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1998-1999-2000
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
COMMUNICATIONS AND THE ARTS
LEGISLATION AMENDMENT BILL
2000
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Communications, Information Technology and the
Arts, Senator the Hon. Richard Alston)
ISBN: 0642 454388
The Communications and the Arts Legislation Amendment Bill 2000 (the Bill)
makes a series of minor administrative and consequential amendments
to:
§ the
Public Lending Right Act 1985;
§ the Telecommunications Act
1997;
§ the Telecommunications (Consumer
Protection and Service Standards) Act 1999;
and
§ the
Trade Practices Act 1974.
The Public Lending Right Act 1985 (the PLR Act) provides the
legislative framework for the Public Lending Right (PLR) Scheme. PLR is a
cultural program that makes payments to eligible Australian creators and
publishers in recognition that income is lost from the free multiple use of
their books in public lending libraries. PLR also has a broader cultural
objective whereby the existence of the scheme encourages the creation of books
by Australians and the publication of books in Australia. For the purposes of
the Act, a Public Lending Right Committee is appointed by the Minister to
administer the PLR Scheme.
A recent evaluation of the PLR Scheme examined
the efficiency and effectiveness of the Scheme. While the Review Committee
found the scheme to be effective and efficient, it made a number of
recommendations to strengthen the objectives of the scheme and streamline and
update operational procedures of the program.
This Bill implements the
evaluation recommendation that a statement of objectives of the Scheme be
incorporated into the PLR Act. The other minor amendments to the PLR Act change
the definition of prescribed persons to more accurately reflect the objectives
of the Act, remove the references in the PLR Act to beneficiaries as prescribed
persons, and clarify the process of making final payments in respect of deceased
creators.
The Bill will amend the Telecommunications Act 1997 (the TA) to
provide carriers and carriage service providers (CSPs) with immunity in certain
emergency situations and when required to comply with a designated disaster
plan. An immunity for carriers and CSPs already exists in section 313 of the TA
when assisting with law enforcement and in certain other situations. The
amendments in this Bill ensure that a similar immunity is extended to carriers
and CSPs in emergency situations and when complying with designated disaster
plans.
Section 315 of the Act provides that a senior police officer may
request CSPs to suspend the supply of a carriage service in an emergency
situation. The Bill will ensure that a CSP will not be liable for damages as a
result of compliance with such a request.
Similarly, sections 344 to 346
of the TA provide for licence conditions and service provider rules to require
carriers and CSPs to comply with designated disaster plans prepared by the
Commonwealth, State or Territory. The Bill will ensure that carriers and CSPs
will not be liable for damages as a result of compliance with designated
disaster plans.
The minor amendment to the Telecommunications (Consumer Protection and
Service Standards) Act 1999 substitutes an Australian Business Number (ABN)
for an Australian Company Number (ACN) reference, for the Telecomunications
Industry Ombudsman Limited. This is consistent with the Government’s
policy to make the ABN the single business identifier for Commonwealth
purposes.
The Bill makes three amendments to the Trade Practices Act 1974 (TPA).
The amendments fix an anomaly in the TPA so as to enable the Australian
Competition and Consumer Commission (ACCC) to issue an advisory notice at the
same time as it issues a Part A competition notice, rather than at the time the
competition notice comes into effect. The advisory notice provides guidance on
how the recipient might change its conduct so it is no longer anti-competitive.
The amendments will thus enable the ACCC to give earlier guidance and may lead
to more rapid modification of anti-competitive conduct, possibly before a notice
comes into force.
Under the TPA, the ACCC must monitor and report on
specified telecommunications charges paid by customers and on compliance by
carriers and CSPs with the universal service obligation (USO). The Bill updates
a reference in the TPA from the Telecommunications Act 1997 to the
Telecommunications (Consumer Protection and Service Standards) Act 1999,
which now covers regulation of USO charges. The Bill also requires the ACCC to
monitor and report on each digital service provider’s compliance with the
digital data service obligation in the same way it monitors and reports on
compliance with the USO.
The third amendment to the TPA makes minor
changes to the processes by which the ACCC exercises procedural functions in an
access arbitration. These amendments will improve the efficiency with which the
ACCC can progress access arbitrations under Part XIC of the TPA by enabling a
nominated member of the ACCC as constituted for the arbitration, rather than all
the members, to exercise the procedural powers. The Bill will eliminate undue
delay caused by the temporary absence of a member, improving the efficiency of
the arbitration process. Procedural powers cover such matters as calling for
submissions or taking evidence, and do not include the ability to make, vary or
revoke determinations or give draft determinations.
The Bill will not have any financial impact on Commonwealth revenue or
expenditure.
Clause 1 provides for the citation of the Communications and the Arts
Legislation Amendment Act 2000.
The Act will commence on Royal Assent.
By virtue of this clause, provisions of the Public Lending Right Act 1985
(the PLR Act), the Telecommunications Act 1997 (the TA), the
Telecommunications (Consumer Protection and Service Standards) Act 1999
(the TCPSS Act) and the Trade Practices Act 1974 (the TPA) are amended or
repealed as set out in Schedule 1 to the Bill, and any other item has effect
according to its terms.
This clause provides that the amendments to the PLR Act contained in
Schedule 1 to the Bill will only relate to claims made after the commencement of
this Act. This means that the amendments in the Bill will not have any
retrospective application.
Clause 5 – Application provision
– immunity of carriers and carriage service providers
This
clause provides that the amendments of the TA which relate to carrier and
carriage service provider immunity (see items 6 and 7 of Schedule 1) apply to
acts or omissions occurring after the commencement of this Act. This means that
any acts or omissions which occurred before the commencement of this Act will
not attract statutory immunity.
