Government Members' Dissenting Report
This experience tells us that self-regulation is effective and
appropriate in some circumstances, while in others a stronger emphasis on
compliance and enforcement is called for. Some refinements to regulatory policy
and the framework for consumer protection regulation will maximise the outcomes
of self-regulation and improve the consumer protection regime overall.
Widespread change is not required.
Government members of the Senate Environment,
Communications, Information Technology and the Arts References Committee
believe that the Committee's inquiry into the establishment of the Australian
Communications and Media Authority (ACMA) was a rushed exercise which sought to
argue that the establishment of the ACMA was a lost opportunity to review the
regulatory regime. However, the establishment of ACMA is the beginning of the
process of review and change in which the Government sees the creation of the ACMA
as an important building block.
The administrative merger of the ABA
and the ACA is part of the ongoing attention to emerging convergence issues in
communications and broadcasting. Convergence is having a profound impact on the
communications sector (including broadcasting) and the way consumers, both
residential and business, use communications services. Changing business
strategies, market structures and consumer expectations mean that the existing
regulators are faced with new issues which often cross the traditional
regulatory boundaries of their respective roles. It will become increasingly
difficult for two separate regulators to respond to this changing environment. The
formation of the ACMA will facilitate a coordinated regulatory response to converged
technologies. A combined authority will be better positioned to understand and
respond to emerging market trends.
The responsibility of the ACMA for all spectrum management
functions will enable the long-term regulation of spectrum management to be
better coordinated, and to take into account both telecommunications and
broadcasting interests. However, convergence will not remove the necessity to
continue the often distinctive policy objectives for broadcasting and
telecommunications. For this reason, the establishment of the ACMA will not
mean the removal of the current, separate broadcasting and telecommunications regulatory
environments. Changes to these frameworks will be addressed as and when needed.
As a departmental representative told the Committee:
We only want to reiterate what is well known, that this is obviously
only an institutional administrative merger. It is obviously not dealing with a
range of policy and regulatory reform. That is obviously the intention of the
government, and I guess the government sees this as part of the ongoing
attention that it is giving to emerging convergence issue.
The Government does not support any amendment to the ACMA
package of Bills as proposed by a number of recommendations, but it does agree in
principle with other recommendations made within the majority report.
Recommendations agreed to:
The Committee recommends that the ACCC and the ACMA be encouraged
to develop the closest of possible working relationships, including:
between the ACMA and ACCC governing boards; and
pooling of resources on projects with
relevance to both technical and competition regulation [para. 5.44].
Government Senators agree with the sentiment set out in
recommendation 7 that the ACCC and ACMA be encouraged to develop a closer
The Committee recommends that the Minister establish clear
selection criteria for the appointment of ACMA board members, advertise and
conduct a merit-based selection process to ensure recruitment from the widest
possible talent pool [para. 5.85].
The Government Senators support appointments to the board of
ACMA being merit based.
The Committee recommends that the ACMA clearly establish
mechanisms to ensure that the differing legislative public interest objectives
for the management of broadcasting and telecommunications spectrum are
recognised and fully protected by the merged entity but that anomalies in the
calculation of commercial licence fees for access to spectrum be considered as
part of the policy review provided for in recommendation 1 [para. 5.99].
The Government Senators anticipate that ACMA will recognise
and fully protect the public interest in its management of broadcasting and
In recognition of the need for the ACMA to improve on the consumer
issues performance of the ACA and ABA,
the Committee recommends that at least one member of the ACMA board should have
a background in consumer advocacy and representation [para. 5.123].
The Government Senators fully support consumer advocacy
within the new Authority and endorse recommendation 15.
Recommendations supported in-principle without amending the Bill:
As discussed, Government Senators see the establishment of
ACMA as a first step in a process to address emerging issues within the
converging communications sector. Therefore, the ACMA package of bills provides
simply for the administrative merger of the ABA
and ACA. In light of the need to press ahead with this legislation to establish
ACMA by 1 July 2005 the main
bill does not require amendment to achieve this administrative merger. The
following recommendations are agreed to in-principle by the Government Senators
as the Government is of the view that once the ACMA is established there will
be opportunity for it to analyse its own structure and future direction.
The Committee recommends that the main bill be amended to require
that within 18 months of establishment ACMA commence a review of its
operations, and systematically review the entire regulatory policy for
communications in light of future challenges. The review report should be
tabled in Parliament within two months of its receipt by the Minister. The
review should reconsider the recommendations of both the Productivity
Commission Report on Broadcasting and the ACCC Report on Emerging Market
Structures in the Communications Sector, as well as any policy reviews
currently underway [para.5.15].
The Committee recommends that section 4 of the Broadcasting Services Act 1992 be
amended to place greater emphasis in the ACMA's regulatory policy on fair and
effective resolution of consumer complaints [para 5.57].
The Committee recommends that funding to the ACCC for
telecommunications competition issues be substantially increased as a matter of
urgent priority [para. 5.74].
Government Senators support the ACCC being appropriately
The Committee recommends that section 4 of the Telecommunications Act be amended to
remove the preference for self-regulation and to more closely reflect the
regulatory policy statement under the Broadcasting
Services Act. The revised section should make it clear that Parliament
intends that telecommunication be regulated in a manner that:
promotes the use
of industry self-regulation where this will not impede the long term interests
of end users; and
objects mentioned in section 3 to be met in a way that does not impose
unnecessary financial and administrative burdens on participants in the
Australian telecommunications industry [para. 5.115].
