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Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019

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2019

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

COMMUNICATIONS LEGISLATION AMENDMENT (DEREGULATION AND OTHER MEASURES) BILL 2019

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Communications, Cyber Safety and the Arts,

the Hon. Paul Fletcher MP)



COmmunications legislation amendment (deregulation and other measures) bill 2019

 

OUTLINE

 

The Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 (the Bill) contains a package of measures designed to minimise the regulatory burden on the broadcasting and telecommunications sectors, and to simplify regulation by removing redundant or otherwise unnecessary provisions . The amendments would contribute to productivity by cutting unnecessary red tape while maintaining important consumer safeguards.

 

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

 

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

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

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

·          other minor amendments.

 

The Bill would also:

 

·          amend the Telecommunications Act 1997 (Tel Act) and the Telecommunications (Consumer Protection and Service Standards) Act 1999 to enable the Minister to appoint an industry-based numbering manager in place of the ACMA, provided certain safeguards are met;

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

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

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

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

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

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

·          remove redundant and unnecessary legislation by repealing various spent Acts;

·          amend the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 , to increase the transitional support payments to Network Investments Pty Ltd; and

·          amend the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 in order to enable top up transitional support payments to Network Investments Pty Ltd, and to outline the conditions under which the top up payments apply.

 

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

 

 

 

 



FINANCIAL IMPACT STATEMENT

 

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

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

 

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019

 

The Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of Bill

 

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

 

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

 

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

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

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

·          other minor amendments.

 

The Bill would also:

 

·          amend the Telecommunications Act 1997 (Tel Act) and the Telecommunications (Consumer Protection and Service Standards) Act 1999 to enable the Minister to appoint an industry-based numbering manager in place of the ACMA, provided certain safeguards are met;

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

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

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

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

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

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

·          remove redundant and unnecessary legislation by repealing various spent Acts;

·          amend the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 , to increase the transitional support payments to Network Investments Pty Ltd; and

·          amend the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 in order to enable top up transitional support payments to Network Investments Pty Ltd, and to outline the conditions under which the top up payments apply.

 

Human rights implications

 

The rights of children

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

Australia is a signatory to the International Covenant on Civil and Political Rights (ICCPR).

 

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

 

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

 

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

 

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

 

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

 

Conclusion

 

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

 



 

 

ABBREVIATIONS

 

The following abbreviations are used in this explanatory memorandum:

 

 

ABC Act

Australian Broadcasting Corporation Act 1983

ACCC

Australian Competition and Consumer Commission

ACMA

Australian Communications and Media Authority

AUSSAT Repeal Act

AUSSAT Repeal Act 1991

Bill

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019

 

BSA

Broadcasting Services Act 1992

Classification Act

Classification (Publications, Films and Computer Games) Act 1995

 

Competition Act

Competition and Consumer Act 2010

CSP

carriage service provider

 

NBN

National Broadband Network

NBN Co

NBN Co Limited

NBN Companies Act

National Broadband Network Companies Act 2011

NTN Sale Act

National Transmission Network Sale Act 1998

SBS Act

Special Broadcasting Service Act 1991

TCPSS Act

Telecommunications (Consumer Protection and Service Standards) Act 1999

 

Tel Act

Telecommunications Act 1997

Telstra Transition Act

Telstra (Transition to Full Private Ownership) Act 2005

 

 



 

NOTES ON CLAUSES

 

communications legislation amendment (deregulation and other measures) bill 2019

 

 

Clause 1 - Short title

Clause 1 provides for the short title of the Act to be the Communications Legislation Amendment (Deregulation and Other Measures) Act 2019 .

Clause 2 - Commencement

Clause 2 specifies that the whole Act commences on the day it receives the Royal Assent.

Clause 3 - Schedules

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

 

Schedule 1 - Streamlining Regulation

 

Broadcasting Services Act 1992

Item 1 - Section 64

Item 2 - Section 65A (heading)

Item 3 - Section 65A

Item 4 - Section 65B

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

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

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

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

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

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

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

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

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

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

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

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

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

Accordingly, item 5 of Schedule 1 to the Bill would remove the application of the Classification Act to films broadcast on television by these licensees by repealing subsections 123(3A) to (3D). The repeal of these provisions would allow a single classification scheme for all television programs, including films. Certain classification related licence conditions would also be repealed as a result of the change (see items 6 to 8 below).

Item 6 - Paragraphs 7(1)(g) and (ga) of Schedule 2

Item 7 - Paragraph 9(1)(g) and (ga) of Schedule 2

Item 8 - Subclause 11(3) of Schedule 2

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

Items 6 to 8 of Schedule 1 to the Bill would repeal these licence conditions, in connection with the repeal of subsections 123(3A) to (3D) of the BSA under item 5 of Schedule 1, as described above. With the repeal of these licence conditions, classification-related breaches would be dealt with as code of practice breaches, rather than as licence condition breaches.

 

National Broadband Network Companies Act 2011

Item 9 - Section 19

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

This restriction, together with other restrictions in sections 9, 18 and 20 of the NBN Companies Act, limits NBN Co’s ability to exercise market power through integration in horizontal markets, or participation in downstream markets. These restrictions were also intended to focus NBN Co on achieving its core objectives.

Item 9 of Schedule 1 to the Bill would replace the current section 19 of the NBN Companies Act with a new version. The revised section would retain the existing provisions relating to goods for use in connection with supplies of eligible services, and add two new bases on which an NBN corporation would be entitled to supply such goods.

Currently an NBN corporation can only supply goods to another person if the goods are in connection with the supply, or prospective supply of an eligible service by the NBN Corporation. This restriction means that currently an NBN corporation cannot sell off surplus assets (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. The amendments made by item 9 would permit an NBN corporation to also supply goods to another person if the NBN corporation:

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

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

These amendments would allow NBN corporations to manage their asset holdings in a more efficient and financially effective manner.

 

Telecommunications Act 1997

Item 10 - Paragraph 524(2)(d)

Item 10 would correct a technical error in Part 27 of the Tel Act relating to the admissibility of certain evidence in court proceedings.

