Bills Digest No. 103, 2016–17
PDF version [714KB]
Dr Rhonda Jolly
Social Policy Section
29
May 2017
Contents
The Bills Digest at a glance
Commencement
Purpose of the Bill
Structure of the Bill
Background
Administrative efficiency
Numbering plans
Classification standard
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Committee consideration
Senate Scrutiny of Bills Committee
2015 Bill
Schedule 5, item 2: inappropriate
delegation of legislative power—consultation requirements
Schedule 6: adequacy of review rights
2017 Bill
Schedule 3, items 15, 18 and 22:
parliamentary scrutiny—removing requirements to table certain documents
Schedule 5, item 2: consultation
prior to making delegated legislation
Senate Selection of Bills Committee
Key issues and provisions
Schedule 1: streamlining regulation
Broadcasting Services Act 1992
Control and declarations
Classification
ACMA discretion
Comment
Box 1: Broadcasting Services Act
1992, section 148
National Broadband Network
Companies Act 2011
Comment
Telecommunications Act 1997
Schedule 2: ACMA complaints handling
Comment
Box 2: Harbour Radio complaints
investigations
Schedule 3: monitoring the
telecommunications industry
Part 1
Competition Act
Telecommunications Act
Part 2
Comment
Schedule 6: numbering
Box 3: numbering scheme: proposed
principles
Comment
Box 4: North American Numbering Plan
Administration
Date introduced: 29
March 2017
House: House of
Representatives
Portfolio: Communications
and the Arts
Commencement: See
page 4 of this Bills Digest.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s homepage, or through the Australian
Parliament website
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website
All hyperlinks in this Bills Digest are correct as
at May 2017.
The Bills Digest at a glance
During the 44th Parliament the
Government introduced the Communications Legislation Amendment (Deregulation
and Other Measure) Bill 2015, which addressed most of the proposals in this
Bill.[1]
The 2015 Bill was passed by the House of Representatives on 10 February 2016.
It was passed by the Senate on 22 February 2016 with an amendment and returned
to the House of Representatives, where the amendment was rejected.[2]
The Bill lapsed at prorogation on 17 April 2016.
This Bills Digest contains information prepared for the
debate for the 2015 Bill. The Digest restates or updates that information and
includes references to Schedules 7 and 8 which are additions to the 2015 Bill.
Purpose of the Bill
The purpose of the Communications Legislation Amendment
(Deregulation and Other Measures) Bill 2017 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.
- Allow
for the telecommunications industry to develop an industry scheme to manage
telephone numbering.
- Amend
the Telecommunications Act 1997 to repeal the power of the NBN Co to
issue a statement that it is not installing fibre in a new real estate
development and for the company to maintain a register of these statements.
- Amend
the National Broadband Network Companies Act 2011 (NBN Companies Act)
to allow NBN companies to dispose of surplus goods.
- Abolish
the requirement for ACMA to consult with an advisory committee before declaring
a submarine cable protection zone.
The Bill also repeals redundant legislation and spent Acts
and corrects an error in the Telecommunications Act which relates to the
inadmissibility of evidence in certain proceedings.
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 the issues
raised in this Bill.
Key issues
- Most
of the proposed changes are administrative in nature. They will have the effect
of delivering 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.
Commencement
Schedules 1 and 2, Schedule 3 Part 1 and Schedules 4-8
commence the day the Act receives Royal Assent.
Schedule 3 Part 2 Division 1 commences on Royal Assent,
but does not commence at all if Royal Assent occurs after the commencement of
item 5 of Schedule 2 to the Competition
and Consumer Amendment (Misuse of Market Power Act) 2017.
Schedule 3 Part 2 Division 2 commences on the later of
Royal Assent and immediately after the commencement of item 5 of Schedule 2 to
the Competition and Consumer Amendment (Misuse of Market Power Act) 2017.
However, the Division does not commence at all if that item does not commence.
