Report

Report

Introduction

The Radiocommunications Legislation Amendment Bill 1999, the Radiocommunications (Receiver Licence Tax) Amendment Bill 1999 and the Radiocommunications (Transmitter Licence Tax) Amendment Bill 1999 were referred to the Senate Environment, Communications, Information Technology and the Arts Legislation Committee on 10 March 1999 by the Selection of Bills Committee (Report No 3 of 1999). The Committee was required to report to the Senate by the 26 April 1999. The tabling date was subsequently extended to Tuesday 11 May 1999.

The Bills

The Radiocommunications Legislation Amendment Bill 1999 makes various, unrelated minor amendments which have been requested by the Australian Communications Authority (ACA), after consultations with the telecommunications industry and consumers in order to aid the provision of telecommunications services.[1]

In particular, the Bill amends the Radiocommunications Act 1992 and the Radiocommunications Taxes Collection Act 1983 to:

The Radiocommunications (Receiver Licence Tax) Amendment Bill 1999 and the Radiocommunications (Transmitter Licence Tax) Amendment Bill 1999 make the amendments necessary to ensure that in future the relevant licence taxes will be calculated directly by reference to the periods for which the licences are effective.

Scrutiny of Bills Committee Report

The Committee notes that the Scrutiny of Bills Committee noted two concerns with the Radiocommunications Legislation Amendment Bill 1999 in its Alert Digest No. 3 of 1999 and reported on the Minister for Communications, Information Technology and the Arts’ responses to its letters on those concerns in its Fifth Report of 1999.

The Scrutiny of Bills Committee sought the Minister’s advice in relation to proposed new subsection 122A(1). That amendment would allow the Australian Communications Authority (ACA) to delegate the power to issue certificates of proficiency in the operation of a specified class of transmitters to a “body or organisation” with no further limit or qualification on the categories of potential delegates.

In response to the Scrutiny of Bills Committee’s letter, the Minister pointed out that since the ACA must act in a manner consistent with the spirit of the Australian Communications Authority Act 1997, it would be unlikely to use its powers of delegation inappropriately. The Minister also considered that since the ACA must report its actions to the Minister, its powers of delegation are subject to ministerial review, which constituted ‘sufficient oversight’ in his view.

The Scrutiny of Bills Committee also pointed to item 1 of Schedule 3 to the bill which states that amendments to be made by items 8 and 9 of Schedule 2 (to ensure that Australia was able to assert its taxing rights over income from the use of spectrum licences owned by non-residents) would apply from 11 March 1998, the date the Treasurer issued a press release to that effect. The Scrutiny of Bills Committee pointed to the fact that since more than 6 months have elapsed since the press release was issued, the Senate’s resolution of 8 November 1988 might apply.

The Senate’s Resolution states that:

Where the Government has announced, by press release, its intention to introduce a Bill to amend taxation law, and that Bill has not been introduced into the Parliament or made available by way of publication of a draft Bill within 6 calendar months after the date of the announcement, the Senate shall, subject to any further resolution, amend the Bill to provide that the commencement date of the Bill shall be a date that is no earlier than either the date of introduction of the Bill into the Parliament or the date of publication of the draft Bill.[2]

In response to the Scrutiny of Bills Committee’s letter on this matter, the Minister advised that he had sought the advice of the Treasurer who had replied that it was “desirable to maintain the date of effect at 11 March 1998 to preclude problems of tax avoidance” by owners of spectrum licences. Since none of the spectrum licences have been used to date, the Scrutiny of Bills Committee did not find the reason given sufficient for the Senate to fail to apply the terms of its resolution of 8 November 1988.[3]

This Committee’s Inquiry

The Senate Environment, Communications, Information Technology and the Arts Committee advertised its inquiry in The Australian and The Australian Financial Review and wrote to a number of organisations with an interest in the radiocommunications industry inviting submissions. The Committee received 3 submissions, one from the Department of Communications, Information Technology and the Arts, one from Motorola Australia and one from J.R.D. Communications Proprietary Limited.

Meetings

The Committee considered the Bill and the issues raised in submissions at 2 private meetings. It decided not to hold a public hearing. However, the Committee contacted the three organisations that had sent in submissions to offer them the opportunity to make further written comment on the bills. Committee members also asked the Department of Communications, Information Technology and the Arts to answer a number of specific questions. The answers to those questions are at Appendix 1.

The Issues

In its submission, Motorola was supportive of the amendments proposed in the Radiocommunications Legislation Amendment Bill 1999 stating:

Motorola Australia gives wholehearted support to the proposed amendments and can state that their effect will be to expedite our plans to expand our trunked radio systems and offer a wider range of services to many more members of the community.[4]

Motorola’s main concern was with the issue of sharing broadcasting spectrum with radiocommunications services. It supports the amendments proposed in the Bill (Schedule 2, sections 3,4,5 and 10) which it believes “will greatly facilitate the sharing of Television spectrum and provide an expansion path for (our) trunked radio systems.[5]

The Department of Communications, Information Technology and the Arts (DOCITA) explained in its submission that under the current legislative framework there are restrictions on sharing spectrum in spite of the fact that:

There are a number of radiocommunications services that can share broadcasting spectrum without any risk of interfering with broadcasting services.

In DOCITA’s view, the current bill would improve the situation:

The proposed amendments will allow the ACA and the ABA to make written agreements allowing the licensing of other radiocommunications services in the broadcasting services bands. They will also provide a mechanism for cancelling such agreements. This will provide greater certainty to the marketplace by providing criteria under which any agreement reached between the ACA and the ABA may subsequently be revoked.[6]

J.R.D. Communications Proprietary Limited’s main concern was with Subsection 100(4A) of the proposed legislation. It sought an assurance that:

In the event that the existing and new licences have both been allocated in accordance with ‘correct frequency coordination procedure under section 266A of the Act” ... the rights of the existing licence holder, who may well have considerable financial investment in communications infrastructure and a responsibility of service to his clients, must take precedence in the real event of “unacceptable” interference, without the need to resort to expensive Civil litigation.[7]

J.R.D. would like the ACA to maintain a role in “policing” the spectrum and in resolving any dispute that might arise. In discussions with the Committee, officers of the Department of Communications, Information Technology and the Arts stated that in their view, the incumbents have priority to the frequency being used and any new entrant will have to co-ordinate with the existing players to eliminate interference.[8]

Conclusion

In view of the fact that no more than 3 submissions were received to this inquiry, the Committee concludes that the consultation process with the industry was conducted satisfactorily and that the amendments proposed in the bills are supported by the majority of players in the radiocommunications industry. Accordingly,

The Committee recommends to the Senate that the Bills proceed.

 

Senator Alan Eggleston

Chair

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