Bills Digest no. 68 2015–16
PDF version [643KB]
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.
Dr Rhonda Jolly
Social Policy Section
21 January 2016
Contents
The
Bills Digest at a glance
Purpose of the Bill
Structure of the Bill
Background
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Committee consideration
Key issues and provisions
Date introduced: 2
December 2015
House: House of
Representatives
Portfolio: Communications
and the Arts
Commencement: The
day after the Act receives Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
Purpose of the Bill
The purpose of the Communications Legislation Amendment
(Deregulation and Other Measures) Bill 2015 is to:
-
amend administrative requirements imposed on broadcasters and
datacasting licensees
-
remove tariff filing requirements for certain carriers and carriage
service providers
-
amend the role of the Australian Communications and Media Authority
(ACMA) and the Australian Competition and Consumer Commission (ACCC) with
regards to monitoring and reporting of information and
-
allow for the telecommunications industry to develop an industry scheme
to manage telephone numbering.
The Bill also repeals redundant legislation and spent
Acts.
Background
The Bill represents part of the Government’s commitment to
reducing the cost to Australian businesses of red and green tape by repealing
legislation and regulations which it considers unnecessary and
counter-productive.
Stakeholder concerns
There has been little stakeholder comment on this specific
Bill.
Key issues
-
Most of the proposed administrative changes are non-controversial and in
general deliver more flexibility to ACMA and the ACCC in their administrative
and regulatory capacities.
-
Some aspects of the changes could be opposed because it may be argued
that rather than simplifying administration, they make it easier for industry
to disregard accepted public standards and expectations of quality of service
delivery.
The purpose of the Communications Legislation Amendment
(Deregulation and Other Measures) Bill 2015 (the Bill) is to:
-
amend what the Government has deemed are unnecessary administrative requirements
imposed on broadcasters and datacasting licensees under the Broadcasting
Services Act 1992 (BSA) to:[1]
- modify
audit requirements
- extend
the classes of people able to make statutory declarations about gross earnings
- provide
the Australian Communications and Media Authority (ACMA) with discretion with
regards to pursuing unpaid licence fees
- remove
duplicated requirements to notify ACMA about certain changes in the control of
media assets
- provide
consistent classification arrangements for all television programs and
- remove
duplication in ACMA’s complaint handling and investigation processes
-
remove what is seen as ‘unduly burdensome’ tariff filing requirements
for certain carriers and carriage service providers imposed under the Competition
and Consumer Act 2010 (Competition Act)[2]
-
amend the role of the ACMA under the Telecommunications Act 1997 and
the Australian Competition and Consumer Commission (ACCC) under the Competition
Act with regards to monitoring and reporting of information.[3]
These amendments are intended to ensure that the regime for the statutory
collection of information ‘keeps pace with changing markets and consumer
behaviour’[4]
-
amend the Telecommunications Act 1997 and the Telecommunications
(Consumer Protection and Service Standards) Act 1999 so the
telecommunications industry is able to develop an industry scheme to manage
telephone numbering (provided certain safeguards for consumers are met)[5]
and
-
repeal redundant legislation and spent Acts.
The Bill consists of six schedules:
-
Schedule 1 removes audit and reporting requirements which have been deemed
to be unnecessarily duplicative and burdensome for broadcasters.
-
Schedule 2 amends the BSA and the Australian Communications
and Media Authority Act 2005 (ACMA Act) to redefine ACMA’s
powers of investigation with regards to complaints made about commercial and
national broadcasters and datacasting services.
-
Schedule 3 removes requirements that businesses provide the ACCC with
certain tariff-related information within a specified period.
-
Schedule 4 makes technical amendments to the Australian Broadcasting
Corporation Act 1983 and the Special Broadcasting Service Act 1991
to repeal redundant provisions and provide for consistency in definitions
across these Acts and the BSA.[6]
-
Schedule 5 repeals spent and redundant legislation.
-
Schedule 6 provides a framework by which a transition can occur from the
current numbering system for carriage services that is regulated by ACMA, to a
system which is industry-managed.
Administrative efficiency
The extent to which government rules and regulation which
affect the communications sector has imposed excessively onerous burdens on the
industry has been noted and considered in a number of documents in recent times.
The final report of the Convergence Review Committee, commissioned under a
Labor Government to examine Australia’s rapidly changing media landscape, for
example, concluded that many elements of the current communications regulatory
regime are outdated and unnecessary, while other rules are becoming ineffective
as the communications landscape evolves.[7]
Soon after its election in late
2013 the Coalition Government appointed an independent body to review and
report on the performance, functions and roles of the Commonwealth Government.
The peak body for free-to-air broadcasters, FreeTV, told this body, the National
Commission of Audit (NCoA), in 2014 that the industry faced significant costs
as the result of administrative inefficiencies. Free TV listed these as ‘excessive,
onerous reporting requirements’ and ‘outdated complaints systems’.[8]
The Coalition vowed to reduce the
cost to Australian businesses of red and green tape by repealing legislation
and regulations which it considered unnecessary and counter-productive.[9] The communications portfolio was a particular target for red
tape reduction with two Department of Communications’ discussion papers
agreeing with industry that there were substantial levels of complex regulation
that may not be appropriate in a twenty first century media environment.[10]
Upon introduction of this Bill the Minister for
Communications, Mitch Fifield, commented that 2015 had delivered significant
progress in the implementation of the Government’s regulatory reform agenda in
the communications sector.[11]
The Minister added that during 2014 and 2015 the Government had introduced more
than 65 communications sector measures aimed at simplifying regulation and
removed more than 3,400 pages of unnecessary regulation. This had ‘delivered an
estimated cumulative annual savings of $340 million for businesses and
consumers in the communications sector’.[12]
Numbering Plans
Telephone numbering was introduced after it became
possible for telephone subscribers to connect to telephone exchanges outside
their area and to by-pass the assistance of an operator in doing so. Australia’s
telephone numbering has been re-organised a number of times to accommodate
increases in the numbers of subscribers and the development of new technologies.