Purpose of
the Bill
The purpose of the Communications Legislation Amendment
(Deregulation and Other Measures) Bill 2017 (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:[3]
- 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
- remove
duplication in ACMA’s complaint handling and investigation processes
- provide
greater flexibility to ACMA in choosing the way in which it publishes notices
regarding program standards or standards relating to datacasting
- remove
tariff filing requirements for certain carriers and carriage service providers
imposed under the Competition and Consumer Act 2010 (Competition Act)[4]
- amend
the role of ACMA under the Telecommunications Act and the Australian
Competition and Consumer Commission (ACCC) under the Competition Act with
regards to monitoring and reporting of information.[5]
These amendments are intended to ensure that the regime for the statutory
collection of information reflects changing markets and consumer behaviour[6]
- amend
the Telecommunications Act 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)[7]
- amend
the Telecommunications Act to repeal the power of the NBN Co to issue a
statement that it is not installing fibre in a new real estate development and
for the company to maintain a register of these statements
- amend
the National Broadband Network Companies Act 2011 to allow NBN companies
to dispose of surplus goods[8]
- abolish
the requirement for ACMA to consult with an advisory committee before declaring
a submarine cable protection zone
- correct
an error in the Telecommunications Act which relates to the
inadmissibility of evidence in certain proceedings and
- repeal
redundant legislation and spent Acts.
Structure
of the Bill
The Bill consists of eight schedules. While Schedules 1 to
6 were included in the 2015 Bill, there are some differences between these
Schedules as set out in the 2015 Bill and this Bill. Schedules 7 and 8 are new.
- Schedule
1 removes audit and reporting requirements which have been deemed to be
unnecessarily duplicative and burdensome for broadcasters, allows the NBN Co to
dispose of surplus assets and removes the requirement for ACMA to consult with
an advisory committee before declaring a submarine cable protection zone
- 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[9]
- 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[10]
- 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
- Schedule
7 allows for ACMA to make more flexible arrangements for notifying stakeholders
it intends to determine, vary or revoke a program standard
- Schedule
8 amends the Telecommunications Act to remove the requirement for NBN Co
to issue a statement that it is not installing fibre in a new real estate
development so as to remove confusion about whether developers are then
required to provide fixed line infrastructure.
Background
Administrative
efficiency
The extent to which government rules and regulation which
affect the communications sector have 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.[11]
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.[12]
The peak representative organisation for free-to-air broadcasters, Free TV
Australia, 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’.[13]
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.[14]
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.[15]
In 2015 the Minister for Communications, Mitch Fifield,
commented that the Government had delivered significant progress in the
implementation of the Government’s regulatory reform agenda in the
communications sector.[16]
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 $340.0 million for businesses and
consumers in the communications sector’.[17]
These reductions were confirmed in the Government’s annual report on red tape
reduction which was released in March 2016.[18]
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.[19]
A major re-organisation took place in 1997 as mobile phones were first being
developed. This re-organisation occurred in the context of the implementation
of a new regulatory framework for the telecommunications industry which
occurred with the introduction of the Telecommunications Act 1997.
Since 1997 the regulation and organisation of numbering
has been the responsibility of ACMA. At that time, subsection 455(1) of the Telecommunications
Act 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).[20]
Consultations on the Telephone Numbering Plan have
occurred 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.[21]
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.[22]
Classification
standard
When television was introduced in Australia in 1956 there
were certain television standards, set by the Australian Broadcasting Control
Board, applied to programming, but by 1986, after extensive criticism by
industry and the public, these standards were revised.[23]
and the Australian Broadcasting Tribunal (ABT, now known as ACMA) adopted
interim standards which set out criteria for the classification of programs and
advertisements and the times at which various programs could be broadcast.[24]
In 1991 the ABT undertook an inquiry into aspects of the
interim standards and found that there was community support for a regime under
which television programming was more ‘tightly regulated’ than cinema or video.
This was in recognition of the fact that television was a ‘home medium’ easily
accessible by children.[25]
Hence, the ABT recommended adopting the Office of Film and Literature
Classification (OFLC) Guidelines ‘with appropriate modifications’ as the basis
for the self-regulatory codes for television which were to be developed under
the BSA. The ABT saw the introduction of the modified OFLC guidelines as
a way of reducing confusion about what standards applied to various programming
and a means towards bringing standards closer together. The Tribunal also
recommended the introduction of a family viewing period and that other
scheduling of programs reflect the audience composition at the time.[26]
In December 1992 the Parliament passed legislation loosely
based on the ABT recommendations. Since that time the television industry has
developed codes of practice which are regularly reviewed through public
consultation and which are approved by ACMA.
Policy
position of non-government parties/independents
Jason Clare from the Australian Labor Party (Labor/ALP)
noted in the House of Representatives debates on the 2015 Bill:
The opposition have consulted with the telecommunications
industry, including the Communications Alliance. We have also consulted with
the Australian Communications Consumer Action Network and Free TV Australia,
and they have indicated to us that they support the amendments in this [B]ill.