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

Paragraph 524(2)(d) is intended to provide a substantial protection against self-incrimination to individuals who are, or who constitute, carriers or carriage service providers, so that information or documents provided by such an individual under section 521 of the Tel Act can be used in civil proceedings against that individual only for failure to fully comply with section 521, but not in relation to any other civil penalty proceedings.

The intention of the provision is evidenced in the Explanatory Memorandum to the Telecommunications Bill 1996 (clause 508). However, due to a technical error in paragraph 524(2)(d), proceedings relating to section 521 are the only proceedings where the information or documents is inadmissible. This means that individuals are denied the intended effect of section 524, being to provide substantial protection against self-incrimination.

Item 10 would correct this error by inserting the words “other than proceedings” after “570” in paragraph 524(2)(d), with the effect that material referred to in paragraphs 524(2)(a) and (b) of the Tel Act would be admissible only in relevant civil proceedings against an individual for contravention of section 521.

Item 11 - Subclause 2(1) of Schedule 3A (definition of advisory committee )

Item 12 - Clause 3 of Schedule 3A

Item 13 - Clause 16 of Schedule 3A

Item 14 - Paragraph 20(a) of Schedule 3A

Item 15 - Clause 31 of Schedule 3A

Item 16 - Paragraph 34(a) of Schedule 3A

Item 17 - Clause 49 of Schedule 3A

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

Currently, before declaring a protection zone in relation to submarine cables, the ACMA is required under clause 16 of Schedule 3A to the Tel Act to refer a proposal to declare a submarine cable protection zone to an advisory committee (established under section 58 of the Australian Communications and Media Authority Act 2005 ) for consideration. The advisory committee may make recommendations in relation to the proposal, or otherwise provide details of the opinions of each committee member in relation to the proposal.

Items 11 to 17 of Schedule 1 to the Bill would make amendments to Schedule 3A to the Tel Act to remove the requirement to consult with an advisory committee before declaring, varying or revoking a submarine cable protection zone and the requirements in clause 49 relating to the composition of advisory committees established for the purposes of clauses 16 and 31 of Schedule 3A.

Requiring the ACMA to establish and consult with a formal advisory committee for the purposes of declaring, varying or revoking a submarine cable protection zone is unnecessary and adds to administrative costs. In all instances, the ACMA is obliged to consult the Environment Secretary and the public before establishing, varying or revoking a submarine cable protection zone. The ACMA can also establish an advisory committee at its own initiative if it sees this as a more cost-effective way of soliciting stakeholder feedback. The ACMA would be expected to consider any feedback obtained through consultation in making a decision to declare, vary or revoke a submarine cable protection zone.

 

Telecommunications (Consumer Protection and Service Standards) Act 1999

Item 18 - Subsection 5(2) (definition of VOIP service )

Item 18 of Schedule 1 to the Bill would amend the definitions section of the TCPSS Act to repeal the definition of a ‘VOIP service’. The expression ‘VOIP service’ was only used in section 6A of the TCPSS Act, which was repealed by the Telecommunications Legislation Amendment (Deregulation) Act 2015 (which commenced on 1 July 2015). As a consequence of the repeal of section 6A, the definition of a ‘VOIP service’ is now redundant and can be repealed.

Item 19 - Section 12D

Item 20 - At the end of section 12D

Items 19 and 20 of Schedule 1 to the Bill would amend section 12D of the TCPSS Act.

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

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

Items 19 and 20 make technical amendments to section 12D to restore a provision that was inadvertently repealed as part of the streamlining amendments made to section 12D. This provision confirms that the determination that the Minister is taken to have made under section 12A (by section 12D) is not a legislative instrument (within the meaning of the Legislation Act 2003 ). This provision is merely declaratory of the law, as the deemed determination is not an instrument in writing and is therefore not a legislative instrument for the purposes of the Legislation Act 2003 . The provision is included to assist readers. It is not an exemption from the Legislation Act 2003 .



 

Schedule 2 - Broadcasting licensee support payments

 

Part 1 - Amendments

Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017

Item 1 - Item 40 of Schedule 6 (table item 3, column headed “Amount ($)”)

The Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 (the Broadcasting Reform Act 2017) abolished broadcasting licence fees and datacasting charges and introduced an interim broadcasting spectrum tax. The Broadcasting Reform Act 2017 also established a five year transitional support payment scheme, for financial years 2017-18 to 2021-22, for 19 commercial broadcasters to make sure that the impacted broadcasters are not worse off as a result of the transition from a revenue-based broadcasting licence fee arrangement to the interim broadcasting licence tax arrangements.

Item 40 of Schedule 6 of the Broadcasting Reform Act 2017 specifies the companies entitled to the transitional support payments and payment amounts. Network Investments Pty Ltd (Network Investments) is listed as a nominated company entitled to receive a transitional support payment of $632,000 for each of the financial years 2017-18 to 2021-22. However, one of its transmitters was inadvertently excluded in the modelling used to calculate payment amounts for the purposes of the transitional support payment scheme. This means the amount in total of $632,000 is less than it should be. Network Investments should be entitled to an additional $187,000 per year for 5 years to meet the objective that it would not be worse off during the transitional years.

Item 1 of Schedule 2 to the Bill amends table item 3 of item 40 of Schedule 6. The item updates the transitional support payment for Network Investments from $632,000 to $819,000. This new amount would apply for those eligible financial years following commencement of this Act. This amendment, combined with the fact that Network Investments did not elect to opt out of receiving transitional support payments (as allowed under section 43 of the Broadcasting Reform Act 2017), would enable payment to the company of the updated amount following commencement of this Act.

 

Part 2 - Application and transitional provisions

Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017

Item 2 - Definitions

Item 2 of Schedule 2 to the Bill inserts definitions of terms relevant to Part 2 of Schedule 2 of the Bill.

Item 3 - Application provision

Item 3 of Schedule 2 to the Bill specifies the financial years that the updated payment, made by item 1 of Schedule 2, applies.

Item 4 - Supplementary transitional support payment

Item 4 of Schedule 2 to the Bill enables a supplementary transitional support payment to Network Investments. This is a top up payment for those eligible financial years in which Network Investments received the lower payment (of $632,000).