A major re-organisation took place in the 1990s as mobile phones were first
being developed. This organisation occurred in the context of a government
desire to implement a new regulatory framework for the
telecommunications industry.
Since 1997 the regulation and organisation of numbering
has been the prerogative of ACMA when subsection 455(1) of the Telecommunications
Act 1997 required the Australian Communications Authority (now ACMA) to devise
a set of rules which regulated the use and administration of Australian
telephone numbers. This was known as the Telecommunications Numbering Plan 1997
(the Numbering Plan).[13]
Consultations on the Telephone Numbering Plan have
occurred at times since the introduction of the original Numbering Plan and a
number of revisions have been made to the Plan. The latest consultations took
place in 2012. These were in response to an ACMA discussion paper,
Telephone numbering: future directions, which articulated
ACMA’s medium to long term vision for numbering in Australia.[14] The paper proposed
changes to increase the flexibility and efficiency of numbering arrangements
and make pricing clearer for consumers.
A new version of the Plan was put in
place in March 2015.[15]
At the time of writing this Digest there appears to have
been no comments made by the non-government parties or independents on this
legislation.
There appears to have been no comments made by the
broadcasting industry in relation to the changes to be made by this Bill.
Communications Alliance, the primary telecommunications
industry body in Australia, has welcomed the introduction of this Bill and the Telecommunications
(Numbering Charges) Amendment Bill 2015, labelling them ‘sensible deregulatory
reform, toward which industry has been working with Government for some time’. [16]
The Alliance has noted that similar arrangements elsewhere
have produced ‘more agile, cost-effective and dynamic systems for managing numbering’
and this has been to the benefit of consumers and industry alike.[17]
While it appears that there has been no other comment made
in relation to the introduction of an industry‑based numbering scheme it
is worth noting that in 2012 the Australian Communications Consumer Action
Network commented on the importance of numbering policy in
achieving ‘availability, accessible and affordable services that enhance the
welfare of all Australians’.[18]
It is likely, therefore, that this group, and perhaps other consumer groups,
may want to know the details of any industry-based scheme before voicing
support for change.
It is interesting that ZOAK Solutions, the company
involved in the administration of an updated Numbering Plan introduced by ACMA
in early 2015 noted that feedback from ‘several industry participants is that
the new system provides an outstanding customer experience because it is an
intuitive system that is simple to use’.[19]
According to the Explanatory Memorandum to this Bill, it will
not have a ‘significant impact’ on Government expenditure or revenue.[20]
Presumably, given the reduced role for ACMA and the ACCC
in review and monitoring processes there will be some financial benefit to
those agencies.
In addition, given that Free TV noted in its submission to
the NCoA in 2013 that the cost to broadcasters of administering government
regulations was ‘significant’, there is likely to be at least some financial
benefits to business from a reduction in regulatory requirements.[21]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s
compatibility with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of that Act. The Government
considers that the Bill is compatible.[22]
The Statement of Compatibility
notes that the main implication for human rights in this Bill relates to the
changes to the classification provisions under Schedule 1, item 5. This item repeals subsections 123(3A) to (3D) of the BSA
so that the classification of all programs broadcast
by commercial and community broadcasters and open narrowcasting services will
solely reflect classifications under industry codes of practice. The Statement
of Compatibility argues this is not contrary to Australia’s obligations under the
Convention on the Rights of the Child as ‘the similarities that
currently exist between the film and television classification ratings frameworks mean that there will be no significant
change in a practical sense to the classification of films broadcast’.[23]
In addition, the Statement of Compatibility makes the
point that safeguards exist in the BSA so that industry codes of
practice should reflect prevailing community standards for all programs
broadcast, including films. There is further provision that if industry codes
of practice are deficient ACMA can determine programs standards.[24]
At the time of writing this Bills Digest, the
Parliamentary Joint Committee on Human Rights had not commented on the Bill.
At the time of writing this Digest the Senate Scrutiny of
Bills Committee had not commented on the Bill.
On 3 December 2015 the Senate Selection of Bills Committee
deferred consideration of this Bill to its next meeting.[25]
This section does not discuss all provisions in this Bill. For
a detailed analysis of all provisions, see the Explanatory Memorandum.
Schedule 1: streamlining
regulations
Control and declarations
Part 5 of the BSA explains the rules regarding who is
able 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 (known as
regulated media assets). This part requires that certain persons must notify ACMA
when changes to the control of regulated media assets occur.
Section 63 of the BSA requires individual licensees
and publishers to notify ACMA within ten business days when a person becomes,
or ceases to be, in a position to exercise control of the licence or newspaper.
Section 64 then requires the person who comes into a position of control of a
regulated media asset also to notify ACMA within ten business days of the
change.
Because these requirements are ‘unnecessarily duplicative’, item
1 will repeal section 64.