I thank the government for providing the opposition with a briefing on these [B]ills
earlier this week, and, as I said, we will not oppose them in this place.[27]
In the Senate, Senator Ludlam from the Australian Greens
commented on the 2015 Bill:
It appears to the Australian Greens that this is basically
housekeeping. It is an omnibus [B]ill that sweeps up a number of different
areas, particularly, streamlining the broadcast licensing regime; removing some
of the licensing categories that I understand have never in fact been used in
the entire time that they have been on the statute books; and maybe allowing
ACMA to target its limited resources a little bit more directly at the areas
where it needs to wave a stick or intervene.
The amendments on the telecom side around the ACMA and the
ACCC's powers also appear to the Australian Greens to be reasonably
sensible—again, streamlining recordkeeping, removing tariff fixing directions
powers and a number of other fairly innocuous amendments, as far as we have
been able to ascertain. I might put a couple of questions to the minister on
the numbering arrangements when we get to the committee stage, but again I do
not think there is anything here that we need to detain the Senate with overlong.
This is sensible legislation that will clean up provisions that are either
impediments to smooth functioning of the telecommunications and broadcast
sector or are in fact completely redundant and have been placed in the statutes
back in the mists of time and clearly have not been used and have not been all
that necessary. As a housekeeping [B]ill, we would certainly be supporting it.[28]
At the time of writing this Digest there appears to have
been no comments made by the non-government parties or independents on the 2017
Bill.
Position of
major interest groups
There appears to have been no comments made by the
broadcasting industry in relation to the changes proposed by this Bill.
Communications Alliance, the primary telecommunications
industry body in Australia, welcomed the introduction of the 2015 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’.[29]
The Alliance 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.[30]
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’.[31]
The comments made by the member for Blaxland, Jason Clare in the House of
Representatives debates on the 2015 Bill, appear to indicate that this interest
group was supportive of the proposals in the 2015 Bill.[32]
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’.[33]
Financial
implications
According to the Explanatory Memorandum to this Bill, it
will not have a ‘significant impact’ on Government expenditure or revenue.[34]
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.[35]
Statement
of Compatibility with Human Rights
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.[36]
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’.[37]
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.[38]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considers
that the Bill does not raise human rights concerns.[39]
Committee consideration
Senate Scrutiny
of Bills Committee
2015 Bill
In February 2016 the Senate Scrutiny of Bills Committee referred
questions on two matters relating to the 2015 Bill to the Minister for
response.[40]
Schedule 5,
item 2: inappropriate delegation of legislative power—consultation requirements
The Committee noted the intention of the Bill to repeal
section 152ELB of the Competition and Consumer Act 2010 for the reason it
was considered unnecessary in light of provisions in section 17 of the Legislative
Instruments Act 2003 (the LI Act).[41]
Currently section 152ELB of the Competition and Consumer Act ‘requires
the ACCC to publish a draft of its procedural rules and invite interested
persons to make submissions during a period of at least 30 days and to consider
submissions received’. The Committee was of the opinion:
... consultation requirements under the LI Act are (a)
less prescriptive and therefore leave more discretion to the rule-maker about
what level of consultation is required, and (b) subject to exceptions specified
in section 18. Furthermore, section 19 of the LI Act expressly provides
that non-compliance with these requirements does not affect ‘the validity or
enforceability of a legislative instrument’.[42]
It therefore sought advice from the Minister about what
had led to the conclusion that section 152ELB was unnecessary.[43]
In reply the Minister considered that one of the
significant benefits of the LI Act is that it does not purport to
prescribe in detail exactly how consultation should occur, which provides for consultation
that is both targeted and flexible ‘to ensure that the consultation meets the
needs of stakeholders and also that unnecessary costs to the Government and
stakeholders are minimised’.[44]
Schedule 6:
adequacy of review rights
The Committee considered it was unclear what, if any,
review rights are provided for in relation to the proposed industry-based
management structure for the administration of numbering arrangements for
carriage services.[45]
The Minister replied that he or she would not be able to
appoint a numbering scheme manager unless satisfied that the person will
administer the numbering scheme in accordance with the numbering scheme
principles which were articulated in proposed section 454C of the 2015 Bill.
