposed section 19 which will narrow this restriction to allow an NBN corporation to supply goods where it did not obtain the goods for the purpose of supplying the goods or where it considers the goods to be excess to requirements.

When this amendment was proposed in the lapsed Telecommunications Legislation Amendment (Access Regime and NBN Companies) Bill 2015 (Access Regime Bill), some industry stakeholders were wary of changes to NBN Co’s legislative business activity restriction.28 For example, a submission from the Competitive Carriers Coalition acknowledged that while NBN should be able to dispose of surplus goods, the business restrictions were put in place to ensure the company provided specific services. It stated:

26. Ibid., p. 12. 27. Ibid., p. 13. 28. Parliament of Australia, ‘Telecommunications Legislation Amendment (Access Regime and NBN Companies) Bill 2016 homepage’, Australian Parliament website.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 10

Once it has rolled out in a location, NBN enjoys a powerful monopoly over access to fixed line communications services to consumers in those locations … NBN should remain strictly focused on the purpose for which it was created—addressing areas of market failure in wholesale markets. 29

Admissibility of evidence Under section 521 of the Telecommunications Act, ACMA has substantial information-gathering powers to obtain information and documents from carriers and service providers. A person who contravenes a requirement in an ACMA notice under section 521 may be subject to a civil penalty.30 This can be dealt with under section 570 which provides for pecuniary penalties payable for contraventions of civil penalty provisions. Section 524 provides for the application of the privilege against self-incrimination for persons required to provide information, evidence or documents to the ACMA under section 521.

Item 10 corrects an error in paragraph 524(2)(d) of the Telecommunications Act. The amendment provides that information or evidence provided to ACMA is not admissible in evidence against the individual in ‘proceedings under section 570 other than proceedings for recovery of a pecuniary penalty in relation to a contravention of section 521’ (underlined words inserted).

Submarine communications cable protection zones Under the Telecommunications Act, ACMA can declare by legislative instrument protection zones for submarine communications cables installed, or proposed to be installed in Australian waters.31 In so doing, currently ACMA is required to consult with an advisory committee.32 The advisory committee may make recommendations in relation to ACMA proposals regarding protection zones. If the advisory committee does not make recommendations in relation to a proposal the committee must give the ACMA a statement setting out the opinion of each committee member in relation to the proposal.33 Items 11-17 of Schedule 1 will remove a requirement for ACMA to consult with such an advisory committee in relation to these proposals.

The Explanatory Memorandum states:

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 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.

34

29. Competitive Carriers’ Coalition, Submission to Senate Environment and Communications Legislation Committee, Inquiry into Telecommunications Legislation Amendment (Access Regime and NBN Companies) Bill 2015, [submission no. 4], 2015, p. 6. 30. Failure to comply would be a breach of licence conditions, which is a civil penalty provision—see section 68 and clause 1 of Schedule 1 to the Telecommunications Act 1997. 31. Schedule 3A of the Telecommunications Act. 32. Clause 16 of Schedule 3A to the Telecommunications Act. The definition of ‘advisory committee’ means an advisory

committee established by section 58 of the Australian Communications and Media Authority Act 2005. 33. Subclauses 16(2) and (3) of Schedule 3A to the Telecommunications Act. 34. Explanatory Memorandum, op. cit., p. 14.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 11

Schedule 2-Broadcasting licensee support payments One of the purposes of the Broadcasting Reform Act was to establish a transitional support payment scheme for commercial broadcasters during the transition to the interim transmitter licence tax arrangements. In particular, a number of listed companies were to be paid financial assistance for each financial year during 2017-18 to 2021-22.

Item 1 of Part 1 of Schedule 2 amends the amount to be paid to Network Investments Pty Ltd from $632,000 to $819,000. The Minister for Communications, Paul Fletcher’s second reading speech observed that ‘one of Network Investments' transmitters was inadvertently excluded in the model used to calculate the payments’. He stated ‘Schedule 2 of the bill corrects this error, and Network Investments will be no worse off as a result of the transition from a revenue-based broadcasting licence fee to an interim broadcasting-spectrum tax arrangement’.35

Part 2 of Schedule 2 makes a number of amendments to the Broadcasting Reform Act to allow for supplementary transitional support payments to be made to Network Investments Pty Ltd to account for the financial years in which the lower payment was made.