The current BSA requires that commercial television
and radio broadcasting licensees provide to ACMA an annual statutory
declaration of their gross earnings. Subsection 205B(4) of the BSA
requires that the statutory declaration be made by the chief executive officer
(CEO) or secretary of the licensee. Item 6 of Schedule 1 proposes to
amend the subsection so that those eligible to make a statutory declaration
concerning gross earnings will include a director of the licensee and a person
who has knowledge of the financial affairs of the licensee (and is authorised
to make the declaration by the CEO or secretary). Item 9 of Schedule 1 will
make a corresponding amendment to subsection 205BA(2) to extend the class of
office holders eligible to make a statutory declaration concerning gross
earnings in relation to a channel A datacasting transmitter licence.[26]
Classification
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.[27]
Under subsections 123(3A), (3B), (3C) and (3D), codes of
practice developed for commercial and community television broadcasting
licensees and providers of open narrowcasting television services must ensure
that those licensees and providers apply the film classification system
provided for by the Classification (Publications, Films and Computer Games)
Act 1995 (the Classification Act) when broadcasting films, rather
than the code-based television classification guidelines that apply to other
television programmes broadcast.[28]
It is argued in the Explanatory Memorandum that this situation represents yet
another unnecessary regulatory task for broadcasters as the film and television
classifications do not now differ significantly.[29]
Item 5 of Schedule 1 proposes therefore to remove the need for
broadcasters to take into account classification under the Classification
(Publications, Films and Computer Games) Act 1995 when classifying films
for viewing on commercial and community television and on open narrowcasting
services.[30]
Items 12 to 14 propose to repeal licence
conditions that place restrictions on broadcasters in relation to the airing of
films that have been classified as RC (Refused Classification), X18+ or R18+ by
the Classification Board. With the repeal of the licence conditions, breaches
in relation to the airing of these types of films will be treated as code of
practice breaches, rather than licence condition breaches.
ACMA discretion
Item 7 of Schedule 1 repeals subsection 205B(4A) of the
BSA which requires that financial documents detailing balance sheets and
profit and loss information provided to ACMA is audited. The proposed
replacement subsection gives ACMA discretion on a case by case basis to
decide if it is necessary for these documents to be audited. The new subsection
will authorise ACMA to notify licensees in writing if it requires a balance
sheet or profit and loss account sheet to be audited.
Under the BSA, a person or entity providing a
commercial broadcasting service on radio or television must hold a commercial
radio or television broadcasting licence. The Television Licence Fees Act
1964, Radio Licence Fees Act 1964 and Datacasting Transmitter
Licence Fees Act 2006, require commercial television and radio broadcasting
licensees and channel A datacasting transmitter licensees to pay licence fees.[31]
Licence fees are calculated by licensees using a formula and take into account
any rebates that may apply to particular licence categories.
ACMA then calculates if the licence fee paid is correct and
currently:
... arranges for any repayments to the licensee (in respect of
an overpayment of licence fees) or additional payments (in respect of an
underpayment of licence fees) through issuing notices to licensees in
accordance with section 205C of the BSA. Penalties for any licence fees that
are unpaid by their due date are payable under section 205D of the BSA.[32]
As the Explanatory Memorandum notes, ACMA is required under
current legislation to pursue full payment of all licence fees, even if amounts
of underpayment are insignificant. Hence, it may at times prove uneconomical
for the regulator to take action. Item 11 of Schedule 1 proposes to amend
section 205C of the BSA to provide ACMA with:
... the ability to waive the amount of license fees unpaid, and
any additional penalty fees, if the ACMA considers that it would not be
efficient to recover that amount from the licensee. However, it would be within
the discretion of the ACMA as to whether it pursues the unpaid amount (and any
related additional fees)... [33]
Comment
Schedule 1 of the Bill deals with the streamlining of ‘black
letter law’, which is described by the Department of Communications as:
... legislation as well as regulations, standards, directions
and rules made under legislation. Black letter law may apply obligations
ex‐post or ex‐ante. Compliance is compulsory and legally binding
sanctions are available to ensure compliance. Black letter law is developed,
administered and enforced by Government or a Government regulator. Industry
involvement is generally confined to consultation during the development phase.[34]
In its discussion paper released in May 2015 the Department
noted that the communications portfolio ‘includes a vast range of black letter
law provisions contained in legislation as well as subordinate instruments’.[35]
The intention of the proposed changes in Schedule 1 is to remove a number of
duplicative reporting requirements, while still providing ACMA with certain
discretion to request financial documentation. These appear to be practical
amendments that will benefit both the industry and have no foreseeable adverse
effects for the public. Indeed, for some time there have been calls for
broadcasting regulators to be given more flexibility in dealing with industry
(and imposing regulatory sanctions). During the last major update of media
regulation in 2006, for example, a report by Professor Ian Ramsay noted that
the regulator lacked access to flexible, ‘middle range’ administrative powers
and civil penalties.[36]
Areas of particular concern included the issues of late notification of licence
control and lodging of financial returns and licence fee payments. Professor
Ramsay was of the view that it was inappropriate in many instances to penalise
broadcasters for inadvertent breaches or for late payments of licence fees.[37]
While it must be noted that the major focus of the Ramsay
report was about strengthening the powers of ACMA ‘to enable it to deal more
effectively with breaches of the rules’, the report also made points which
support the types of administrative changes proposed in this Bill.[38]
These include that flexible enforcement powers are important ‘in motivating
regulated entities to have internal compliance procedures that are effective’,
they provide an environment where there is more room for manoeuvrability in
applying pressure for voluntary compliance and they encourage alternative
solutions to problems.[39]
With regards to classification, it may be that there could
be questions raised about whether it is appropriate to remove the licence
condition regarding classifying films for viewing on commercial and community
television and on open narrowcasting services. There may be cause for concern
that making breaches of classification a code of practice violation does not in
fact remove an ‘unnecessary’ task for broadcasters, rather it gives
broadcasters more opportunity to infringe requirements, reduces the possibility
that penalties will result from those infringements and may result in an increase
in complaints about breaches.