The Minister added that these principles include:
... making effective complaints processes available to both the
telecommunications industry and users of carriage services (proposed new
paragraph 454C(2)(n)). This principle will ensure that avenues are in place
through which industry and consumers can have their complaints about actions
which may affect their rights and obligations heard and addressed. The Minister
may also supplement the statutory principles with new requirements by
instrument if warranted (proposed new paragraph 454C(2)(q).[46]
The Committee asked for this information to be included in
the Explanatory Memorandum to the Bill.[47]
2017 Bill
Schedule 3,
items 15, 18 and 22: parliamentary scrutiny—removing requirements to table
certain documents
In relation to this Bill, the Committee expressed concern
that it proposes to remove requirements in the Competition and Consumer Act
and the Telecommunications Act that the Minister table documents,
including ACCC and ACMA annual reports, in Parliament.[48]
The Committee acknowledges that some information will be published online but
notes ‘that removing the requirement for certain information to be tabled in
Parliament reduces the scope for parliamentary scrutiny’. It has asked the Minister
for an appropriate justification for this proposal and adds that it does not
consider costs involved in tabling a sufficient basis for removing the tabling
requirement.[49]
Schedule 5,
item 2: consultation prior to making delegated legislation
The Committee had expressed a similar concern about this
section in the relation to the 2015 Bill. It was not convinced the consultation
requirement was unnecessary as a result of consultation requirements set out in
the Legislation Act 2003.[50]
The Committee believes that section 17 of that Act does not actually require
that consultation is undertaken before a rule is made. Rather, it requires that
a person making the rule is satisfied that appropriate consultation has been
undertaken. Nor does the Legislation Act 2003 set out consultation
processes. It adds:
Where the Parliament delegates its legislative power in
relation to significant regulatory schemes the Committee considers that it is
appropriate that specific consultation obligations (beyond those in section 17
of the Legislation Act 2003) are included in the Bill and that
compliance with these obligations is a condition of the validity of the
legislative instrument.[51]
It has asked the Minister to justify why the current
consultation requirements should be removed. At the time of writing the
Minister had not replied to the Committee.
Senate
Selection of Bills Committee
The Senate Selection of Bills Committee recommended that
the 2015 Bill was not referred to a committee for inquiry.[52]
It has also recommended that this bill is not referred to an inquiry.[53]
Key issues
and provisions
This section does not discuss all the provisions in this
Bill. For a detailed analysis of all provisions, see the Explanatory
Memorandum.
Schedule 1:
streamlining regulation
Broadcasting
Services Act 1992
Control and
declarations
Part 5 of the BSA outlines the rules regarding
control of commercial television and radio broadcasting licences, datacasting
transmitter licences and newspapers that are ‘associated’ with commercial television
or radio broadcasting licence areas (known as regulated media assets). This Part
of the BSA requires that certain persons must notify ACMA when changes
to the control of regulated media assets occur.
Section 63 of the BSA requires individual licensees
and publishers to notify ACMA within ten business days when a person becomes,
or ceases to be, in a position to exercise control of the licence or newspaper.
Section 64 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. This duplication will be addressed by item 1, repealing 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.[54]
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.[55]
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.[56]
It is argued in the Explanatory Memorandum that this represents another
unnecessary regulatory task for broadcasters as the film and television
classifications do not now differ significantly.[57]
Item 5 of Schedule 1 proposes to remove the need for broadcasters to
take into account classification under the Classification Act when
classifying films for viewing on commercial and community television and on
open narrowcasting services.[58]
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.[59]
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. Proposed
subsection 205B(4A) gives ACMA a new 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.[60]
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.[61]
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) ...[62]
Comment
Schedule 1 of the Bill generally 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.[63]
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’.[64] The effect 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.[65]
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.[66]
While 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.[67]
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.[68]
With regards to classification, questions may be 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 concern that making breaches of
classification a code of practice violation does not 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
inquiry into the classification system noted concerns about existing television
classification codes. The Australian Council on Children and the Media (ACCM),
for example, 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’.[69]
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’.[70]
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.
|
National
Broadband Network Companies Act 2011
Item 15 in Schedule 1 of this Bill addresses issues
which were not dealt with in the 2015 Bill. Item 15 proposes to revise
section 19 of the NBN Companies Act to lift certain restrictions
relating to the disposal of goods by an NBN company. Currently an NBN company
cannot sell surplus non-communications assets, such as office equipment, to
another company or person unless the NBN company also supplies ‘eligible
services’ to the intended purchaser.[71]
Item 15 proposes to allow an NBN corporation to supply
goods to another person or company if one of the following conditions is met:
- the
goods are for use in connection with the supply of an eligible service by the
NBN corporation
- the
NBN corporation did not obtain the goods for the purpose of supplying the goods
or
- the
NBN corporation obtained the goods for the purpose of supplying the goods in
connection with the supply, or prospective supply, of an eligible service and
it considers the goods to be excess to its requirements.