The purpose of the payment is to provide that Network Investments would receive the correct payment in full over the five year period. The payment is worked out by multiplying $187,000 (being the difference between $819,000 and $632,000) by the number of eligible financial years that Network Investments received the lower payment. The number of years Network Investments received the lower payment is worked out by counting the number of years from the year the transitional support payments commenced, being the financial year 2017 - 18, through to the financial year prior to the commencement of Item 1 of Schedule 2 to the Bill.

Items 4(3) and (4) of Schedule 2 to the Bill specify conditions that the supplementary transitional support payment would be subject to. The payment is subject to Network Investments spending the money in connection with the provision of broadcasting services, authorized by the commercial broadcasting license, and spending the money by the end of the next financial year following the commencement of the Bill. Network Investments must also provide a written statement to the Secretary declaring it has complied with the condition outlined in subitem 4(3) no later than 28 days after the end of the financial year following the commencement financial year.

Item 4(2) of Schedule 2 to the Bill specifies that if Network Investments ceases to be the holder of the commercial television broadcasting licence in a financial year that is covered by the supplementary transitional support payment, Network Investments must, if determined by the Secretary, repay the amount, relevant to the financial year it ceased to be the holder of a licence, pro-rated on the number of days in the year which Network Investments did not hold a commercial television broadcasting licence.

Item 4(5) of Schedule 2 to the Bill specifies that if a company does not fulfil the conditions for payment outlined at subitems 4(3) or 4(4) the Secretary may issue a determination specifying the amount the company must repay. Item 4(8) of Schedule 2 to the Bill outlines that the amount payable by the company is a debt due to the Commonwealth and may be recovered by the Secretary (on behalf of the Commonwealth) in the Federal Court of Australia, the Federal Circuit Court of Australia or a court of a State or Territory that has jurisdiction in relation to the matter. Item 4(6) outlines that the amount specified as the repayment by the Secretary under subitem 4(5) must not be more than the amount of the payment. An amount greater than what was paid cannot be recovered.

Item 4(7) specifies that the determination made under subitem 4(5) is not a legislative instrument. This provision is declaratory and included to assist readers, as the determination of liability to pay is not actually a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 .

Item 5 - Delegation by the Secretary

Subitem 5(1) of Schedule 2 to the Bill enables the Secretary to delegate any or all of their powers under Part 2 to an Senior Executive Services (SES) employee or acting SES employee in the Department. This delegation power is for administrative convenience.

A note is included after subitem 5(1) to remind readers that the expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901 . Subitem 5(2) requires any delegate of the Secretary to comply with directions of the Secretary.

 

 

An example of the application of Schedule 2 to the Bill
 
 Below provides an example of how Part 1 and Part 2 of Schedule 2 to the Bill applies to Network Investments if the Bill passes, for example, in March 2020 (i.e. during the 2020-2021 financial year).
 
 Network Investments would be entitled to a transitional support payment of $819,000 in each of the financial years 2020-2021 and 2021-2022. 
 
 Network Investments would also be entitled to a supplementary transitional support payment of $561,000 in 2020-2021 (being the sum of $187,000 x 3 - which is a top up payment for the missed transmitter in the financial years 2017-2018, 2018-2019, 2019-2020). 
 
 As a result, in the financial year 2020-2021, Network Investments would be entitled to receive a payment of $1,380,000, subject to all applicable conditions. Network Investments must spend this amount before the end of 30 June 2021, being the end of the financial year 2020-2021, and notify the Secretary in writing before 28 July 2021 that it spent the amount on broadcasting services authorised by its television broadcasting licence.

 

Schedule 3 - Monitoring of the telecommunications industry

 

Competition and Consumer Act 2010

Item 1 - Section 151AA

Item 2 - Section 151AB (definition of tariff filing direction )

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

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

Item 3 - Divisions 4 and 5 of Part XIB

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

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

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

The requirement to provide tariff information under Divisions 4 and 5 of Part XIB imposes unnecessary regulatory burden on business. The information captured by these Divisions is readily available to the ACCC through other avenues, including through public sources, and in this circumstance requiring the information be provided directly by carriers and CSPs to the ACCC is unduly burdensome for industry. It is also apparent that the tariff information provided under these Divisions is of limited benefit in assisting with ACCC investigations of potential anti-competitive conduct within the telecommunications industry.

Item 3 of Schedule 1 to the Bill would therefore repeal Divisions 4 and 5 of Part XIB of the Competition Act.

Item 5 - After subsection 151BU(4)

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

The ACCC has made the Division 12 Report Record-Keeping and Reporting Rules (Division 12 Rules) under section 151BU of the Competition Act to collect information from certain service providers for the purposes of monitoring and reporting to the Minister under Division 12 of Part XIB on charges paid by consumers for listed carriage services and ancillary goods and services (see items 26 and 27 below). Further information, including the text of the Division 12 Rules is made publicly available by the ACCC.

Item 5 of Schedule 3 to the Bill would insert new subsections 151BU(4A) and (4B) requiring the ACCC to review any record keeping rule relevant to the operation of Division 12 every five years, with the first review to occur within a year of the commencement of subsection 151BU(4A). In reviewing the rules, the ACCC would be required to have regard to:

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

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

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

The requirement for periodic review is intended to provide that relevant record-keeping rules remain up-to-date, reflect changing markets and consumer behaviour and minimise the regulatory burden on industry (for example, by excluding information that is otherwise publicly available).

The new requirement represents a statutory minimum level of review but would not prevent the ACCC from undertaking more regular reviews if circumstances warrant.