Submissions to the Australian Law Reform Commission’s
investigation into the classification system have already noted concerns about existing
television classification codes. The Australian Council on Children and the
Media (ACCM) maintained that self-regulatory codes do not stop the industry
from ‘doing what it wants’ and that if limits are needed to protect the public
interest those limits should be imposed by ‘public institutions’.[40]
The Commissioner for Children and Young People (WA) also believed that industry
codes of practice ‘are not sufficient to ensure the safety, protection and
wellbeing of children and young people’.[41]
It may be these groups will see the proposed change to the legislation as a
further opportunity for broadcasters to ‘do as they want’.
While there may be some substance to these types of claims,
it must be noted that ACMA retains the power to investigate complaints made by the public relating to industry codes
of practice (under section 148 of the BSA). See Box 1 below:
Box 1: Broadcasting Services Act 1992, section 148
If:
a) a
person has made a complaint to a provider of broadcasting services on a
matter relating to:
i)
program content; or
ii) compliance
with a code of practice that applies to those services and that is included
in the Register of codes of practice; and
b) if
there is a relevant code of practice relating to the handling of complaints
of that kind—the complaint was made in accordance with that code of
practice; and
c)
either:
i)
the person has not received a response within 60 days after making
the complaint; or
ii) the
person has received a response within that period but considers that
response to be inadequate;
the person may make a complaint to the ACMA about the matter.
|
Schedule 2: ACMA complaints
handling
Under section 147 of the BSA complaints may be made
to ACMA about offences relating to, or breaches of licence conditions. ACMA may
investigate these complaints if it chooses to do so. Under section 151 of the BSA
(Division 2, Part 11 of the BSA) a complaint can also be made to ACMA
about the Australian Broadcasting Corporation (ABC) and the Special
Broadcasting Service (SBS).If ACMA chooses to investigate the complaint and
finds it justified then it can ‘encourage’ the ABC or SBS to comply and
recommend actions the national broadcasters should take.
In addition to the power bestowed upon it under Part 11
(sections 147 to 153), ACMA is given a general power under Division 2 Part 13
of the BSA to investigate broadcasters and datacasters. The Explanatory
Memorandum to the Bill argues that as complaints of the type referred to in
Part 11 can be investigated under the general investigation powers in Part 13,
the powers in Part 11 duplicate those in Part 13. This Bill proposes therefore
to repeal Part 11 of the BSA.
It is intended that in addition to the repeal of Part 11, item
4 of Schedule 2 would then insert proposed section 170A ‘to
make clear that under Part 13 persons have the same ability to make, and the
ACMA has the same powers to investigate, complaints about licensed and national
broadcasters as were available under Part 11’.[42]
Further amendments under item 5 would insert proposed
section 171A which would make clear that investigations are at the
discretion of ACMA (proposed subsection 171A(1)) and that the regulator
must publish on its website the procedures it will usually follow in
investigating complaints, although the regulator is not prevented from adopting
different procedures in relation to a particular complaint (proposed
subsection 171A(2)).
Item 6 will insert proposed sections 181 and 181A
into Part 13 of the BSA to address actions which specifically relate to
complaints about the national broadcasters currently dealt with in Division 2
of Part 11. These proposed sections reflect current sections 150 to 153 of the BSA
by providing that unresolved complaints about code of practice violations by
the national broadcasters and complaints about failure of the broadcasters to
comply with captioning obligations in Part 9D of the BSA can be
investigated at ACMA’s discretion. As is currently the case, ACMA will be able
to recommend the action the broadcasters should take to remedy the situation
and, if this is not acted upon, make a report to the Minister.
Comment
Changes in Schedule 2 are based on a 2015 Federal Court
decision in Harbour Radio Limited v the Australian Communications and Media
Authority [2015] FCA 371 (see brief background in Box 2 below).
In this case, Justice Buchanan found that ACMA
has ‘discretion to investigate under section 170 [the general investigations
power], whereas it had an obligation to do so in an appropriate case under
section 149 [the power to investigate complaints relating to offences and breaches
of licence conditions or codes of practice]’.[43]
At the same time the Court held that the operation of sections 149 and 170 of
the BSA are not mutually exclusive. The operation of section 149 does
not prevent ACMA from also exercising the discretion afforded to it by section
170 of the BSA. In other words, there is nothing to prevent ACMA from
commencing what is called an ‘own motion’ investigation into a matter which is
already under an obligatory investigation by the Regulator under section 149.
This is essentially the basis for the contention by the Explanatory Memorandum
that Part 11 duplicates the regulator’s powers in Part 13.[44]
In proposing to repeal Part 11 and retain
Part 13 this Bill is in keeping with the Government’s stated intention of
providing the Regulator with more discretion and flexibility in handling
complaints. ACMA’s powers to deal with breaches of Codes of Practice will not
be affected by this change. The Regulator continues to have a range of powers to deal with breaches. These include requiring
broadcasters to agree to enforceable undertakings to secure future compliance
with a code or imposing additional licence conditions requiring licensees to
comply with codes.
Box 2: Harbour Radio complaints
investigations
Harbour Radio is a commercial broadcasting licensee which
broadcasts as station 2GB in Sydney and syndicates its programs to a number
of other stations.
In Harbour Radio Limited v the Australian
Communications and Media Authority the Federal Court considered ACMA
investigations into complaints made by listeners regarding on air statements
by Alan Jones in 2013.
Complaints alleged that Mr Jones had breached the
Commercial Radio Code of Practice in commenting on a [then forthcoming]
report on climate change in September 2013 and on a proposal to build an airport
in Toowoomba in Queensland in November and December 2013.
