Chapter 3 - Provisions of the bills
This chapter outlines the main provisions of the ten
bills that are the subject of this inquiry.
The approach of the bills is to make 'only minimal
change to the existing regulatory frameworks that apply to the telecommunications
and broadcasting sectors in order to provide for the merger of the ACA and the ABA'.
The Hon Peter McGauran MP explained in the Second
Reading Speech that new regulatory structures were needed to deal with changes
within the communications industry:
It is becoming increasingly difficult for two separate
regulators, one of which is primarily focused on infrastructure and carriage
issues and the other focused chiefly on content issues, to provide a holistic
response to convergence. The establishment of the ACMA will enable a
coordinated regulatory response to converging technologies and services. The
new authority will be better placed to take a strategic view of wider
Benefits to industry will include a reduction in duplication in
the compliance process with improvements in the coordination of regulatory
functions. A single authority will be better placed to coordinate
telecommunications and broadcasting issues in international fora such as the
International Telecommunication Union. In addition, a single authority will
have the potential to manage resources to enable a timely response to periods
of high demand for spectrum planning, and create enhanced opportunities to
attract and retain staff and to broaden staff expertise.
The Australian Communications and Media Authority Bill
2004 (the ‘main Bill’) establishes the new body,
the Australian Communications and Media Authority (ACMA) and sets out its
functions, powers and accountability requirements.
The Australian Communications and Media Authority
(Consequential and Transitional Provisions) Bill 2004 (the ‘Consequential
Bill’) repeals the Australian
Communications Authority Act 1997 and the provisions of the Broadcasting Services Act 1992 that
relate to the ABA. It also replaces
references to the ABA and the ACA
in other Commonwealth legislation with references to the ACMA.
Eight other bills amend existing Acts that impose taxes
or fees by replacing references to the ABA
or the ACA with references to the ACMA. Under section 55 of the Constitution,
laws that impose taxation must deal only with the imposition of taxation.
Consequently separate bills are necessary, and they are:
Datacasting Charge (Imposition) Amendment Bill 2004;
Radiocommunications (Receiver Licence Tax) Amendment Bill 2004;
(Spectrum Licence Tax) Amendment Bill 2004;
Radiocommunications (Transmitter Licence Tax) Amendment Bill 2004;
Licence Fees Amendment Bill 2004;
Telecommunications (Carrier Licence Charges) Amendment Bill 2004;
Telecommunications (Numbering Charges) Amendment Bill 2004; and
Television Licence Fees Amendment Bill 2004.
The main Bill
Key provisions in the main Bill
are outlined below.
Functions and powers
Part 2 of the Bill deals
with the ACMA's establishment, functions, powers and liabilities.
The ACMA is established under clause 6 and its
functions are set out in clauses 7-11. Functions are grouped under
telecommunications (clause 8), spectrum management (clause 9) and broadcasting,
content and datacasting (clause 10). These functions are essentially the same
as those currently set out in the Australian
Communications Authority Act 1997
and the Broadcasting Services Act 1992. Some additional functions are
included, such as monitoring and reporting to the Minister on the operation of
certain Acts listed in clauses 8 and 9, and reporting and advising the Minister
on the Internet industry (paragraphs 10(n) and 10(q)).
The ACMA is also given a range of other functions,
including providing services or facilities on behalf of the Commonwealth
relating to radiocommunications or telecommunications; providing for electronic
addressing; and any functions
conferred by any other law (clause 11). Such additional functions are
equivalent to the ACA's current additional functions.
The ACMA will have the power to do 'all things
necessary and convenient' for the performance of its functions, other than the
power to acquire, hold or dispose of property, enter into contracts or lease
land or buildings (clause 12). The clause specifically provides that the ACMA
may sue. ACMA's financial liabilities are liabilities of the Commonwealth
Both the ABA
and the ACA are bodies corporate to
which the Commonwealth Authorities and Companies
Act 1997 applies. Both bodies have a Chair, Deputy Chair and other
part-time or full-time members (up to three for the ACA and five for the ABA).
DCITA proposed in its 2003 discussion paper that the
ACMA should also be a government authority under the CAC Act. However, the
model that has been adopted for ACMA is that of a prescribed agency under the Financial Management and Accountability Act
1997. Such agencies do not have a separate legal identity but act as agents
of 'the Commonwealth'. Thus they may
not hold money or property in their own name (clause 12). The Consequential
Bill provides for the transfer of the assets and liabilities of the ABA
and ACA to the Commonwealth.
In the public hearing, departmental officers explained how
this decision came about:
That arose out of what was called the Uhrig report, which was a
look at governance done through the Finance and Administration portfolio where
all government agencies across the Commonwealth were looked at in terms of
their governance arrangements. I guess ACMA is probably the first one off the
list where it was decided that the FMA approach was really more suited to an
agency which is funded by the government, raises money in relation to the
government, and has that regulatory role. It was decided that the governance
arrangement under the FMA Act was more suited to that than the CAC
arrangements. The ACCC is a FMA agency, so it brings it into line with the ACCC.
Constitution, membership and staffing
Part 3 of the Bill deals
with ACMA's constitution and membership. Clauses 19–20 provide that the ACMA
shall consist of a Chair and Deputy Chair (both full-time appointments), and 1
to 7 other members, all of whom are appointed by the Governor-General.