The amendments made by Schedule 2 were not contained in the 2018 Bill or the 2015 Bill.

Schedule 3-Monitoring of the telecommunications industry Part XIB of the Competition Act sets out the obligations which apply to the telecommunications industry with regards to anti-competitive conduct and record-keeping.

Item 3 of Schedule 3 proposes to repeal Divisions 4 and 5 of Part XIB. Division 4 of Part XIB allows the Australian Competition and Consumer Commission (ACCC) to collect certain tariff information from telecommunications carriers and carriage service providers (CSPs) that hold a substantial degree of power in the market. Division 5 sets out the tariff filing requirements that apply specifically to Telstra.

The Explanatory Memorandum characterises the requirements to provide tariff information under Divisions 4 and 5 of Part XIB as imposing an ‘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.

36

Division 6 of Part XIB currently provides that the ACCC can make rules to require carriers and CSPs to keep and retain records and to provide reports on certain matters. These include ascertaining whether the ‘competition rule’ has been, or is being, complied with or whether tariff filing directions have been, or are being, complied with (subsection 151BU(4)).37 The ACCC introduced record keeping rules (Division 12 Record-Keeping and Reporting Rules) in December 2004 under

35. P Fletcher, ‘Second reading speech: Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019’, House of Representatives, Debates, 16 October 2019, p. 4245. 36. Explanatory Memorandum, op. cit., p. 19. 37. The ‘competition rule’ is contained in section 151AK of the Competition Act and states that ‘a carrier or carriage service

provider must not engage in anti-competitive conduct’. The circumstances in which a carrier will engage in anti-competitive conduct are set out at section 151AJ.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 12

Division 12 of Part XIB and it has revised these rules on a number of occasions in response to changes in industry trends.38

Item 5 of Schedule 3 will insert proposed subsections 151BU(4A) and (4B) to make it a formal requirement that the ACCC review its record-keeping rules within one year of commencement of the Bill and then at least once every five years to ensure that they ‘remain up-to-date, reflect changing markets and consumer behaviour and minimise the regulatory burden on industry’.39 In reviewing the rules the ACCC would need to take into account whether information is publicly available, whether consumer demand for goods and services about which the information relates has changed and what use the information will be for consumers, industry, the Minister and the Parliament.

Under section 151CL of the Competition Act, the ACCC must review and report each financial year to the Minister on competitive safeguards within the telecommunications industry. Items 22-25 of Schedule 3 will amend section 151CL regarding the release of these reports. Instead of being required to provide it to the Minister (and subsequently the Minister being required to provide the report to the Parliament), the ACCC will be required to publish the reports on its website as soon as practicable, but no later than six months after the end of the financial year. The Explanatory Memorandum states:

This requirement would enable market information contained in the report to be made available to the public, the telecommunications industry and Parliamentarians in a timelier manner. The report provides an overview of market developments and industry compliance. The report would be more valuable if it is made widely available quickly… The proposed amendment would also align with the movement towards publishing online industry information collected by agencies.

40

Division 12 of Part XIB of the Competition Act (which consists solely of section 151CM) requires the ACCC to monitor charges paid by consumers for listed carriage services and goods and services used in connection with those carriage services. The ACCC must provide a report each financial year on these matters and include in the report information on Telstra’s compliance with the price control arrangements under Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999. The report must be provided to the Minister and tabled in each House of the Parliament.

Items 26 and 27 of the Schedule 3 amend the ACCC’s monitoring and reporting function with the intention to deliver a ‘more flexible regime’.41 As amended, section 151CM will require the ACCC to monitor, and report each financial year on charges paid by consumers in the telecommunications market. However, the ACCC will have discretion as to which charges to monitor and report on ‘having regard to which goods or services are most commonly used by consumers’. Instead of providing the report to the Minister and the Parliament, the ACCC will be required to publish the report on its website as soon as practicable and no later than six months after the end of the financial year concerned.