Harbour Radio argued that ACMA could not investigate the
climate change complaints as the complainants had not fulfilled requirements
under the Commercial Radio Code for lodging complaints. After ACMA
considered this response it then decided to investigate the matter under
section 170 of the BSA.[45]
The second complaint was made by the company which
intended to build an airport at Toowoomba. Harbour Radio again claimed that
the complaint was not legitimate and that ACMA lacked the jurisdiction to
investigate after ACMA notified the broadcaster that it had commenced an
investigation under the BSA.[46]
|
Schedule 3: monitoring the telecommunications industry
Item 3 of this schedule proposes to repeal Divisions
4 and 5 of Part XIB of the Competition Act.[47]
Part XIB states the rules that apply to the communications industry with
regards to anti-competitive conduct actions and record keeping. Division 4 of Part
XIB requires the ACCC to collect certain tariff information from
telecommunications carriers and carriage service providers (CSPs) that hold a
substantial degree of power in the market. Division 5 sets out the tariff
filing requirements that apply specifically to Telstra. Under the existing
regime the ACCC is able to request information within a specific timeframe.
According to the Explanatory Memorandum these requirements impose
an unnecessary regulatory burden on business as the information that it is
required to provide to the ACCC is ‘readily available’ through ‘other avenues’.[48]
The Explanatory Memorandum considers also that as the information supplied to
the ACCC is of little benefit in assisting in the investigation of
anti-competitive behaviour, it ‘cannot be justified’.[49]
Division 6 of Part XIB currently provides that the ACCC can
require carriers and CSPs to keep and retain records and to provide reports on certain
matters. These include ascertaining whether the ‘competition rule’ has been, or
is being, complied with or whether tariff filing directions have been, or are
being, complied with (subsection 151BU(4)).[50]
The ACCC introduced record keeping rules, Division 12
Record-Keeping and Reporting Rules in December 2004 under Division 12 of
Part XIB and it has revised these rules on a number of occasions in response to
changes in industry trends.[51]
Item 5 of Schedule 3 will however, insert proposed
subsections 151BU(4A) and (4B) to make it a formal requirement that
the ACCC review its record-keeping rules within one year of commencement of the
Bill and then at least once every five years to ensure that they ‘remain
up-to-date, reflect changing markets and consumer behaviour and minimise the
regulatory burden on industry’.[52]
In reviewing rules the ACCC would need to take into account whether information
is publicly available, whether consumer demand for goods and services about
which the information relates has changed and what use the information will be
for consumers, the Minister and the Parliament.
As the Explanatory Memorandum notes, while the proposed
subsections represent ‘a statutory minimum level of review’, there is nothing
in the legislation that would prevent the ACCC from undertaking more regular
reviews ‘if circumstances warrant’.[53]
Division 12 of Part XIB of the Competition Act
requires the ACCC to monitor charges paid by consumers for listed carriage
services and goods and services used in connection with those carriage services.
The ACCC must provide an annual report on these matters and include in the
report information on Telstra’s compliance with the price control arrangements
under Part 9 of the Telecommunications (Consumer Protection and Service
Standards) Act 1999.
Items 22 and 23 of this Bill amend the ACCC’s
monitoring and reporting function with the intention to deliver a ‘more
flexible regime’.[54]
According to the Explanatory Memorandum, this also reflects the fact that the
current monitoring and reporting obligations apply largely to traditional
providers of services, and as such, they may not fully reflect the
telecommunications market.[55]
Item 24 of Schedule 3 of the Bill also deals with
reporting. Subsections 105(1) to (4) of the Telecommunications Act 1997 currently
require that ACMA monitors and reports to the Minister on certain aspects of
the telecommunications industry.[56]
This Bill will repeal these subsections, according to the Explanatory
Memorandum because the ‘policy rationale’ for such reporting is no longer
‘compelling’.[57]
Item 24 therefore reduces the reporting requirements to include only those
relating to national interest matters under Part 14 of the Telecommunications
Act 1997, the costs of compliance with Part 14 and the costs of compliance
with data retention under the Telecommunications (Interception and Access)
Act 1979.
Comment
The Explanatory Memorandum states that the legislative
requirement imposed almost twenty years ago in the Telecommunications Act
1997 for ACMA to monitor and report annually on consumer satisfaction with,
consumer benefits of and the quality of service delivered by the telecommunications
industry ensured there was a high degree of oversight of the industry when it
was needed. The Explanatory Memorandum argues this is no longer a compelling
argument for this requirement to continue, because of increased competition in
the industry and in light of the introduction of a new regulatory framework.[58]
Hence, it is more beneficial to industry and the Government if ACMA produces
targeted reports.
While the reports produced by ACMA in response to the
legislative requirements under section 105 have been prepared using information
supplied by the industry and not by means of independent analysis, they have
nevertheless been excellent sources of information on the telecommunications
industry. It is unlikely that targeted reports will provide information which
can give rise to the same degree of comparative analysis as would result from
ACMA continuing to collect and publish this information.
Schedule 6: numbering
Under the Telecommunications Act 1997 ACMA is
required to make a plan which deals with the numbering of telecommunications
carriage services and the the use of numbers in connection with
the supply of these services. The Numbering Plan for Australia specifies rules for
the allocation, transfer, surrender, portability and use of different types of
numbers in connection with the supply of carriage services. Rights and responsibilities relating to numbers are
contained in a number of legislative and regulatory instruments. Industry codes
and guidelines and contractual arrangements between parties also affect how
numbers are managed.[59]
The Numbering Plan covers geographic numbers,
free phone numbers (1800), local rate numbers (13, 1300), premium rate numbers
(19) and mobile phone numbers. The Numbering Plan also specifies
emergency services numbers.