Appointments may be made for up to five years and may be renewed, but must not
extend beyond ten years (clause 21). Clauses 22–23 address acting appointments.
Clauses 24–25 allow the Minister to appoint any number
of associate members for specific purposes, such as inquiries or
investigations. The terms and conditions of appointment of members and
associate members, including termination of appointment, are dealt with in
ACMA staff will be people appointed or employed under
the Public Service Act 1999 (clause
54) or staff on loan from other Commonwealth Departments, authorities,
Commonwealth controlled companies or bodies established under a law of the
Commonwealth for a public purpose (as outlined in clause 55). The Chair will be
the head of the statutory agency for the purposes of the Public Service Act 1999 (subclause 54(2)). Clause 63 specifies that
the Chair is not subject to the ACMA's direction in performance of certain
functions or powers as Chief Executive under the FMA Act or agency head under
the Public Service Act 1999.
Decision-making and delegation
Clauses 36-45 address meeting procedures such as
quorums, and decisions taken outside meetings.
Clauses 46-49 allow ACMA to establish one or more
Divisions, composed of at least three members, to undertake specific functions
that ACMA delegates.
Clauses 50-53 deal with delegations. ACMA may delegate
any or all of its functions to a Division (clause 50) or to a member, associate
member, staff member or member of a Commonwealth authority whose services are
made available to ACMA (clause 51). A Division may delegate such functions and
powers to others (clause 52), except in relation to specified powers under the Broadcasting Services Act 1992. Those
non-delegable powers, set out in clause 53, include the power to cancel or
suspend licences, impose or vary licence conditions, initiate hearings and
refer matters for prosecution.
Ministerial direction and other constraints on functions
Under the current legislative framework, there are
differences in the extent to which the Minister can direct the functions of the
ABA and the ACA.
Ministerial direction of the ABA
is limited to directions of a general nature, except for specific powers
itemised in legislation. This
restriction has been described as 'aimed at limiting the ability of Ministers to
influence the allocation of individual broadcasting licences and other
decisions made by the ABA'.
By contrast, the Minister has significant capacity to
direct the ACA in its regulatory functions, as he or she has a general power to
give written directions in relation to the performance of the ACA's functions
and the exercise of its powers.
Since the ACA was established, Ministerial directions 'have played a
significant part in the ACA's regulation of telecommunications and
Rather than adopting a single approach, the main Bill
preserves the existing different approaches to different types of functions.
The Minister will have the power to give the ACMA written directions in
relation to the performance of its functions and the exercise of its powers
(clause 14). However, such directions may only be 'of a general nature' if they
relate to the ACMA's broadcasting, content or datacasting functions or powers
relating to those functions, except where the Broadcasting Services Act 1992 gives the Minister other specific
powers to direct. Those specific powers to direct will not be affected by the
main Bill. Accordingly:
The power of the Minister to direct the ACMA will be equivalent
to the current powers of the Minister to give directions in relation to the
telecommunications, spectrum management and additional functions performed by
the ACA ... and in relation to the functions of the ABA
Clause 15 provides that the ACMA will not be subject to
the Commonwealth's direction otherwise than under the main Bill
or another Act (a provision which is equivalent to current provisions).
Clause 16 also requires the ACMA to perform its
broadcasting, content and datacasting functions in a manner consistent with the
CER Trade in Services Protocol, a requirement
also contained in current legislation.
Annual reporting and corporate plans
Clause 56 requires the ACMA each year to prepare and
give to the Minister a corporate plan, covering at least a three year period.
Clause 57 requires the AMCA to make an annual report to
the Minister, who shall table it in the Parliament within 15 sitting days. The
report must include specified matters, including copies of Ministerial
directions, instruments given by ACMA to carriers and carriage service
providers, and reports on complaints and other matters under the Telecommunications Act 1997.
The ACMA may establish advisory committees to assist it
in performing its functions (clause 58). The Consumer Consultative Forum
currently established under the Australian
Communications Authority Act 1997 is continued under clause 59.
Part 8 of the Bill provides for a variety of matters,
including ACMA's power to make determinations that fix charges (clause 60) and
to define expressions used in specified instruments (clause 64); providing an
offence of using ACMA's name, acronym or symbol (clause 66); requiring ACMA to
maintain a register of policy notifications and ministerial directions (clause
67); and a regulation-making power (clause 68). Many of these ancillary
provisions are similar to existing provisions of the ACA Act.
The Bill provides for
the ACMA to be established on proclamation or on 1 July 2005 if not proclaimed before that date (clause 2).
Main provisions of the Consequential Bill
Schedules 1–3 of the Consequential Bill amend various
Acts in line with changes made by the main Bill.
In particular, Schedule 1 item 5 repeals the Australian Communications Authority Act
1997. Items 6–58 repeal sections of the Broadcasting
Services Act 1992 that refer to the ABA
and its interaction with the ACA, and insert references to the ACMA where
Schedule 2 changes abbreviated references. Schedule 3
makes minor amendments to bills that are anticipated to be before Parliament in
relation to the Criminal Code and the Ombudsman
Act 1976, as well as amendments to provisions of the Criminal Code that are
not yet in force.
Schedule 4 contains transitional provisions, including
by providing for the transfer of the assets and liabilities of the ABA
and ACA to the Commonwealth (Part 2).