Item 6 - Division 7 of Part XIB (heading)

Item 7 - Section 151BW (heading)

Item 8 - Section 151BW

Item 9 - Section 151BX (heading)

Item 10 - Paragraphs 151BX(1)(a), (b) and (c)

Item 11 - Paragraph 151BX(3)(b)

Item 12 - Paragraph 151BX(4)(b)

Item 13 - Paragraph 151BX(5)(a)

Item 14 - Subsection 151BX(5)

Item 15 - Section 151BZ (heading)

Item 16 - Paragraphs 151BZ(1)(a), (b) and (c)

Item 17 - Subsection 151BZ(2)

Item 18 - Paragraphs 151CA(1)(a) to (f)

Item 19 - Subsection 151CD(1)

Item 20 - Subsection 151CI(3)

Item 21 - Paragraph 151CJ(1)(d)

Items 6 to 21 of Schedule 3 to the Bill would make minor technical amendments to Divisions 7 and 10 of Part XIB of the Competition Act as a consequence of the repeal of Divisions 4 and 5 of Part XIB proposed by item 3 of Schedule 3, as described above. The amendments in items 6 to 21 would remove references to tariff filing directions and also references to specific legislative provisions contained within Divisions 4 and 5 of Part XIB.

 

 

Item 22 - Subsection 151CL(1)

Item 23 - Subsection 151CL(2)

Item 24 - Subsection 151CL(5)

Item 25 - Subsection 151CL(6)

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

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

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

Items 22 and 23 of Schedule 3 to the Bill would remove the requirement that the ACCC provide the report prepared under subsection 151CL(1) to the Minister. The ACCC would instead be required to publish the report on its website as soon as practicable, but no later than 6 months after the end of the financial year.

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 current tabling process means that by the time the report becomes publicly available, much of the information it contains is dated. For example, the report for the 2017-18 financial year was tabled and published in February 2019. This delays the public and the Parliament from reviewing the latest market information. The timely publication of the report would also assist industry participants that may rely on the reports to gather market information. The ACCC’s practice of issuing media releases upon the release of the report would help alert interested parties.

The requirement would also make the report more readily available because the ACCC would need to publish the report online. While the ACCC typically publishes the report online, it is not currently a legislated requirement. The proposed amendment would preserve the continued online availability of the report.

The proposed amendment would also align with the movement towards publishing online industry information collected by agencies. For example, in the Communications portfolio, the BSA requires the ACMA to publish on its website a copy of the annual captioning compliance reports provided by commercial broadcasting licensees, subscription television licensees and the national broadcasters.

The proposed amendment would have no impact on the requirement for the ACCC to table its annual report in Parliament.

Item 24 of Schedule 3 to the Bill would limit the requirement to table a report in Parliament to the specific circumstances outlined in subsection 151CL(3), i.e. those reports prepared by the ACCC where directed to do so by the Minister.

Item 25 of Schedule 3 to the Bill would repeal subsection 151CL(6), which provides that section 151CL applies to financial years ending on or after 30 June 1998. This provision is redundant and may be removed.

Item 26 - Subsection 151CM(1)

Item 27 - Subsections 151CM(2) to (5)

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

Items 26 and 27 of Schedule 3 to the Bill would amend the scope of the ACCC’s monitoring and reporting function under subsection 151CM(1) to insert a more flexible regime in recognition of the fact that current monitoring and reporting obligations, applying largely to carriers and carriage service providers but not necessarily to emerging or new entrants and services, may provide only a limited picture of the contemporary telecommunications market.

The ACCC would be empowered to decide which charges to monitor and report on, having regard to which goods or services are most commonly used by consumers (rather than being obliged to report on the matters currently listed in subsection 151CM(1)). The ACCC would no longer report to the Minister, and the report would no longer be tabled in Parliament, but instead the ACCC would be required to publish the report on its website as soon as practicable but no later than 6 months after the end of the financial year. The ACCC would be able to publish the reports required under sections 151CL and 151CM online together, at the same time. The reason for amendment is the same as amendments to section 151CL set out in items 22 and 23 of Schedule 3 above.

 

Telecommunications Act 1997

Item 28 - Section 104

Item 29 - Subsections 105(1) to (4)

Item 30 - Subsection 105(5A)

Item 31 - Subsections 105(6) to (8)

Item 29 of Schedule 3 to the Bill would repeal subsections 105(1) to (4) of the Tel Act.

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

When first introduced, the requirement for an annual ACMA report under section 105(1) 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.

Accordingly, items 29 and 30 would limit the scope of the ACMA report under section 105 to the operation of Part 14 (National Interest Matters) of the Tel Act and the costs of compliance with that Part and the costs of compliance with the requirements of Part 5-1A of the Telecommunications (Interception and Access) Act 1979 (regarding data retention). These items also remove the requirement that the ACMA provide the report prepared under subsection 105(1) to the Minister.

Item 28 of Schedule 3 to the Bill would amend the simplified outline to reflect the amendments to section 105 described above.

Item 31 of Schedule 3 to the Bill would amend 105(6) to remove the requirement for the ACMA to provide the Minister with the report. Item 31 would also remove the requirement for the report to be tabled in Parliament under subsection 105(7). Instead, under the amended 105(6) the ACMA would be required to publish the report on its website as soon as practicable but no later than 6 months after the end of the financial year concerned.

This requirement would provide for the information contained in the report to be made available to the public, the communications industry and Parliamentarians in a timelier manner. The current tabling process means that by the time the report becomes publicly available, much of the information it contains may be dated. The value of the report is maximised the sooner and more widely it is made available to the public. Additionally, the ACMA’s practice of issuing media releases upon the release of the report would help alert interested parties.

The requirement would also make the report more readily available because the ACMA would need to publish the report online. While the ACMA typically publishes the report online, it is not a legislated requirement. The proposed amendment would preserve the continued online availability of the report and would have no impact on the requirement for the ACMA to table its annual report in Parliament.

Item 31 of Schedule 3 to the Bill would also remove subsection 105(8) of the Tel Act, which contains definitions used only in subsection 105(3), a provision that is proposed for repeal under the Bill.

Item 32 - At the end of section 105A

Section 105A of the Tel Act provides for the Minister to direct the ACMA to monitor and report on, specified matters relating to the performance of carriers and CSPs. Item 32 would insert new subsections 105A(3) and (4) to make it clear that the Minister’s power to direct the ACMA extends to giving directions about the form and publication of commissioned reports on specified matters.