Schedule 6 of this Bill will set up a framework under which
the responsibility for numbering, with the exception of emergency numbers, may be
transferred to industry and be undertaken by a numbering scheme manager, who
will be approved by the Minister. The numbering scheme manager will be able to
be a person or a body corporate.
Item 1 proposes to repeal the reference to ACMA’s
role in regulating telecommunications numbers by means of a numbering plan in
the simplified outline of the Telecommunications Act. The item will substitute
the statement that numbering may be administered by a numbering scheme manager
(or ACMA in the case that a numbering scheme manager is not appointed by the
Minister). The Explanatory Memorandum explains that emergency numbers will
remain the responsibility of ACMA given their importance to the community.[60]
Item 10 will insert a new subdivision (Subdivision
AA) into Division 2 of Part 22 of the Telecommunications Act to deal
with the management of the numbering scheme by the numbering manager.
Proposed section 454A in this subdivision will allow
the Minister to determine the numbering scheme manager by legislative
instrument. The numbering scheme manager must administer the scheme in
accordance with ‘numbering scheme principles’ (proposed subsection 454C(1)).
Before determining the numbering scheme manager the Minister must consult with
ACMA and the ACCC. It is proposed that the Minister will be able to direct the
numbering scheme manager to amend the rules of the numbering scheme or to
changes its processes (proposed subsection 454E(1)) and that ACMA and
the ACCC will also be able to give directions to the numbering scheme manager
following consultation with the Minister and the manager (proposed subsections 454E(3)
to (6)). The numbering scheme manager must comply with these directions
(proposed subsection 454E(7)). Failure to do so could result in the imposition
of a civil penalty (proposed subsection 454E(8)).
The proposed numbering scheme principles are detailed in proposed
section 454C. These are shown in Box 3 below:
Box 3: numbering scheme: proposed principles
(a) there must be an
adequate and appropriate supply of numbers for carriage services(b) future needs for numbering must be planned for,
having regard to community needs, industry needs and global trends
(c) numbering arrangements must be effective and
efficient and support the effective and efficient supply of carriage services
(d) numbering arrangements must have regard to
recognised international standards and ensure that numbering in Australia
operates in conjunction with international numbering arrangements
(e) there must be fair
and transparent access to numbers for all carriage service providers
(f) the interests of users of carriage services
must be protected, including in relation to the use and portability of numbers
(g) the numbering scheme’s provisions for the
portability of numbers must be consistent with any directions made by the ACCC
to the ACMA under subsection 458(2) in relation to portability of numbers
(h) the numbering scheme
must support the use of emergency call services
(i) numbering arrangements must meet the
requirements of Australian law enforcement and national security agencies
(j) numbering arrangements must provide for the
collection of charges imposed under the Telecommunications (Numbering
Charges) Act 1997
(k) the Register of
allocated numbers must be kept up to date
(l) the rules and
processes of the numbering scheme, including a plan for numbering of carriage
services:
(i)
must be adhered to by the numbering scheme manager
(ii) must
be published and available at no charge
(m) the numbering scheme
must include compliance mechanisms to provide for enforcement of scheme rules
(n) the numbering scheme must make effective
complaints processes available to both the telecommunications industry and
users of carriage services
(o) the recovery of costs in relation to the
management of the numbering scheme must reasonably reflect costs and must be
fair and transparent
(p) public consultation
must be undertaken before any significant change is made to the numbering
scheme
(q) any additional
principles determined by the Minister by legislative instrument. |
Comment
As noted earlier in this digest, Communications Alliance, the
primary telecommunications industry body in Australia considers that an
industry based numbering scheme will be more cost effective and efficient and
similar schemes overseas have delivered benefits for customers and industry. [61]
The Alliance provides no example or detail to substantiate this claim. There
are, however certainly examples of the proposed type of scheme. Administration of
the North American Numbering Plan, for example, is not undertaken by
governments; the overall administration of the Plan is undertaken by a company
appointed by the United States Government regulator and other members involved
in the Plan appoint individual country administrators (see Box 4 below for more
detail).
Box 4: North American Numbering Plan Administration
The North American Numbering Plan is administered by the
North American Numbering Plan Administration (NANPA). NANPA is allocated to
a company by the American Federal Communications Commission (FCC). This last
occurred in 2012 when the FCC allocated the administration to the Neustar
Company for a period of five years.
Legislation requires the FCC to create or designate one
or more impartial entities to administer telecommunications numbering and to
make numbers available on an equitable basis. It also requires that costs of
number administration and number portability are borne by all
telecommunications carriers.
NANPA is required to administer numbering resources in a
neutral manner; it is not a policy-making entity and is subject to
regulatory directives and industry-developed guidelines. NANPA’s
responsibilities are defined in FCC rules and in technical requirements drafted
by the telecommunications industry and approved by the FCC.
Regulatory authorities in various NANPA countries name
national administrators to oversee the numbering resources assigned by
NANPA. Neustar is the national administrator for the United States and its
territories. In other participating countries, regulatory authorities either
serve as the national administrator or delegate the responsibility to the
dominant carrier.