The Explanatory Memorandum argues that easing the current restriction
will allow for more efficient and financially effective management of NBN
corporation assets.[72]
Comment
An Optus submission to a Senate Inquiry into the
provisions of the Telecommunications Legislation Amendment
(Access Regime and NBN Companies) Bill 2015 (Access Regime Bill) which, among
other matters, dealt with line of businesses restrictions such as the one
stated in item 15, did not object to a similar amendment proposed
in that Bill. Optus added, however, that such a change to should not be used ‘to
expand the role of NBN Co into telecommunications markets which are competitive
and adequately served by commercial entities’.[73]
A further submission to the same Senate inquiry from the Competitive
Carriers Coalition (CCC) noted that while the NBN company had argued the
restrictions on its business activities were ‘so tight that it cannot even
dispose of equipment or goods surplus to requirements’ it had offered no actual
examples of the restrictions causing difficulty.[74]
CCC acknowledged that while NBN should be able to dispose of surplus goods,
line of business restrictions were put in place to ensure the company provided
specific services. It added:
Once it has rolled out in a location, NBN enjoys a powerful
monopoly over access to fixed line communications services to consumers in
those locations.
It was Telstra’s systematic exploitation of this power to the
detriment of consumers and competition that led to the decision to vest this
power in an all-new, wholesale only network operator ... NBN should remain
strictly focused on the purpose for which it was created—addressing areas of
market failure in wholesale markets.[75]
Macquarie Telecom was also wary of making changes to
business activity restrictions. It was unclear what the NBN company was presently
precluded from doing, and added that while current restrictions may be excessive,
there needed to be further information advanced before a judgement could be
made about removing this restriction.[76]
The proposed changes in item 15 mirror those in the 2015
Access Regime Bill and there appears to have been no further explanation
proffered by the NBN company as to why the current restrictions are detrimental
to efficiency or financial management.[77]
Telecommunications
Act 1997
Item 16 corrects an error in paragraph 524(2)(d) of
the Telecommunications Act. This protects individual carriers and
carriage service providers against self-incrimination with regards to providing
information to ACMA which concerns the exercise of the regulator’s powers and
functions (section 521).[78]
The intention of the provision is that information or documents can only be
used in civil proceedings relating to their failure to comply with the
obligation to provide ACMA with documents or information relevant to the
exercise of ACMA’s telecommunications powers or the performance of its
telecommunications functions. As a result of the error, however, proceedings
relating to section 521 are the only civil proceedings where the information or
documents are inadmissible.
ACMA can declare protection zones for submarine communications
cables installed, or proposed to be installed in Australian waters.[79]
In so doing, currently ACMA is required to consult with an advisory committee. Items
17 to 23 of Schedule 2 will remove a requirement for ACMA to consult with such
a committee, because ACMA is already required to consult with the Environment
Secretary and the public regarding submarine cables. As such, according to the
Explanatory Memorandum, the added consultation requirement is an unnecessary
added cost.[80]
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 150 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 substantiated, then it can encourage the ABC or SBS to take action to
deal with the complaint.
In addition to the power authorised 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’.[81]
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 proposed in response to a 2015 decision
in the Federal Court in Harbour Radio Limited v the Australian
Communications and Media Authority (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]’. [82]
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.[83]
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.[84]
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.[85]
|
Schedule 3:
monitoring the telecommunications industry
Part 1
Competition
Act
Part XIB of the Competition Act sets out the
obligations which apply to the telecommunications industry with regards to
anti-competitive conduct and record-keeping.[86]
Item 2 of Schedule 3 to this Bill proposes to
repeal Divisions 4 and 5 of Part XIB. 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.
