WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
National Transmission Network Sale Bill
1997
Date Introduced: 30 October 1997
House: House of Representatives
Portfolio: Communications, the Information Economy
and the Arts
Commencement: Royal Assent
To make provision for the sale of Australia's national
transmission network.
Australia's national transmission network (NTN) carries
television and radio signals for the ABC, SBS, some commercial
radio and TV stations and community services, such as Radio for the
Print Handicapped.It includes 1197 radio and television
transmitters used to broadcast ABC and SBS radio and television
services from 547 owned and leased sites, and 520 transmitters
belonging to 167 licensed broadcasters.The facilities also house a
large number of transmitters for radiocommunications operators such
as telecommunications and mobile communications licensees (Telstra,
Optus, Vodafone), police and emergency services, paging services,
private mobile radiocommunications services, and data services.
The NTN is managed by the National Transmission Agency (NTA).The
NTA once formed part of the Department of Communications but was
established as a separate cost centre and directed to operate on a
commercial basis nearly 5 years ago.The NTA is responsible for the
technical planning, operation and maintenance of NTN facilities and
has as its objective:
Cost effective management of broadcasting transmission
facilities: to make possible reliable, high-quality reception of
national broadcasting programs by the public; and optimum use of
infrastructure funded by the Commonwealth by accommodating
transmission equipment for licensed broadcasting and
radiocommunications services.(1)
The NTA uses private contractors both to construct transmission
facilities and to operate and maintain the established network on a
day-to-day basis.
Telstra held a monopoly over the outsourced operation and
maintenance of the network but under competitive tendering now
shares the work with Broadcast Communications Ltd (BCL), a division
of Television New Zealand Australia Pty Ltd (TVNZ)(which is
majority owned by the New Zealand government).BCL holds a $A60
million contract with the NTA to operate and maintain 40% of the
network's sites in Queensland, South Australia and the Northern
Territory.
For the 1996-97 financial year the running costs of the NTA were
$9 million (1995-96 $11.5 million).Capital expenditure was $30
million (1995-96 $40 million).(2) There were 111 staff years
(1995-96 121 staff years).
Late last year the government announced that scoping studies of
the NTA were to be conducted.Those studies were undertaken by
Arthur Andersen Corporate Finance and the communications law firm,
Gilbert and Tobin in the first half of this year.On 8 July 1997,
Cabinet endorsed the sale of the NTN.
It is anticipated that BCL is a frontrunner to acquire the
network.(3) It has been reported that TVNZ has coordinated a
consortium to buy the network, although none of the details
concerning consortium partners or structures have been revealed.It
has been speculated that TVNZ through BCL will be a non-equity
player offering technical advice, design and construction services,
and operation and maintenance management.(4)
The government presently pays an amount to the NTA for the
transmission of ABC and SBS signals.The purchaser ofthe network
will be contractually bound to continue to transmission for the ABC
and SBS and certain social policy obligations for a five year
period.
The Bill consists of seven Parts.Part 1 contains the
commencement and definition provisions.
Part 2 - Sale of the National Transmission Network
Clause 7 of this Bill allows the Minister to
determine that any identified network facility which is a fixture
on non-Commonwealth land is deemed to be severed from the land and
vests in the Commonwealth. Without this provision, a landowner upon
whose land a transmission facility is situated could arguably claim
that that facility has become affixed to the person's land and
because of that it has become part of the land.The success of that
type of argument would hinge upon the matters such as the degree of
annexation (i.e. whether the facility was simply 'sitting on the
land' or whether it was in fact attached to the land) and whether
the facility was intended to become a fixture when it was placed on
the land.
Clause 9 is the operative provision which
provides for the vesting of assets and liabilities (including
rights and obligations under contracts) in the new National
Transmission Company (NTC).
As is usually the case, the vesting which occurs under
clause 9 is free of any stamp duty or other tax
which would otherwise be payable (clause 10).The
stamp duty exemption does not extend to the duty payable on the
ultimate transfer of shares in the NTC to the purchaser.That
purchaser of those shares will be obliged to pay the applicable
stamp duty.