NANPA costs are allocated to participating countries
based on population, and then further adjusted based on NANPA services used
by each country. Participants pay their share of the costs of the NANPA
services they require. Regulatory authorities in each participating country
determine how to recover these costs.[62]
|
It should be noted that there is
no indication of the order of savings to industry which will result from the
change to an industry managed scheme. And one reading of the Explanatory
Memorandum would be that they will be ‘insignificant’ as the Government sees no
major revenue changes resulting from this Bill.[63]
While it appears that there have been no other comments made
in relation to the introduction of an industry‑based numbering scheme it
is worth noting that in 2012 the Australian Communications Consumer Action Network
commented on the importance of numbering policy ‘in achieving
availability, accessible and affordable services that enhances the welfare of
all Australians’.[64]
It is likely, therefore, that this group, and perhaps other consumer groups,
may want to know the details of any industry-based scheme before voicing
support for change. This would especially apply with reference to the question
of whether an industry managed scheme would impose any financial burdens on
customers.
A paper produced for the International Telecommunications
Union (ITU) makes the point that there is widespread agreement that national
telephone numbering plans are a national resource and that they should be
managed in the overall national interest. In a competitive telecommunications
environment, it is the job of an independent regulator to ensure this happens,
with one of the prime roles of the regulator being to resolve conflicts of
interest.[65]
There may therefore be some question of the extent to which potential conflicts
of interest may be exacerbated if the Numbering Plan is managed by an industry
body.
This paper argues that it is possible for a regulator not
to take a role in the day-to-day running of a plan, however, and avoid such
conflicts of interest, provided that it is given the capacity to maintain a
long-term vision for a numbering scheme and that vision is structured to foresee
potential capacity shortages, instigate reviews of a Plan and take overall
responsibility for its operation with the national interest as its objective.[66]
There may be some question about the extent to which this role is possible for
ACMA if the proposed changes are enacted. It appears that the role of planning
for future needs for example is to be undertaken by the numbering scheme
manager (proposed subsection 454C(2)(b)). It could be argued that
powers provided to the Minister and ACMA to enable them to direct the numbering
scheme manager to amend rules, change processes or refrain from acting in a
certain manner in relation to the proposed scheme are sufficient, but there
could be a countervailing argument that these powers are reactive, and dealing
with numbering in an ever-changing telecommunications environment needs to be
proactive.
In light of the above comments it is interesting that ZOAK Solutions,
the company involved in the administration of ACMA’s updated Numbering Plan,
noted that feedback from ‘several industry participants is
that the new system provides an outstanding customer experience because it is
an intuitive system that is simple to use’.[67]
The updated Plan reflects ACMA’s own assessment in 2011 that the Plan as it
existed then was:
...a cumbersome legislative artefact that has the potential to
unnecessarily raise information costs for industry and—to the extent that it is
unnecessarily complex and prescriptive—raise barriers to innovation.[68]
The recent revision has been informed by design
principles. These were meant to inform future development of the Plan and are
as follows:
-
broad-based use of numbers—so that the use of numbers is not unduly
restricted by the Numbering Plan
- technical neutrality—so that the specification of numbers based on the
technical characteristics of the service or the platform over which it is
provided is minimised in the Numbering Plan
-
price transparency—so that where it is necessary to use numbering to
facilitate end users recognising the costs of calls, this is supported by the
structure of the Numbering Plan and
-
clarity—so that the structure of the Numbering Plan is simple and
capable of being readily understood.[69]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Broadcasting Services
Act 1992, accessed 15 December 2015.
[2]. Competition and Consumer
Act 2010, accessed 16 December 2015.
[3]. Australian
Communications and Media Authority Act 2005, accessed 16 December 2015.
[4]. Explanatory
Memorandum, Communications Legislation Amendment (Deregulation and Other
Measure) Bill 2015, p. 3, accessed 10 December 2015.
[5]. Telecommunications Act
1997 and Telecommunications
(Consumer Protection and Service Standards) Act 1999, accessed
16 December 2015.
[6]. Australian Broadcasting
Corporation Act 1983 and Special Broadcasting
Service Act 1991, accessed 13 January 2016.
[7]. Convergence
Review Committee, Convergence
review: final report, report prepared for the Department of Broadband,
Communications and the Digital Economy (DBCDE), DBCDE, Canberra, March 2012, p.
1, accessed 13 January 2016.
[8]. Free
TV Australia, Submission
to National Commission of Audit (NCoA), 29 November 2013, p. 4, accessed 10
December 2015.
[9]. T
Abbott (Prime Minister) and J Frydenberg (Parliamentary Secretary to the Prime
Minister), Reducing
red tape to build a strong and prosperous economy, joint media release,
19 March 2014, accessed 14 December 2015.
[10]. Department
of Communications (DoC), Deregulation
in the communications portfolio, policy background paper, 1, DoC, November
2013, p. 3 and DoC, Regulating
harms in the Australian communications sector, policy background paper,
2, DoC, May 2015, accessed 14 December 2015.
[11]. M
Fifield (Minister for Communications), Regulation
reform agenda continues to benefit the communications sector, media
release, 2 December 2015, accessed 16 December 2015.
[12]. Ibid.
[13]. Telecommunications
Numbering Plan 1997, accessed 16 December 2015.
[14]. ACMA,
Telephone
numbering: future directions, November 2011, accessed 16 December 2015.
[15]. Telecommunications
Numbering Plan 2015, accessed 11 December 2015.
[16]. Communications
Alliance, Industry
welcomes government move to facilitate an industry-based scheme to manage
telephone numbering, media release, 2 December 2015, accessed 11
December 2015.
[17]. Ibid.
[18]. Australian
Communications Consumer Action Network (ACCAN), Submission
to ACMA, Telephone numbering: future directions, February 2012, accessed
11 December 2015.
[19]. ZOAK
Solutions, ‘ZOAK Solutions switches on Australia’s new numbering system’, ZOAK Solutions website, n.d., accessed 11 December
2015.
[20]. Explanatory
Memorandum, op. cit., p. 2.