Section 105 of the Telecommunications Act requires ACMA to monitor, and report, each financial year to the Minister on all significant matters relating to the performance of carriers and carriage service providers with particular reference to: consumer satisfaction; consumer benefits; and

38. Australian Competition and Consumer Commission (ACCC), ‘Division 12 Record Keeping Rule’, ACCC website. 39. Explanatory Memorandum, op. cit., p. 20. 40. Ibid., p. 21. 41. Ibid., p. 22.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 13

quality of service. Items 29-31 will amend section 105 to limit the scope of the ACMA report required under that section. Under amended section 105, ACMA will only be required to monitor and report on:

• the operation of Part 14 of the Telecommunications Act (which deals with National Interest Matters) and on the costs of compliance with the requirements of 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).

The Explanatory Memorandum outlines the policy rationale for this change:

When first introduced, the requirement for an annual ACMA report under section 105(1) provided 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 no longer compelling, 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 would provide the most benefit to government and industry.

42

Consistent with the other amendments in Schedule 3, reports would no longer be provided to the Minister. Instead, ACMA would be required to publish reports on its website ‘as soon as practicable and no later than 6 months after the end of the financial year’ (proposed subsection 105(6)).

Scrutiny Committee While the structure and ordering of the provisions in Schedule 3 of the Bill has changed from the earlier 2018 Bill, the amendments made appear to be the same. In relation to the 2018 Bill, the Scrutiny Committee highlighted that amendments in Schedule 3 ‘propose to remove requirements in the [Competition Act] and the [Telecommunications Act] for the Minister to table documents in Parliament …’. It stated:

While the bill ensures that some of this information will be published online, the bill proposes to remove legislative provisions which require that this information be made available to the Parliament (and therefore the public at large). The committee notes that removing the requirement for certain information to be tabled in Parliament reduces the scope for parliamentary scrutiny. The process of tabling documents in Parliament alerts parliamentarians to their existence and provides opportunities for debate that are not available where documents are only published online.

43

The Scrutiny Committee requested the Minister's advice as to why the requirement for these documents to be tabled in Parliament was proposed to be removed.44 In response, the Minister advised that the changes would ‘enable market information to be made available to the public, the communications industry and Parliamentarians sooner' and that the 'reports will also be more readily available to the public because online publication will be required'. The Minister also noted that reports on consumer safeguards in the telecommunications industry prepared by the ACCC at the direction of the Minister and annual reports concerning the operation of the ACCC and the ACMA as statutory bodies will continue to be tabled in Parliament.45

42. Ibid., pp. 22-23. 43. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2017, The Senate, 10 May 2017, p. 9 (emphasis in original). 44. Ibid., p. 10. 45. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 7, 2017, The Senate, 21 June 2017, pp. 45-46.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 14

The Scrutiny Committee requested that the key information provided by the Minister be included in the Explanatory Memorandum.46 This was added to the 2018 Bill’s Explanatory Memorandum and is contained in the Explanatory Memorandum of the Bill.47

Schedule 4-Technical amendments Schedule 4 makes minor amendments to the Australian Broadcasting Corporation Act 1983 (ABC Act), the Special Broadcasting Service Act 1991 (SBS Act) and the BSA to repeal redundant provisions, provide consistent use of terms and update the use of terminology.

For example, subsection 79A(5) of the ABC Act and subsection 70A(5) of the SBS Act contain definitions of the terms ‘election’, ‘election period’, ‘Parliament’ and ‘referendum’. However, the terms are not used in the relevant sections. Items 1 and 17 of Schedule 4 will respectively repeal these definitions. Item 6 will insert a definition of broadcasting service into the SBS Act which provides it has the same meaning as in the BSA. Item 8 will change a reference to radio and television to ‘broadcasting’ in subsection 6(1) of the SBS Act which sets out the organisation’s principal function. As amended, subsection 6(1) of the SBS Act will read:

The principal function of the SBS is to provide multilingual and multicultural broadcasting and digital media services that inform, educate and entertain all Australians, and, in doing so, reflect Australia’s multicultural society.

Schedule 5-Spent and redundant legislation Schedule 5 repeals a range of communications portfolio legislation which is described as ‘spent or otherwise unnecessary’. In particular, the Explanatory Memorandum notes that as the amendments and repeals in the Amendment Acts listed in Schedule 5 have taken effect, the amending legislation is no longer required.48 The repeal of two pieces of legislation, the AUSSAT Repeal Act 1991 and the Telstra (Transition to Full Private Ownership) Act 2005, necessitates further consequential amendments in Schedule 5. Other items in Schedule 5 amend or repeal particular provisions in legislation.