Government Senators agree that the telecommunications
industry should be regulated to ensure that consumer interests are met, but not
at the expense of the participants in the industry. We therefore believe that
each aspect of regulation - the light touch policy of the ABA
and the more regulative approach of the ACA - should be made according to need;
a "horses for courses" approach.
The Committee recommends that the ACA and the ACMA give urgent
consideration to the adoption of the recommendations in the ACA research report
Consumer Driven Communications:
Strategies for Better Representation, as part of a concerted effort to
ensure that the ACMA is more pro-consumer than the ACA and ABA were able to be
and that the Government give urgent consideration to any amendments to
communications legislation that the ACMA deems necessary as a result of such
consideration [para. 5.122].
Government Members agree that ACMA should give consideration
to research and reports regarding consumer representation within the
communication sector. However we do not support the call for such reports to be
adopted in totality. Rather the ACMA should be mindful of these reports and advise
which aspects of their findings are appropriate.
The Committee recommends that the main bill be amended to:
to the promotion of competition as a legitimate means to advance objectives of
consumer protection in clause 8 of the main bill;
the development and enforcement of adequate consumer protection requirements
into clause 8 of the main bill; and
to the enforcement as well as the monitoring of compliance with codes of
practice for broadcasting into clause 10 of the main bill [para. 5.124].
Again, Government Senators see no need to amend the main bill,
but support in principle the need to ensure the enforcement of adequate
consumer protection and the monitoring of compliance of codes for broadcasting.
Therefore recommendation 16 is supported in-principle.
The Committee recommends that Telecommunications
(Consumer Protection and Service Standards) Act 1999 be amended in order to
establish a single Communications Industry Ombudsman [para. 5.141].
Government Senators do not disagree with the possibility
that the TIO could be used to develop a simpler and more streamlined process of
consumer compliant handling. However, we do not consider that the Telecommunications (Consumer Protection and
Service Standards) Act 1999 be amended at this stage. This may be a
decision in which ACMA could advise in the future. Therefore, we support in-principle
Recommendations which are rejected:
Government Senators were disappointed that the non-government
Senators used this inquiry to raise a number of issues which were not pertinent
to the establishment of the ACMA. A number of the majority report's recommendations
dealt with broader issues within telecommunications which were not only outside
the remit of this inquiry but which had been dealt with in previously inquiries
of this Committee. We reject the following recommendations as we rejected them
in previous reports:
The Committee recommends that the main bill be amended to require
the ACMA to provide reports to the Parliament on matters of communications
policy from time to time where the ACMA is of the view current policy settings
are inadequate to meet current or future challenges [para. 5.21].
The Committee recommends that the Productivity Commission be
tasked to undertake a full examination of all options for structural reform in
Australian telecommunications, including but not restricted to, structural
separation of Telstra [para. 5.38].
The Committee recommends that Telstra be required to divest its
shareholding in Foxtel [para. 5.39].
The Committee recommends that the Government should direct the
Australian Competition and Consumers Commission to provide further advice on
its recommendations in its report Emerging Market Structures in the
Communications Sector on the feasibility of introducing a content access regime
The Committee recommends that the Government should direct the
Australian Competition and Consumer Commission to provide further advice on its
recommendations in its report Emerging
Market Structures in the Communications Sector that Telstra be required to
divest itself of its HFC network [para. 5.41].
The Committee recommends that the Government consider the creation
in legislation of a Content Board modelled on the United
Kingdom model to advise the ACMA on content
regulation [para. 5.56].
Government Senators believe that the inclusion of the
establishment of a Content Board within the ACMA is not appropriate at this
time, given that the ACMA will be expected to regulate broadcasting content
under the same principles as the current ABA,
and that the ACMA would alter regulations as required in the future. We
therefore reject recommendation 8.
The Committee recommends that clause 57 of the main bill be
amended to make it clear that reports under the Broadcasting Services Act on complaints received and investigations
conducted will be publicly released [para. 5.148].
While the Government believes that it is necessary to have a
responsible complaints mechanism it is not necessarily appropriate that all
complaints be made public. Therefore Government Senators reject recommendation
This inquiry has produced some useful insights into a number
of issues, and Government Senators support a number of recommendations in-principle.
However, we also note that the establishment of the ACMA is a first step in a
process of regulatory review and change. Therefore there is no need to amend
the package of bills associated with the establishment of the new Authority.
As stated in one submission to the inquiry:
As tabled [the Bills] reflect the Government’s stated intention
of combining the two bodies but not changing the regulatory regimes that they
administer. This...is the best course, given the decision to merge the bodies....To
modify aspects of existing regulatory regimes would be inappropriate, as
consultation with the industries affected by the merger has been conducted on
the basis that it will involve no alteration to regulatory frameworks. If
changes to regulatory structures are to be seriously contemplated....they should
be the subject of appropriate public consultation processes.
Government Senators note that within the communications
industry and wider community there is wide spread support for the establishment
of the ACMA.
Optus supports the merger of the Australian Communications
Authority (ACA) and the Australian Broadcasting Authority (ABA) as put into
effect via the ACMA Bill 2004. We consider that an integrated structure will
allow emerging issues (including in respect of internet regulations and mobile
content) to be optimally addressed in a manner which avoids jurisdictional
overlap and associated inefficiencies and regulatory uncertainty.
The ACMA will be better placed to address the jurisdictional
overlap and associated inefficiencies and regulatory uncertainty which