 

 

 



 

Schedule 4—Technical amendments

Schedule 4 to the Bill would make minor technical amendments to legislation governing the national broadcasters. These amendments would provide greater consistency between the ABC Act, the BSA and SBS Act, repeal redundant provisions in the ABC Act, the BSA and SBS Act and better reflect SBS activities that are provided in the converging digital environment.

 

Australian Broadcasting Corporation Act 1983

Item 1 - Subsection 79A(5)

Item 1 of Schedule 4 to the Bill would repeal redundant definitions in subsection 79A(5) of the ABC Act. These are the definitions of ‘election’, ‘election period’, ‘Parliament’ and ‘referendum’, which are defined for the purpose of section 79A but are not used by that section. Corresponding amendments are proposed to the equivalent provision in the SBS Act, section 70A, by item 17 of Schedule 4 to the Bill, as described below.

Broadcasting Services Act 1992

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

Item 3 - Paragraph 212(1)(c)

Item 4 - Paragraph 212(3)(d)

Item 5 - Paragraph 212(3)(e)

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

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

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

 

Special Broadcasting Service Act 1991

Item 6 - Section 3

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

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

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

Item 8 - Subsection 6(1)

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

Item 9 - Paragraph 6(2)(g)

Item 10 - Paragraph 6(2)(g)

Item 11 - Paragraph 6(2)(h)

Item 12 - Paragraph 6(2)(h)

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

Item 13 - Paragraph 44(1)(b)

Item 14 - Paragraph 44(1)(b)

Item 15 - Paragraph 44(1)(c)

Item 16 - Paragraph 44(1)(d)

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

Item 17 - Subsection 70A(5)

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

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

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

 

 



 

Schedule 5 - Spent and redundant legislation

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

 

Part 1 - Repeals

AUSSAT Repeal Act 1991

Item 1 - Repeal of Acts

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

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

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

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

-           Australian Broadcasting Corporation Amendment Act 1993

-           Australian Postal Corporation Amendment Act 1994

-           Broadcasting Amendment Act 1987

-           Broadcasting Amendment Act 1990

-           Broadcasting Amendment Act 1991

-           Broadcasting Amendment Act (No. 2) 1987

-           Broadcasting Amendment Act (No. 2) 1990

-           Broadcasting Amendment Act (No. 2) 1991

-           Broadcasting Amendment Act (No. 3) 1987

-           Broadcasting Amendment Act (No. 4) 1987

-           Broadcasting and Television Amendment Act 1980

-           Broadcasting and Television Amendment Act 1982

-           Broadcasting and Television Amendment Act 1984

-           Broadcasting and Television Amendment Act 1985

-           Broadcasting and Television Legislation Amendment Act 1985

-           Broadcasting and Television Legislation Amendment Act 1986

-           Broadcasting (Foreign Ownership) Amendment Act 1990

-           Broadcasting (Ownership and Control) Act 1987

-           Broadcasting (Ownership and Control) Act 1988

-           Broadcasting Services Amendment Act 1997

-           Broadcasting Services Legislation Amendment Act 1997

-           Broadcasting Stations Licence Fees Act 1981

-           Broadcasting Stations Licence Fees Amendment Act 1983

-           Broadcasting Stations Licence Fees Amendment Act 1985

-           National Transmission Network Sale (Consequential Amendments) Act 1998

-           NRS Levy Imposition Amendment Act 1999

-           Radiocommunications (Miscellaneous Provisions) Act 1982

-           Radiocommunications (Receiver Licence Tax) Amendment Act 1992

-           Radiocommunications (Receiver Licence Tax) Amendment Act 1997

-           Radiocommunications (Test Permit Tax) Amendment Act 1992

-           Radiocommunications (Transmitter Licence Tax) Amendment Act 1992

-           Radiocommunications (Transmitter Licence Tax) Amendment Act 1997

-           Radio Licence Fees Amendment Act 1987

-           Radio Licence Fees Amendment Act 1991

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

-           Satellite Communications Amendment Act 1988

-           Telecommunications Amendment Act 1994

-           Telecommunications Amendment Act 1998

-           Telecommunications (Carrier Licence Fees) Amendment Act 1995

-           Telecommunications (Carrier Licence Fees) Amendment Act 1996

-           Telecommunications (Carrier Licence Fees) Termination Act 1997

-           Telecommunications Laws Amendment (Universal Service Cap) Act 1999

-           Telecommunications Legislation Amendment Act 1997

-           Telecommunications (Universal Service Levy) Amendment Act 1999

-           Television Broadcasting Services (Digital Conversion) Act 1998

-           Television Licence Fees Amendment Act 1987

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

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

-           Television Stations Licence Fees Act 1981

-           Television Stations Licence Fees Amendment Act 1983

-           Television Stations Licence Fees Amendment Act 1985

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

The repeal of the Telstra Transition Act necessitates two consequential amendments to the Telstra Corporation Act 1991 , which would be made by items 7 and 8 of Schedule 5 to the Bill, as described below.

 

Part 2 - Other amendments

Competition and Consumer Act 2010

Item 2 - Sections 152ELB and 152EOA

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

Section 152ELB requires the ACCC, prior to making procedural rules by legislative instrument under section 152ELA, to publish a draft on the ACCC’s website, invite people to make submissions during a period of at least 30 days and consider any submissions received.

This provision is 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.

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

Part 2 of Chapter 3 of the Legislation Act 2003 sets out a tabling and disallowance regime to facilitate parliamentary scrutiny of legislative instruments (including the degree of consultation). The consultation undertaken in relation to any legislative instrument is required to be set out in the associated explanatory statement and, accordingly, if Parliament were dissatisfied with the level of consultation undertaken in a particular case, the relevant instrument may be disallowed.

The proposed amendment forms part of a broader program of reform of statutory consultation requirements in the Communications portfolio. These reforms have been progressed over several years, including through the Omnibus Repeal Day (Autumn 2014) Act 2014 , which made similar amendments to the BSA, the Interactive Gambling Act 2001 , the Radiocommunications Act 1992 and the Tel Act. The provisions proposed to be repealed mandate a variety of inconsistent approaches with respect to the time and method of consultation. There is no policy rationale for this inconsistency, which introduces unnecessary inflexibility and cost without corresponding benefits above those supplied by the standard consultation arrangements. The proposed amendment is intended to contribute to the underlying goal of simplifying and harmonising the law.