Item 2 of Schedule 5 will repeal section 152ELB of the Competition Act. This section requires that before making any procedural rules, the ACCC must publish a draft of the procedural rules on the Commission’s website and invite and consider public submissions within a set timeframe (at least 30 days). The Explanatory Memorandum states:

This provision is 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. Section 17 sets out the standard consultation requirements for all Commonwealth legislative instruments.

49

However, the consultation requirements in section 17 of the Legislation Act 2003 are not prescriptive on rule-makers and section 19 provides that a failure to consult by a rule-maker ‘does not affect the validity or enforceability of a legislative instrument’. While the repeal of section 152ELB may harmonise the Competition Act with other Commonwealth legislation rule-making

46. Ibid., p. 47. 47. Addendum to the Explanatory Memorandum, Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017, pp. 3-4; Explanatory Memorandum, op. cit., p. 23. 48. Explanatory Memorandum, op. cit., p. 26. 49. Ibid., pp 27-28.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 15

provisions, it would appear to remove specific requirements for public consultation in the making of procedural rules by the ACCC.

The Scrutiny Committee commented on this issue in the context of the 2015 Bill. It noted that the consultation requirements in the Legislation Act (then titled the Legislative Instruments Act 2003) were less prescriptive and leave more discretion to the rule-maker about what level of consultation is required. The Scrutiny Committee therefore sought advice from the Minister about what had led to the conclusion that section 152ELB was unnecessary.50

In reply the Minister considered that one of the significant benefits of the Legislation Act is that it does not purport to prescribe in detail exactly how consultation should occur, which provides for consultation that is both targeted and flexible ‘to ensure that the consultation meets the needs of stakeholders and also that unnecessary costs to the Government and stakeholders are minimised’.51

However, the Scrutiny Committee stated that ‘while repealing the current bespoke consultation requirements in favour of the general consultation requirements in the [Legislation Act] may allow for increased flexibility, the committee reiterates its comments …’.52 It also requested additional material be added to the Explanatory Memorandum. This was added by the Government to the 2015 Bill’s Explanatory Memorandum and has been included in subsequent versions of the Explanatory Memoranda.53

Nonetheless, the Scrutiny Committee repeated its concerns on this matter in relation to the 2018 Bill.54 It stated:

The committee takes this opportunity to reiterate where the Parliament delegates its legislative power in relation to significant regulatory schemes the committee considers that it is appropriate that specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) are included in the bill and that compliance with these obligations is a condition of the validity of the legislative instrument.

55

Further additional material was added to the Explanatory Memorandum for the 2018 Bill at the request of the Scrutiny Committee which has been repeated in the Bill’s Explanatory Memorandum.56

Schedule 6-Numbering arrangements The regulation and organisation of numbering has been the responsibility of ACMA. Under the Telecommunications Act, ACMA is required to make a plan which deals with the numbering of telecommunications carriage services and the use of numbers in connection with the supply of these services.57 The Telecommunications Numbering Plan 1997 specifies rules for the allocation, transfer, surrender, portability and use of different types of numbers in connection with the

50. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 1, 2016, The Senate, 3 February 2016, pp. 6-7. 51. Senate Standing Committee for the Scrutiny of Bills, Report, 2, 2016, The Senate, 24 February 2016, pp. 60-61. 52. Ibid. 53. Addendum to the Explanatory Memorandum, Communications Legislation Amendment (Deregulation and Other Measures)

Bill 2015, pp. 2-3. 54. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2017, op. cit., pp. 10-11. 55. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 7, 2017, op. cit., pp. 49. 56. Addendum to the Explanatory Memorandum, Communications Legislation Amendment (Deregulation and Other Measures)

Bill 2017, pp. 4-5; Explanatory Memorandum, op. cit., pp. 27-28. 57. Section 454 of the Telecommunications Act contains a simplified outline of Part 22-Numbering of Carriage Services and Regulation of Electronic Addressing.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 16

supply of carriage services.58 Rights and responsibilities relating to numbers are contained in a number of legislative and regulatory instruments. Industry codes and guidelines and contractual arrangements between parties also affect how numbers are managed.