Part 3 - Access to Services
Rather than creating a new access regime for the supply of
broadcasting services, Part 3 applies, with some
modifications, the access regime established for telecommunications
to broadcasting services.The access regime for telecommunications
is set out in Part XIC of the Trade Practices Act
1974.
Part XIC provides for the declaration by the ACCC of 'declared
services'.Carriers who provide declared services are required to
comply with certain 'standard access obligations' in relation to
those services.The terms and conditions on which those standard
access obligations are provided to service providers by carriers is
a matter of negotiation between those parties.Part XIC provides a
number of solutions where the parties to those negotiations cannot
reach agreement on terms and conditions.More detail about this
access regime can be obtained from the Bills Digest to the
Trade Practices Amendment (Telecommunications) Bill 1996
(Digest No. 89 of 1996-97).
Clause 13 of this Bill applies that access
regime to broadcasting services provided by the NTA.Under
clause 13 the telecommunications access regime has
effect as if:
- each 'nominated service' were a declared service within the
meaning contained in Part XIC,
- each provider of a nominated service were a licensed carrier,
and
- each 'nominated customer' were a 'service provider' within the
meaning contained in Part XIC.
The access regime only applies to nominated customers who are
seeking access for a nominated purpose.The nominated customers and
the relevant nominated purposes include (clause
15):
- ABC and SBS for the purposes of carriage of national
broadcasting services and access to sites and towers for purposes
connected with national broadcasting services,
- community broadcasting licensees for the purposes of supplying
the Radio for the Print Handicapped service and access to sites and
towers,
- emergency service organisations for the purposes of access to
sites or towers for purposes connected with radiocommunication
transmissions,
- commercial broadcasters for the purpose of accessing sites and
towers in connection with providing commercial broadcasting
services in declared remote areas.
Part 4 - Restrictions on transfer of assets
Clause 18 requires the NTC (or its successor)
to obtain the Minister for Communications' approval before
transferring any original asset (i.e. one that is transferred to
the NTC under clause 9) or replacement asset (i.e.
an asset which replaces an original asset).
The Minister is entitled to refuse the application on the basis
that either:
- the Minister has reason to believe the transfer may jeopardise
continued access by a nominated customer to a nominated service for
a nominated purpose, or
- any other prescribed ground that relates to matters covered by
the telecommunications power contained in the Constitution.
Part 5 - Transmitter licences
At present, the Commonwealth, in its capacity as provider of
transmission services, holds the national broadcasting service
(NBS) licence under section 100 of the Radiocommunications
Act.The National Transmission Network Sale (Consequential
Amendments) Bill 1997 amends section 100 to provide that an
NBS licence may only be held by the ABC, SBS or the
Commonwealth.
Clause 19 allows for the vesting of specified
NBS transmitter licences in the ABC and SBS.
Part 6 - Powers and immunities of NTC or declared
successor
Under section 61 of the Telecommunications Act 1997 a
carrier must, as a condition of its licence, comply with the
provisions of the Telecommunications Act 1997.
Part 1 of Schedule 3 of the Telecommunications Act 1997
accords certain rights to carriers in respect of the maintenance of
telecommunications facilities (including towers, and overhead
lines).
Clause 20 deems section 61 and Part 1 of
Schedule 3 (and some relevant administrative provisions) to apply
the NTC (or declared successor) in respect of any facilities owned
by the NTC.
Part 7 - Miscellaneous
Clause 22 allows the Minister to declare a
person to be a declared successor to the NTC.
Clause 24 provides an NTC (or declared
successor) with immunity from certain State/Territory laws in
respect of sites or telecommunications facilities which were owned
by the Commonwealth or an NTC (or declared successor) and which
were used in connection with a broadcasting service.
The remaining provisions of this part are administrative in
nature.
- Department of Communications and the Arts, Annual
Report 1996-97, page 81.
- Department of Communications and the Arts, Annual
Report 1996-97, page 81.
- The Canberra Times, 'Asset sale could cost Canberra 70
jobs', Mike Taylor, 23 March 1997.
- Independent Business Weekly, 'TVNZ eyes Aussie
transmitter', Vincent Heeringa, 24 Jan 1997.
Lee Jones
18 November 1997
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 1997
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Published by the Department of the Parliamentary Library,
1997.
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Last updated: 18 November 1997
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