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

 

National Transmission Network Sale Act 1998

Item 3 - Part 5

Item 4 - Sections 25 and 27

Item 3 of Schedule 5 to the Bill would repeal Part 5 of the NTN Sale Act, and item 4 of Schedule 5 to the Bill would repeal sections 25 and 27 of that Act.

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

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

 

Telecommunications Act 1997

Item 5 - Section 582

Item 6 - After section 593

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

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

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

 

Telstra Corporation Act 1991

Item 7 - Section 3 (definition of designated day )

Item 7 of Schedule 5 to the Bill would amend the definition of ‘designated day’ in section 3 of the Telstra Corporation Act 1991 by replacing “the day declared under section 3 of the Telstra (Transition to Full Private Ownership) Act 2005 ” with “24 November 2006”.

Currently, ‘designated day’ is defined in the Telstra Corporation Act 1991 by reference to the Telstra (Transition to Full Private Ownership) Act 2005 - Designated Day Declaration 2006 (No. 1) (Declaration), made by the Minister under the Telstra Transition Act. The Declaration specifies that the designated day is 24 November 2006.

This amendment would remove the cross-reference from the Telstra Corporation Act 1991 to an instrument made under the Telstra Transition Act, consequential to the repeal of the latter Act to be made by item 1 of Schedule 5 to the Bill, as described above.

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

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

This amendment removes the cross-reference from the Telstra Corporation Act 1991 to the Telstra Transition Act, consequential to the repeal of the latter Act to be made by item 1 of Schedule 5 to the Bill, as described above.



 

Schedule 6 - Numbering arrangements

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

Numbers may be allocated to CSPs in accordance with the numbering plan or in accordance with an allocation system determined by the ACMA. The numbering plan also specifies emergency service numbers.

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

Schedule 6 provides a framework that would allow for a transition to industry-based management of numbering in response to proposals by the telecommunications industry. The management of other electronic addressing in Australia is already handled by industry, consistent with the arrangements under Division 3 of Part 22 of the Tel Act.

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

The principles presume that numbering management takes place in an open and pro-competitive telecommunications environment and seek to support and reinforce competition. The principles further promote competition by providing for a well-planned, adequate and appropriate supply of numbers and by supporting number portability (that is, the ability to retain the same number when changing service provider).

The principles also cover other consumer and public interest objectives, including: supporting the use of emergency call services; meeting the requirements of law enforcement and national security; supporting the collection of Commonwealth revenue from the use of numbering; and effective complaint handling. The principles would require the rules and processes for the numbering scheme to be transparent. Public consultation would be needed in relation to any significant changes. The Minister would be able determine additional principles for the numbering scheme by legislative instrument.

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

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

The ACMA may request information from the numbering manager for the purposes of identifying persons liable to pay a numbering charge, working out the amount of the charge or administering those charges. The provisions are designed such that the ACMA would remain responsible for the collection of numbering charges even if a numbering scheme manager was appointed.

 

Part 1 - Amendment of the Telecommunications Act 1997

Telecommunications Act 1997

Item 1 - Section 5

Section 5 of the Tel Act provides a simplified outline of the Tel Act. Item 1 amends the outline to reflect that a numbering scheme manager or the ACMA could administer numbering.

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

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

Item 4 - Section 7

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

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

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

Item 3 of Schedule 6 to the Bill would make consequential amendments to subparagraph 7(b)(v) of the definition of ‘emergency call service’ to refer to proposed subparagraphs 7(b)(iv) and (iva).

Item 4 of Schedule 6 to the Bill would insert in section 7 definitions for the expressions ‘numbering scheme’, ‘numbering scheme manager’ and ‘numbering scheme principles’.

A ‘numbering scheme’ would be defined as the scheme for planning and managing the numbering of carriage services in Australia, the use of numbers in connection with the supply of such services and the specification, allocation, and issuing of numbers for that use.

 The terms ‘numbering scheme manager’ and ‘numbering scheme principles’ are defined by reference to proposed subsections 454A(2) and 454C(2) respectively, as described in item 10 of Schedule 6 below.

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

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

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

Item 5 of Schedule 6 to the Bill would amend the definition of ‘public number’ so that it would not be limited to a number specified in the numbering plan, but include any number specified for use in connection with the supply of carriage services to the public in Australia (within the meaning of subsection 456(2)). A carriage service is supplied to the public under subsection 456(2) if:

·          it is used for the carriage of communications between two end users; and

·          each end user is outside the immediate circle of the supplier of the service.

The changes to section 285 would provide that numbers within an integrated public number database that may be used or disclosed in connection with the publication and maintenance of a public number directory are those that have been specified for use in connection with the supply of carriage services to the public (but do not include unlisted numbers). This change would cover both a number specified in the numbering plan and a number specified under the numbering scheme.

Item 6 - Subparagraph 286(c)(v)

Item 7 - Subparagraph 286(c)(vi)

Section 286 of the Tel Act provides an exception to general offences governing the primary disclosure or use of certain information and documents (including, for instance, the contents or substance of a communications that has been carried by a carriage service provider) by carriers, carriage service providers and their employees and contractors. It allows those entities to use and disclose such information and documents in the context of a call to an emergency service number.

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

Item 8 - Section 454

Item 9 - Section 454

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

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

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

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

Under proposed section 454A, the Minister may, by legislative instrument, determine that a specified person is to manage the numbering scheme. The person would be the numbering scheme manager.

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

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

Proposed section 454B would specify that determination of a person as the numbering scheme manager does not confer any property rights in numbers used in connection with the supply of carriage services in Australia.