Schedule 6 will set up a framework under which the responsibility for numbering, with the exception of emergency numbers, may be transferred to industry and be undertaken by a numbering scheme manager (who will be approved by the Minister). The numbering scheme manager will be able to be a person or a body corporate.

Item 1 proposes to repeal the reference to ACMA’s role in regulating telecommunications numbers by means of a numbering plan in the simplified outline of the Telecommunications Act. The item will substitute the statement that the numbering of carriage services may be managed by a numbering scheme manager appointed by the Minister or administered by ACMA under a numbering plan.

Item 10 will insert a new subdivision (Subdivision AA) into Division 2 of Part 22 of the Telecommunications Act to deal with the management of the numbering scheme by the numbering manager. Proposed section 454A in this subdivision will allow the Minister to determine the numbering scheme manager by legislative instrument. Before determining the numbering scheme manager the Minister must consult with ACMA and the ACCC. It is proposed that the Minister will be able to direct the numbering scheme manager to amend the rules of the numbering scheme or to change its processes (proposed subsection 454E(1)) and that ACMA and the ACCC will also be able to give directions to the numbering scheme manager following consultation with the Minister and the manager (proposed subsections 454E(3) to (6)). The numbering scheme manager must comply with these directions (proposed subsection 454E(7)). Failure to do so could result in the imposition of a civil penalty (proposed subsection 454E(8)).

The numbering scheme manager must administer the scheme in accordance with ‘numbering scheme principles’ (proposed subsection 454C(1)).The proposed numbering scheme principles are detailed in proposed section 454C. These are extracted below:

The numbering scheme principles are as follows:

(a) there must be an adequate and appropriate supply of numbers for carriage services;

(b) future needs for numbering must be planned for, having regard to community needs, industry needs and global trends;

(c) numbering arrangements must be effective and efficient and support the effective and efficient supply of carriage services;

(d) numbering arrangements must have regard to recognised international standards and ensure that numbering in Australia operates in conjunction with international numbering arrangements;

(e) there must be fair and transparent access to numbers for all carriage service providers, and numbering arrangements must support competition in the supply of carriage services;

(f) the interests of users of carriage services must be protected, including in relation to the use and portability of numbers;

58. The current plan is the Telecommunications Numbering Plan 2015 made under section 455 of the Telecommunications Act.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 17

(g) the numbering scheme’s provisions for the portability of numbers must be consistent with any directions made by the ACCC to the ACMA under subsection 458(2) in relation to portability of numbers;

(h) the numbering scheme must support the use of emergency call services;

(i) numbering arrangements must meet the requirements of Australian law enforcement and national security agencies;

(j) numbering arrangements must provide for the collection of charges imposed under the Telecommunications (Numbering Charges) Act 1997;

(k) the Register (see section 465) must be kept up to date;

(l) the rules and processes of the numbering scheme, including a plan for numbering of carriage services:

(i) must be adhered to by the numbering scheme manager; and

(ii) must be published and available at no charge;

(m) the numbering scheme must include compliance mechanisms to provide for enforcement of scheme rules;

(n) the numbering scheme must make effective complaints processes available to both the telecommunications industry and users of carriage services;

(o) the recovery of costs in relation to the management of the numbering scheme must reasonably reflect costs and must be fair and transparent;

(p) public consultation must be undertaken before any significant change to the numbering scheme;

(q) any additional principles determined by the Minister by legislative instrument.

The Explanatory Memorandum notes that emergency numbers will remain the responsibility of ACMA given their importance to the community.59 This is reflected in item 2 which amends the definition of emergency call service in section 7 to reflect ACMA’s role and item 9 which amends section 454 to provide that ACMA will specify emergency service numbers.

Scrutiny Committee The Scrutiny Committee’s consideration of the Bill has highlighted issues with Schedule 6.

Parliamentary scrutiny and adequacy of review rights The Scrutiny Committee noted that if a numbering scheme manager is determined under proposed section 454A the scheme for the numbering of carriage services will no longer be set out in a disallowable legislative instrument. This means the scheme will no longer be subject to parliamentary scrutiny and oversight. It also raised the issue of review rights under the proposed arrangements for a numbering scheme manager:

59. Explanatory Memorandum, op. cit., p. 31.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 18

The committee … notes that the current Telecommunications Numbering Plan 2015 contains rights for both internal review of decisions by the ACMA as well as independent merits review by the Administrative Appeals Tribunal.