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’.[87]
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’.[88]
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)).[89]
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.[90]
Item 4 of Schedule 3 will insert proposed
subsections 151BU(4A) and (4B) to make it a formal requirement that
the ACCC review its record-keeping rules within one year of commencement of the
Bill and then at least once every five years to ‘ensure that they remain
up-to-date, reflect changing markets and consumer behaviour and minimise the
regulatory burden on industry’.[91]
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, industry, 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’.[92]
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 17 and 18 of the Bill amend the ACCC’s
monitoring and reporting function with the intention to deliver a ‘more
flexible regime’.[93]
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.[94]
Telecommunications
Act
Subsections 105(1) to (4) of the Telecommunications Act
currently require that ACMA monitors and reports to the Minister on certain
aspects of the telecommunications industry.[95]
Item 20 of this Bill will repeal these subsections, according to the
Explanatory Memorandum because the ‘policy rationale’ for such reporting is no
longer ‘compelling’.[96]
Item 20 therefore reduces the reporting requirements to include only
those relating to national interest matters under Part 14 of the Telecommunications
Act, the costs of compliance with Part 14 and the costs of compliance with
data retention under the Telecommunications (Interception and Access) Act
1979.
Part 2
Part 2 of Schedule 3 sets out proposed amendments to the Competition
Act that will be dependent on the commencement of amendments proposed in
the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017
(Market Power Bill).[97]
The Explanatory Memorandum explains that due to uncertainties relating to the
passage and timing of commencement of this Bill and the Market Power Bill, it
has been necessary to insert timing options contingent on the passage of each
Bill. These are set out in detail in the Explanatory Memorandum.[98]
Comment
The Explanatory Memorandum states that the legislative
requirement imposed almost twenty years ago in the Telecommunications Act
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.[99]
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 ACMA is required
to make a plan which deals with the numbering of telecommunications carriage
services and the use of numbers in connection with the supply of these
services. 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.[100]
The Numbering Plan covers geographic numbers, free phone
numbers (1800), local rate numbers (13 and 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.[101]
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, and numbering arrangements must support
competition in the supply of carriage services;
(f) the interests of users of carriage services must be
protected, including in relation to the use and portability of numbers;
(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; and
(ii) must be published and
available at no charge;
(m) the numbering scheme must include compliance mechanisms
to provide for enforcement of scheme rules;
(n) the numbering scheme must make effective complaints
processes available to both the telecommunications industry and users of
carriage services;
(o) the recovery of costs in relation to the management of
the numbering scheme must reasonably reflect costs and must be fair and
transparent;
(p) public consultation must be undertaken before any
significant change 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.[102]
The Alliance provides no example or detail to substantiate this claim. There
are, however, 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.[103]
|
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.
While it appears that there have been no other comments
made in relation to the introduction of an industry‑based numbering
scheme, 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’.[104]
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.[105]
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.
The ITU 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.[106]
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 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’.[107]
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.[108]
The recent revision has been informed by design
principles. These intend 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.[109]
[1]. Parliament
of Australia, ‘Communications
Legislation Amendment (Deregulation and Other Measures) Bill 2015 homepage’,
Australian Parliament website.
[2]. The
amendment was to change the National Broadband Network Companies Act 2011
to require the NBN Co Board to prepare a report setting out NBN Co's financial
and deployment forecasts for the period beginning on 1 July 2015 and ending on
30 June 2022. ‘Communications
Legislation Amendment (Deregulation and Other Measures) Bill 2015,
Telecommunications (Numbering Charges) Amendment Bill 2015’, House of
Representatives, Debates, 22 February 2016, p. 509.
[3]. Broadcasting
Services Act 1992.
[4]. Competition and
Consumer Act 2010.
[5]. Telecommunications
Act 1997.
[6]. Explanatory
Memorandum, Communications Legislation Amendment (Deregulation and Other
Measure) Bill 2017, p. 20.
[7]. Telecommunications
(Consumer Protection and Service Standards) Act 1999.
[8]. National Broadband
Network Companies Act 2011.
[9]. Australian
Communications and Media Authority Act 2005.
[10]. Australian
Broadcasting Corporation Act 1983 and Special
Broadcasting Service Act 1991.
[11]. 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.
[12]. National Commission of Audit (NCoA).
[13]. Free
TV Australia, Submission
to NCoA, General call for submissions, 29 November 2013, p. 4.
[14]. 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.
[15]. Department
of Communications (DoC), Deregulation
in the communications portfolio, policy background paper, 1, DoC,
Canberra, November 2013, p. 3; and DoC, Regulating
harms in the Australian communications sector: observations on current
arrangements, policy background paper, 2, DoC, Canberra, May 2014.
[16]. M
Fifield (Minister for Communications), Regulation
reform agenda continues to benefit the communications sector, media
release, 2 December 2015.
[17]. Ibid.
[18]. Department
of the Prime Minister and Cabinet (PM&C), Annual
red tape reduction report 2015, PM&C, Canberra, 2016.