Proposed subsection 454C(1) would state that the numbering scheme manager must manage the numbering scheme in accordance with the numbering scheme principles. Proposed section 454C(2) then sets out the principles relating to public policy objectives that an industry-based management scheme must continue to deliver and would underpin the ongoing operation of such a scheme, as follows:

·          proposed paragraph 454C(2)(a) requires that there be an adequate and appropriate supply of numbers for carriage services;

·          proposed paragraph 454C(2)(b) requires the future needs for numbering to be planned for, having regard to community needs, industry needs and global trends;

·          proposed paragraph 454C(2)(c) requires numbering arrangements to be effective and efficient and support the effective and efficient supply of carriage services;

·          proposed paragraph 454C(2)(d) requires that numbering arrangements have regard to recognised international standards and ensure that numbering in Australia operates in conjunction with international numbering arrangements;

·          proposed paragraph 454C(2)(e) requires that 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. This recognises that numbering management takes place in an open and pro-competitive telecommunications environment and should seek to support competition.

·          proposed paragraph 454C(2)(f) requires the interests of users of carriage services to be protected, including in relation to the use and portability of numbers.

·          proposed paragraph 454C(2)(g) adds a requirement that 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) of the Tel Act. Section 458(2) provides that the ACCC may give written directions to the ACMA in relation to the portability of allocated numbers.

·          proposed paragraph 454C(2)(h) requires the numbering scheme to support the use of emergency call services;

·          proposed paragraph 454C(2)(i) requires the numbering arrangements to meet the requirements of Australian law enforcement and national security agencies;

·          proposed paragraph 454C(2)(j) requires that numbering arrangements must provide for the collection of charges imposed under the Telecommunications (Numbering Charges) Act 1997 ;

·          proposed paragraph 454C(2)(k) requires the Register of allocated numbers (under section 465 of the Tel Act) to be kept up to date;

·          proposed paragraph 454C(2)(l) requires that the rules and processes of the numbering scheme, including a plan for numbering of carriage services, must be adhered to by the numbering scheme manager and be published and made available at no charge;

·          proposed paragraph 454C(2)(m) requires that the numbering scheme include compliance mechanisms to provide for enforcement of scheme rules;

·          proposed paragraph 454C(2)(n) requires the numbering scheme to make effective complaints processes available to both the telecommunications industry and users of carriage services;

·          proposed paragraph 454C(2)(o) requires that the recovery of costs in relation to the management of the numbering scheme must reasonably reflect costs and must be fair and transparent;

·          proposed paragraph 454C(2)(p) requires that public consultation must be undertaken before any significant change to the numbering scheme. Consultation would be required even in the event of a Ministerial direction under proposed section 454E to change the numbering scheme; and

·          proposed paragraph 454C(2)(q) empowers the Minister to make a legislative instrument to determine additional principles.

Proposed section 454D would allow the Minister to revoke a determination that a person is the numbering scheme manager in the circumstances set out in proposed subsection 454D(1). This power could be used where the Minister: is not satisfied the numbering scheme manager is managing the numbering scheme in accordance with the numbering scheme principles; is satisfied that doing so would be in the best interests of the telecommunications industry, users of carriage services or the general community; or is satisfied that it is in the best interests of national security.

The expectation is that a numbering scheme manager would need to continuously demonstrate that it is managing the numbering scheme in accordance with the numbering scheme principles.

Before the Minister could revoke the determination of a person as the numbering scheme manager, the Minister would be required to consult the numbering scheme manager, the ACMA and the ACCC.

Proposed section 454E would allow the Minister, ACCC or ACMA to provide directions to the numbering scheme manager. The Minister may, by legislative instrument, direct the numbering scheme manager to amend the rules or change the processes of the numbering scheme. The direction must be consistent with the numbering scheme principles. The numbering scheme manager would be required to comply with a direction under proposed subsection 454E(7) and failure to comply may attract civil penalties (proposed subsection 454 E(8)).

The ACMA or the ACCC may, by legislative instrument, direct the numbering scheme manager to do, or refrain from doing, a specified act or thing in relation to the management of the numbering scheme. Before the ACMA gives a direction under this section, it would be required to consult with the Minister, the ACCC and the numbering scheme manager. Before the ACCC gives a direction under this section, it would be required to consult with the Minister, the ACMA and the numbering scheme manager.

Proposed section 454F would enable the ACMA to make a compulsory request for information from the numbering scheme manager. The ACMA may request information to identify persons liable for a charge under the Telecommunications (Numbering Charges) Act 1997 , work out the amount of that charge or otherwise administer charges under that Act. This amendment is designed such that the ACMA can obtain the information it needs to administer numbering charges . Proposed subsection 454F(3) allows the ACMA to specify the form in which the information is required. The numbering scheme manager must comply with a request from the ACMA under section 454F (proposed subsection 454F(4)) and failure to comply may attract civil penalties (proposed subsection 454F(5)).

Proposed section 454G would enable the ACMA or the ACCC, by written notice to a person who is a CSP, carrier, or a person of a kind determined by the Minister in a legislative instrument, to direct the person to comply with a rule or process published by the numbering scheme manager. Under proposed subsection 454G(2), the person would be required to comply with the direction. Proposed subsection 454G(3) provides that failure to comply with proposed subsection 454G(2) may attract a civil penalty. Subsection 454G(4) provides that a notice given to a person in accordance with section 454G would not be a legislative instrument (within the meaning of the Legislation Act 2003 ). This provision is merely declaratory and is included to assist readers. It is not an exemption from the Legislation Act 2003 .

The direction powers of the ACMA and the ACCC are intended to protect public policy objectives associated with numbering, including during the transition to a new industry-based management scheme.

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

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

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

Item 12 - Before section 455

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

Item 13 - After section 459

Item 13 of Schedule 6 to the Bill would insert a new section 459A into Subdivision A of Division 2 of Part 22 of the Tel Act. Proposed section 459A(1) would enable the ACMA to delegate, by writing, any or all of the powers conferred on the ACMA by the numbering plan to a body corporate. Similarly, under proposed subsection 459(2) if the ACMA has delegated the power to delegate powers conferred by the numbering plan on to a Division of the ACMA, then:

·          that particular Division may delegate the power to a body corporate; and

·          subsections 52(2), (3), (4), (5) and (6) of the Australian Communications and Media Authority Act 2005 have effect as if the delegation by the Division were a delegation under section 52 (which deals with delegations by a Division of the ACMA) of the Australian Communications and Media Authority Act 2005 .