While the committee notes that the numbering scheme principles under proposed section 454C include that the numbering scheme must make effective complaints processes available to both the telecommunications industry and users of carriage services, there is no information on the face of the bill or the explanatory materials as to what that complaints process will entail. The committee further notes that a complaints process is quite different to a system for merits review. The latter typically provides for review by an independent tribunal or decision-maker who is empowered to make a substitute decision on the basis of their view of what the correct or preferable decision should be. It is also unclear as to whether a person will be able to seek effective judicial review of decisions made under the numbering scheme.

60

The Scrutiny Committee requested the Minister’s advice as to:

- the appropriateness of potentially removing parliamentary scrutiny and oversight of the scheme for the numbering of carriage services by providing an avenue for the scheme to be established other than by disallowable legislative instrument;

- whether judicial review and independent merits review of decisions made under a numbering scheme managed by the number scheme manager will be available; and

- the appropriateness of amending the bill to include additional guidance about what would constitute 'effective complaints processes' for the purposes of proposed paragraph 454C(2)(n). 61

Broad delegation of administrative powers The Scrutiny Committee also highlighted that proposed section 459A would allow ACMA to delegate any or all of the powers conferred on it by the numbering plan to a body corporate. It requested the Minister’s advice as to why this was necessary and ‘the appropriateness of amending the bill to provide guidance as to how a body corporate is to exercise any powers that are delegated to it’.62

At the time of writing this Digest, the Minister’s response had been received but not published by the Scrutiny Committee.63

Industry and consumer group responses Communications Alliance, the peak telecommunications industry body in Australia, welcomed the proposed legislative amendments for an industry-managed telephone numbering management framework in 2015. The Chief Executive Officer, John Stanton stated:

This is a sensible deregulatory reform, toward which industry has been working with Government for some time … Similar arrangements have worked well in other countries, generating more agile, cost-

60. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 8, 2019, The Senate, 13 November 2019, p. 14. 61. Ibid., p. 15. As noted above, proposed paragraph 454C(2)(n) is the numbering scheme principle that states ‘the numbering scheme must make effective complaints processes available to both the telecommunications industry and users of carriage services’.

62. Ibid. 63. Senate Standing Committee for the Scrutiny of Bills, Ministerial responses, The Senate, Canberra, as at 26 November 2019.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 19

effective and dynamic systems for managing numbering - to the benefit of consumers and industry alike. 64

In May 2017, the Communications Alliance released a consultation paper which proposed that it should become the numbering scheme manager under the proposed reforms and outlined a possible governance model for this arrangement. The Communications Alliance (or CA) consultation paper stated:

Assuming the Bill is passed by Parliament in the near future and with little modification from its current form, CA would submit the final version of its proposal to the Minister for his consideration. The Minister would then determine, via legislative instrument, that CA would become the numbering scheme manager. This submission to the Minister would only occur after appropriate consultation is completed with regulatory and industry stakeholders and the public. This paper forms part of that consultation process.

A consequence of such a Ministerial determination would be that an industry ‘Plan for Telecommunications Numbering’ would replace the ACMA Telecommunications Numbering Plan 2015, and be managed by CA.

CA is expecting the proposal to be beneficial for both consumers and industry stakeholders because it will rationalise resources and streamline processes to reduce the costs of services to consumers, and improve the agility of industry to respond to customer needs. The new arrangements will also be less prescriptive and provide greater flexibility for adapting to future number allocation scenarios and the rapid evolution of the telecommunications market. Industry has self-interest in ensuring that number management is run in the most practical and cost effective way for the benefit of consumers and the industry.

65

64. Communications Alliance, Industry welcomes government move to facilitate an industry-based scheme to manage telephone numbering, media release, 2 December 2015. 65. Communications Alliance, Industry managed numbering arrangements: consultation paper, May 2017, p. 9.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 20

Proposed Communication Alliance governance model

Source: Communications Alliance, Industry managed numbering arrangements: consultation paper, May 2017, p. 18.