[19]. AH
Freeman, History of
telephone switching technology in Australia: 1880 to 1980, Telecommunication
Society of Australia, Sydney, [1990], p. 12.
[20]. Telecommunications Numbering
Plan 1997.
[21]. Australian
Communications and Media Authority (ACMA), Telephone
numbering: future directions, ACMA, Canberra, November 2011.
[22]. Telecommunications
Numbering Plan 2015.
[23]. The
Broadcasting
and Television Act 1956 gave this power to the Australian Broadcasting
Control Board, the predecessor of the Australian Broadcasting Tribunal.
[24]. Australian
Broadcasting Tribunal (ABT), Inquiry
into the classification of program material on television: report and
recommendations, ABT, Sydney, June 1992.
[25]. Ibid.
[26]. Ibid.
[27]. J
Clare, ‘Second
reading speech: Communications Legislation Amendment (Deregulation and Other
Measures) Bill 2015, Telecommunications (Numbering Charges) Amendment Bill 2015’,
House of Representatives, Debates, 10 February 2016, p. 1195.
[28]. S
Ludlam, ‘Second
reading speech: Communications Legislation Amendment (Deregulation and Other
Measures) Bill 2015, Telecommunications (Numbering Charges) Amendment Bill 2015’,
Senate, Debates, 22 February 2016, p. 586.
[29]. Communications
Alliance, Industry
welcomes government move to facilitate an industry-based scheme to manage
telephone numbering, media release, 2 December 2015.
[30]. Ibid.
[31]. Australian
Communications Consumer Action Network (ACCAN), Submission
to ACMA, Telephone numbering: future directions, February 2012.
[32]. J
Clare, ‘Second
reading speech: Communications Legislation Amendment (Deregulation and Other
Measures) Bill 2015, Telecommunications (Numbering Charges) Amendment Bill 2015’,
op. cit.
[33]. ZOAK
Solutions, ‘ZOAK Solutions switches on Australia’s new numbering system’, ZOAK Solutions website, 3 August 2015.
[34]. Explanatory
Memorandum, op. cit., p. 3.
[35]. Free
TV Australia, Submission to NCoA, op. cit.
[36]. The
Statement of Compatibility with Human Rights can be found at pages 5–8 of the
Explanatory Memorandum to the Bill.
[37]. Explanatory
Memorandum, op. cit., p. 7.
[38]. Ibid.
[39]. Parliamentary
Joint Committee on Human Rights, Report,
4, 2017, The Senate, Canberra, 9 May 2017, p. 74.
[40]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 1, 2016, The Senate, 3 February 2016, p. 6.
[41]. The
Legislative Instruments Act 2003 is now the Legislation Act
2003.
[42]. Ibid.
[43]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 1, 2016, The Senate, 3 February 2016, p. 7.
[44]. Senate
Standing Committee for the Scrutiny of Bills, Report,
2, 2016, The Senate, 24 February 2016, pp. 60–61.
[45]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 1, 2016, op. cit., p. 7.
[46]. Senate
Standing Committee for the Scrutiny of Bills, Report,
2, 2016, op. cit., p. 62.
[47]. Ibid.,
p. 63.
[48]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 5, 2017, The Senate, 10 May 2017, p. 9.
[49]. Ibid.,
p. 10.
[50]. Ibid.,
p. 11.
[51]. Ibid.
[52]. Senate
Selection of Bills Committee, Report,
1, 2016, The Senate, 4 February 2016.
[53]. Senate
Selection of Bills Committee, Report,
5, 2017, The Senate, 11 May 2017.
[54]. 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).
[55]. Explanatory
Memorandum, op. cit., p. 11.
[56]. Ibid.,
and Classification
(Publications, Films and Computer Games) Act 1995.
[57]. Explanatory
Memorandum, op. cit., p. 12.
[58]. 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.
[59]. Explanatory
Memorandum, op. cit., p. 14.
[60]. Television Licence
Fees Act 1964; Radio Licence Fees
Act 1964 and Datacasting
Transmitter Licence Fees Act 2006.
[61]. Explanatory
Memorandum, op. cit., p. 13.
[62]. Ibid.
[63]. DoC,
Regulating harms in the Australian communications sector, op. cit.,
p. 6.
[64]. Ibid.,
p. 7.
[65]. L
Maddock, foreword to report by I Ramsay, Reform
of the broadcasting regulator’s enforcement powers, ACMA, Sydney,
November 2005, p. iii.
[66]. Ramsay,
Reform of the broadcasting regulator’s enforcement powers, op. cit., pp.