Proposed subsection 459(3) provides that the delegate is, in the exercise of a delegated power, subject to the written directions of:

·          the ACMA, if the delegation to the delegate was directly by the ACMA; or

·          the particular Division of the ACMA, if the delegation to the delegate was a sub-delegation by that Division of the ACMA.

Proposed subsection 459(4) provides that before giving a direction under subsection 459(3), the ACMA or the Division of the ACMA (as the case may be) must consult the ACCC. The powers conferred on the ACMA, or Division of the ACMA, are in addition to the powers conferred by sections 50, 51 and 52 of the Australian Communications and Media Authority Act 2005 (see proposed subsection 459(5)).

Proposed section 459A replaces existing section 467, which would be repealed by item 24 of Schedule 6 to the Bill, as described below. Enacting this section in Subdivision A makes it subject to proposed section 455A to be inserted by item 12 of Schedule 6 to the Bill, such that it would not apply if there is a numbering scheme manager.

Item 14 - After section 461

Item 14 of Schedule 6 to the Bill would insert a new section 461A into Subdivision A of Division 2 of Part 22 of the Tel Act allowing the ACMA to make urgent numbering arrangements in the absence of a numbering scheme manager. This item would provide that the ACMA is not required to comply with consultation requirements in section 460 and subsection 461(1) of the Tel Act those circumstances. For instance, the ACMA would be able to act promptly to have an amended or new numbering plan put in place if the Minister revokes the determination of a person as the numbering scheme manager.

The new or varied numbering plan made in these circumstances would have effect for 12 months after it came into operation (proposed subsection 461A(3) refers).

Proposed subsection 461A(4) makes it clear that the ACMA would not be prevented from repealing a plan made or varied by the ACMA and making another plan after complying with the consultation requirements in section 460 and subsection 461(1) of the Tel Act.

Item 15 - Before section 463

Item 15 of Schedule 6 to the Bill would insert a new section 463A into Subdivision B of Division 2 of Part 22 of the Tel Act. This Subdivision deals with the allocation system for numbers. Proposed subsection 463A(1) would specify that if there is a numbering scheme manager, the allocation system determined by the ACMA under this Subdivision may be prepared by the numbering scheme manager. Proposed subsection 463A(2) would specify that the ACMA must not determine an allocation system that does not meet the ACMA’s requirements (including in relation to the Telecommunications (Numbering Charges) Act 1997 ). Consistent with the consultation requirements contained in the Legislation Act 2003 , as the determination of the allocation system would be a legislative instrument (subsection 463(1) of the Tel Act refers). Consequently, the ACMA would also be required to provide that affected parties, including the numbering scheme manager, are consulted appropriately before making the determination.

Item 16 - At the end of section 463

Item 16 of Schedule 6 to the Bill would insert a new subsection 463(8), allowing the ACMA to delegate powers conferred on it by an allocation system to the numbering scheme manager or another person.

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

Item 18 - Paragraph 465(2)(a)

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

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

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

Item 19 - Paragraph 466(1)(d)

Item 20 - Subsection 466(2)

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

Item 22 - Subsection 466(5)

Item 23 - Subsection 466(6)

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

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

Item 24 - Section 467

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

Item 25 - Subsection 468(10)

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

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

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

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

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

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

 

Part 2 - Amendments of other Acts

Do Not Call Register Act 2006

Item 30 - Section 4 (definition of Australian number )

Item 30 of Schedule 6 to the Bill would repeal and substitute a new definition of ‘Australian number’ in the Do Not Call Register Act 2006 to reflect the potential appointment of a numbering scheme manager. The new definition would refer to a number that is for use in connection with the supply of carriage services to the public in Australia, and specified in either: the numbering scheme referred to in section 454A of the Tel Act (as managed by the numbering scheme manager where one is determined by the Minister); or the numbering plan referred to in section 455 of the Tel Act (as administered by the ACMA where there is no numbering scheme manager).

 

Telecommunications (Consumer Protection and Service Standards) Act 1999

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

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

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

Telecommunications (Numbering Charges) Amendment Act 2016

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

Item 33 of Schedule 6 to the Bill would amend the commencement provision in subsection 2(1) of the T elecommunications (Numbering Charges) Amendment Act 2016 . Item 33 would replace the existing reference to the Communications Legislation Amendment (Deregulation and Other Measures) Act 2016 in that section with a reference to the Communications Legislation Amendment (Deregulation and Other Measures) Act 2019 . This technical change reflects the fact that the Communications Legislation Amendment (Deregulation and Other Measures) Bill 2018 lapsed upon the prorogation of Parliament prior to the 2019 federal election. It is intended to provide for the commencement of the T elecommunications (Numbering Charges) Amendment Act 2016 to be linked to (and contingent upon) the commencement of the Communications Legislation Amendment (Deregulation and Other Measures) Act 2019 .

 

Part 3 - Transitional provisions

Item 34 - Delegations by ACMA

Item 34 of Schedule 6 to the Bill would specify transitional provisions relating to delegations by the ACMA. These transitional provisions would preserve the continuity of delegations made by the ACMA under subsection 467(1) or 467(1A)(a) of the Tel Act that were in force before the commencement of Schedule 6 to the Bill, so that after the commencement of Schedule 6, those delegations would have effect as if they were made under subsection 459A(1) or paragraph 459A(2)(a) respectively.



 

Schedule 7 - Publication requirements

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

 

Part 1 - Amendments

Broadcasting Services Act 1992

Item 1 - Section 127

Item 2 - Section 127

Item 3 - Paragraph 127(b)

Item 4 - At the end of section 127

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

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

Item 5 - Clause 33 of Schedule 6

Item 6 - Clause 33 of Schedule 6

Item 7 - Paragraph 33(b) of Schedule 6

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

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

Part 2 - Application provisions

Broadcasting Services Act 1992

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

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

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



 

Schedule 8 - Installation of optical fibre lines

 

Telecommunications Act 1997

Item 1 - Section 372A

Item 2 - Section 372A

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

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

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

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

The provisions were intended to provide a mechanism by which 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.

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.

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