[21]. Free
TV Australia, Submission to NCoA, op. cit.
[22]. The
Statement of Compatibility with Human Rights can be found at pages 3–5 of the
Explanatory Memorandum to the Bill.
[23]. Explanatory
Memorandum, op. cit., p. 5.
[24]. Ibid.
[25]. Senate
Standing Committee for Selection of Bills, Report,
16, 2015, The Senate, Canberra, 3 December 2015, accessed 16 December 2015.
[26]. Under
the Radiocommunications Act 1992 persons can be issued licences that
authorise them to operate specified radiocommunications transmitters of a
specified kind (section 98). Conditions on channel A datacasting transmitter
licences include that persons must not operate a transmitter for transmitting a
datacasting service unless: the service is provided under, and in accordance
with the conditions of, a BSA datacasting licence, and the service is
capable of being received by a domestic digital television receiver or the
service is an open narrowcasting television service that is capable of being
received by a domestic digital television receiver or the service is a
community television broadcasting service that is capable of being received by
a domestic digital television receiver (section 109A).
[27]. Explanatory
Memorandum, op. cit., p. 8.
[28]. Ibid.;
Classification
(Publications, Films and Computer Games) Act 1995, accessed 15 January
2016.
[29]. Explanatory
Memorandum, op. cit., p. 9.
[30]. Narrowcasting
services are defined in the BSA
under sections 17 and 18 as broadcasting services whose reception is limited
by: being targeted to special interest groups; intended only for limited
locations; provided during a limited period of time; because they provide
programs of limited appeal or for some other reason. The difference between
open and subscription narrowcasting services is that subscription narrowcasting
services are made available only on payment of a subscription fee.
[31]. Television Licence Fees
Act 1964, and Radio
Licence Fees Act 1964 and Datacasting Transmitter
Licence Fees Act 2006, accessed 16 December 2015.
[32]. Explanatory
Memorandum, op. cit., p. 10.
[33]. Ibid.
[34]. DoC,
Regulating harms in the Australian communications sector, op. cit., p.
6.
[35]. Ibid.,
p. 7.
[36]. L
Maddock, foreword to report by I Ramsay, Reform
of the broadcasting regulator’s enforcement powers, ACMA, Sydney,
November 2005, p. iii, accessed 5 January 2016.
[37]. Ramsay,
Reform of the broadcasting regulator’s enforcement powers, op. cit., pp.
9–10.
[38]. Ibid.,
p. 5.
[39]. Ibid.,
pp. 9–10.
[40]. Australian Council on Children and the Media, Submission CI 2495
to the Australian Law Reform Commission, Inquiry into the
classification system, cited in Australian Law Reform Commission (ALRC),
Classification—content
regulation and convergent media, report, 118, ALRC, Sydney, February
2012, p. 309, accessed 5 January 2016.
[41]. Commissioner
for Children and Young People Western Australia, Submission CI 2480 to the Australian
Law Reform Commission, Inquiry into the classification system, cited
in Classification—content regulation and convergent media, op. cit., p.
310.
[42]. Explanatory
Memorandum, op. cit., p. 12.
[43]. Harbour
Radio Pty Limited v Australian Communications and Media Authority [2015] FCA 371
at [90], accessed 6 January 2016. Note that section 149 was amended by the Omnibus Repeal Day
(Autumn 2014) Act 2014. The amended section replaced ‘the duty to
investigate with a general discretion to investigate’, Explanatory
Memorandum, Omnibus Repeal Day (Autumn 2014) Bill 2014, p.
12, accessed 21 January 2016.
[44]. Explanatory
Memorandum, op. cit., p. 12.
[45]. ACMA,
Radio Investigation Report
3151, accessed 6 January 2016.
[46]. The
investigation into this complaint has yet to be finalised.
[47]. Competition and Consumer
Act 2010, accessed 16 December 2015.
[48]. Explanatory
Memorandum, op. cit., p. 14.
[49]. Ibid.
[50]. The
competition rule is contained in section
151AK of the Competition Act and states that a 'carrier or carriage
service provider must not engage in anti-competitive conduct’. The
circumstances in which a carrier will engage in anti-competitive conduct are
set out at section 151AJ.
[51]. ACCC,
Division
12 report: record-keeping and reporting rules, ACCC, July 2013,
accessed 6 January 2016.
[52]. Explanatory
Memorandum, op. cit., p. 15.
[53]. Ibid.
[54]. Ibid.,
p. 16.
[55]. Ibid.
[56]. Telecommunications Act
1997, accessed 16 December 2015.
[57]. Explanatory
Memorandum, op. cit., p. 16.
[58]. Ibid.
[59]. ACMA,
‘Numbering
Plan’, ACMA website, 31 July 2015, accessed 17 December 2015.
[60]. Explanatory
Memorandum, op. cit., p. 25.
[61]. Communications
Alliance media release, op. cit.
[62]. Information
in this box derived from the North American Numbering Plan Administration website and the Federal
Communications Commission’s information
pages on the Plan, accessed 7 January 2016.
[63]. Explanatory
Memorandum, op. cit., p. 2.
[64]. Australian
Communications Consumer Action Network (ACCAN), Submission
to ACMA, op. cit.
[65]. C
Milne, Numbering
trends: a global overview, paper prepared for the International
Telecommunications Union (ITU), ITU, 2002, pp. 54–55, accessed 7 January
2016.
[66]. Ibid.
[67]. ZOAK
Solutions, ‘ZOAK Solutions switches on Australia’s new numbering system’, op. cit.
[68]. ACMA,
Telephone Numbering: future directions, op. cit., p. 2.
[69]. Ibid.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Entry Point for referral.