9–10.
[67]. Ibid.,
p. 5.
[68]. Ibid.,
pp. 9–10.
[69]. Australian
Council on Children and the Media, Submission to the Australian Law Reform
Commission (ALRC), Inquiry into the classification system, cited in ALRC,
Classification:
content regulation and convergent media: final report, report, 118,
ALRC, Sydney, February 2012, p. 309.
[70]. Commissioner
for Children and Young People Western Australia, Submission to the Australian
Law Reform Commission, Inquiry into the classification system, cited in Classification—content
regulation and convergent media, op. cit., p. 310.
[71]. The
meaning of ‘eligible services’ is as defined in the Competition and Consumer
Act section
152AL as ‘a listed carriage service (within the meaning of the Telecommunications
Act 1997) or a service that facilitates the supply of a listed carriage
service (within the meaning of that Act) where the service is supplied, or is
capable of being supplied, by a carrier or a carriage service provider (whether
to itself or to other persons).
[72]. Explanatory
Memorandum, op. cit., p. 14.
[73]. Optus,
Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
Telecommunications Legislation Amendment (Access Regime
and NBN Companies) Bill 2015, December 2015, p. 7.
[74]. Competitive
Carriers’ Coalition (CCC), Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
Telecommunications Legislation Amendment (Access Regime
and NBN Companies) Bill 2015, 2015, p. 6.
[75]. Ibid.
[76]. Macquarie
Telecom, Submission
to Senate Environment and Communications Legislation Committee, Inquiry into
Telecommunications Legislation Amendment (Access Regime
and NBN Companies) Bill 2015, Attachment 1, 2015, p.
4.
[77]. See
item 31 of Schedule 1 to the Telecommunications
Legislation Amendment (Access Regime and NBN Companies) Bill 2016.
[78]. Telecommunications
Act, section 521.
[79]. ACMA
advises that ‘Australia’s submarine communications cables carry
the bulk of our international voice and data traffic and are a vital component
of our national infrastructure, linking Australia with other countries’, ACMA,
‘About submarine cable protection’, ACMA
website.
[80]. Explanatory
Memorandum, op. cit., p. 16.
[81]. Explanatory
Memorandum, op. cit., p. 17.
[82]. Harbour
Radio Pty Limited v Australian Communications and Media Authority (2015)
231 FCR 329, [2015]
FCA 371. 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.
[83]. Explanatory
Memorandum, op. cit., p. 17.
[84]. ACMA,
Radio
investigation report 3151, ACMA2013/1548, ACMA, Canberra, 24 September 2014.
[85]. There
is no further information on the Toowoomba complaint on the ACMA radio
investigation page on its website.
[86]. Competition and
Consumer Act 2010.
[87]. Explanatory
Memorandum, op. cit., p. 19.
[88]. Ibid.
[89]. 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.
[90]. ACCC,
Division
12 report: record-keeping and reporting rules, ACCC, Canberra, July 2013.
[91]. Explanatory
Memorandum, op. cit., p. 20.
[92]. Ibid.
[93]. Ibid.,
p. 21.
[94]. Ibid.
[95]. Ibid.,
p. 22.
[96]. Ibid.
[97]. The
Competition
and Consumer Amendment (Misuse of Market Power) Bill 2017 is
before the Senate (since 29 March 2017). For more information on the Bill see P
Davidson, Competition and Consumer Amendment (Misuse of Market Power) Bill 2017, Bills digest, 87, 2016–17, Parliamentary Library, Canberra, 29 March
2017.
[98]. Explanatory
Memorandum, op. cit., pp. 22–24.
[99]. Ibid.,
p. 22.
[100]. ACMA,
‘Numbering
plan’, ACMA website, 26 September 2016.
[101]. Explanatory
Memorandum, op. cit., p. 33.
[102]. Communications
Alliance, media release, op. cit.
[103]. Information
in this box derived from the North
American Numbering Plan Administration website and the Federal
Communications Commission’s information pages on
the Plan.
[104]. ACCAN,
Submission to ACMA, op. cit.
[105]. C
Milne, Numbering
trends: a global overview, paper prepared for the International
Telecommunications Union (ITU), ITU, 20 December 2002, pp. 54–55.
[106]. Ibid.
[107]. ZOAK
Solutions, news item, ZOAK Solutions website, op. cit.
[108]. ACMA,
Telephone Numbering: future directions, op. cit., p. 2.
[109]. Ibid.
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