The Australian Communications Consumer Action Network (ACCAN), the peak communications consumer organisation, made a submission in response to the Communications Alliance’s consultation paper proposal. In term of the provisions of the Bill, ACCAN noted ‘there is no requirement on the numbering scheme manager to report to the ACMA on overall management of numbers under the scheme’. It stated:

ACCAN believes that the Numbering Scheme Manager must be required to provide the ACMA with at least Annual Reports that can be tabled in Parliament. Currently, ACMA’s Annual Reports contain information [on] numbering charges, numbering arrangements and numbering activities and reform. If the Minister is to be satisfied that the proposed Scheme continues to meet its principles, there must be annual and publicly available reporting against each of the principles.

66

However, ACCAN was prepared to support the development of, and management of, numbers through the establishment of a numbering scheme manager, ‘under the aegis’ of the Communication Alliance with three conditions:

• government, regulators and consumers must be members of the proposed Numbering Policy Committee (NPC)

• the Communications Alliance Board not be given authority to override policy decisions by the NPC and

66. Australian Communications Consumer Action Network, Submission to Communication Alliance Industry Managed Numbering Arrangements consultation, 27 June 2017, p. 3.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 21

• all numbering codes that concern consumers’ right to and use of numbers must be registered under Part 6 of the Telecommunications Act.67

Schedule 7-Publication requirements The amendments in Schedule 7 will amend the BSA to alter the publication requirements when ACMA changes certain standards. The Explanatory Memorandum states the amendments will provide ‘ACMA with increased flexibility to choose a method of publication that is most appropriate to reach the target audience’.68

Items 1-4 amend section 127 of the BSA which requires that if ACMA ‘determines or varies or revokes a standard’ it must publish a notice in the Commonwealth Gazette stating the standard has changed and where copies can be purchased. As amended, section 127 will not require publication in the Gazette and will change the reference to copies being ‘purchased’ to being ‘accessed’. It will also insert proposed subsection 127(2) which will require the notice to be published on ACMA’s website and ‘in one or more places that are readily accessible by the public’. An inserted note clarifies that this could mean publication on another website.

Equivalent amendments are also made by items 5-8 to clause 33 of Schedule 6 (Datacasting services) in the BSA. This clause also requires the publication of notices by ACMA when ACMA determines, varies or revokes a standard.

Schedule 8-Installation of optical fibre lines The Telecommunications Legislation Amendment (Fibre Deployment) Act 2011 amended the Telecommunications Act to insert ‘Part 20A-Deployment of optical fibre etc’. Part 20A requires that where specified new developments, or developments within an identified class, are fitted with telecommunications lines or facilities, they should be fitted with optical-fibre lines or fibre-ready facilities.

However, the obligations to install optical-fibre lines or fibre-ready facilities in Part 20A are subject to section 372J which allows NBN Co to issue ‘a written statement to the effect that neither it nor any other NBN corporation has installed, is installing, or proposes to install, optical fibre lines in the project area, or any of the project areas, for a specified real estate development project’. NBN Co can exercise this power at the request of a person or on its own initiative.

The Explanatory Memorandum states:

The provisions were intended to provide a mechanism by which developers could seek to be excused from the default obligation to install 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. Telstra may need to install cabling to fulfil this obligation. Telstra may wish to use pit and pipe to do so.

67. Ibid., p. 5. Part 6 of the Telecommunications Act deals with industry code and industry standards including compliance matters. 68. Explanatory Memorandum, op. cit., p. 40.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 22

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.

69

Item 4 will repeal Subdivision C of Division 3 of Part 20A, which contains section 372J and an associated section which requires NBN Co to maintain a register of these statements on its website. The register, contained on NBN Co’s online information concerning government policy for new developments, indicated only one statement has been registered (for the Eva Valley Project in the Northern Territory in 2015).70

Items 1-3 will make consequential amendments to Part 20A.

The Minister’s power to exempt developments from the default obligation to install fibre-ready facilities will remain.71

69. Explanatory Memorandum, op. cit., p. 42. 70. NBN Co, ‘Government policy for new developments’, NBN Co website. 71. Section 372K of the Telecommunications Act.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest.

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 23

© Commonwealth of Australia

Creative Commons

With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.

In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.

To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.

Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.

Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.

Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library’s Central Enquiry Point for referral.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.