This is a transitional provision to ensure that advisory notices made
under subsection 151AQB(2) of the TPA which are in force before this Act
commences remain in force notwithstanding the repeal of that subsection (see
discussion at item 9 of Schedule 1).
Item 1 – New section 2A – Objects of Act
This item
inserts a new section which is a statement of the objects of the Public
Lending Right Act 1985 (the PLR Act). The item sets out two objects of the
PLR Act. The first, in new paragraph 2A(a) is to make payments to Australian
creators of books (wherever they are resident) and publishers of books in
Australia in recognition of lost income from their books being available for use
in public lending libraries in Australia. The second, in new paragraph 2A(b),
is to support the enrichment of Australian culture by encouraging the creation
of books by Australians and the publication of books in Australia.
As
originally enacted, the PLR Act did not include a statement as to the objects of
the Act. In its report titled “Evaluation of the Public Lending Right
Scheme”(1999), the Public Lending Right Scheme Evaluation Steering
Committee recommended that the purposes of the PLR Act are much broader than
simply providing recompense for lost income and that this should be explicitly
stated in the legislation. This amendment, therefore, seeks to redress an
omission in the original enactment.
Item 2 – Subsection
5(4)
This item clarifies that the term “prescribed
person” means any of the persons listed in subsection 5(4). Pursuant to
subsection 5(2), the Public Lending Right Scheme may only provide for payments
to be made to a “prescribed person”.
Item 3 –
Paragraph 5(4)(b)
This item removes from the definition of
“prescribed person” the widow, widower or child of a deceased
Australian author, or a person having a relationship or association with the
deceased author of a kind specified in the Public Lending Right Scheme. The
objectives of the PLR Act are to make payments to creators and publishers of
books and it is considered inconsistent with those objectives to allow the
Scheme to include payments for specific family members of authors in their own
right other than in limited circumstances.
Section 26 of the PLR Act
provides that where a person is to receive a payment under the Scheme and the
payment has not been made at the date of death of that person, the payment is to
be made to their legal personal representative. As section 26 provides for
payment to the legal personal representative where the creator has died, it is
appropriate to remove the persons listed in paragraph 5(4)(b) and rely on
section 26 in those circumstances. Nothing in section 26 prevents the Scheme
from limiting the number of payments to be made to the legal personal
representative after the death of the creator.
Item 4 –
Paragraph 5(4)(c)
This item omits from paragraph 5(4)(c) the words
“or otherwise contributed to its form or contents”. The purpose of
this amendment is to limit this category of “prescribed persons” to
Australian persons who illustrated, translated, compiled or edited the book and
remove the uncertainty associated with determining other forms of contribution.
This item clarifies that the category is intended to cover those who made an
intellectual contribution to the creation of a book and is not intended for
persons who make other contributions.
Item 5 – Paragraph
5(4)(d)
This item removes from the definition of “prescribed
person” the widow, widower or child of an Australian person who
illustrated, translated, compiled or edited the book or otherwise contributed to
its form or contents and who has died. The purpose of this item is the same as
that in relation to items 3 and 4.
Item 6 – New subsections 315(3A) and (3B) – carriage
service provider immunity
Section 315 of the Telecommunications
Act 1997 (the TA) provides that a senior police officer may request a
carriage service provider to suspend the supply of the carriage service in an
emergency. Subsection 315(1) of the TA sets out the circumstances that
constitute an emergency for the purpose of suspending supply. They include if a
senior police officer has reasonable grounds to believe that an individual with
access to a particular carriage service has threatened to kill or seriously
injure another person and the suspension of the service is reasonably necessary
to prevent the threat from being made again.
A carriage service
provider may comply with such a request but is not bound to (subsection 315(2)).
There is a concern that a carriage service provider may be reluctant to comply
with such a request for fear of legal action from the person whose service was
suspended.
Subsections 313(5) and (6) of the TA already provide immunity
to carriers, carriage service providers and their officers, employees and agents
for actions carried out in good faith to assist Government in the performance of
duties as outlined in subsection 313(3) (namely, enforcing the criminal law and
laws imposing pecuniary penalties, protecting the public revenue and
safeguarding national security). As a court may find that this immunity does
not automatically apply to section 315, the proposed amendments remove any doubt
that carriage service providers acting under good faith in compliance with a
request under subsection 315(1) are covered by a statutory
immunity.
Proposed new subsections 315(3A) and (3B) will specifically
provide a statutory immunity to a carriage service provider and an officer,
employee or agent of the provider for an action or other proceedings for damages
for an act done or an omission made in good faith in compliance with a request
under subsection 315(1) to suspend supply of the carriage service in an
emergency.
Immunity provisions are necessary to protect a carriage
service provider to ensure that they are not liable in damages for acting in
good faith to suspend supply in an emergency, and to ensure that carriage
service providers are not discouraged from complying with a request to suspend
supply. This statutory immunity would not be absolute. It would only apply in
relation to a carriage service provider’s compliance with a request under
subsection 315(1).
Sections 344 to 346 of the TA enable licence conditions and service
provider determinations to require carriers and carriage service providers to
comply with designated disaster plans prepared by the Commonwealth, or a State
or Territory.
There is a concern that compliance with a designated
disaster plan, in accordance with a licence condition or a service provider
determination, could leave a carrier or carriage service provider open to legal
action.
New section 346A provides a statutory immunity to a carrier and a
carriage service provider and an officer, employee or agent of the carrier or
provider for an act or other proceedings for damages for an act done or an
omission made in good faith in compliance with a designated diaster plan which
they are required to comply with as part of a licence condition or a service
provider determination.
Immunity provisions are necessary to protect a
carrier or carriage service provider to ensure that they are not liable in
damages for acting in good faith in compliance with legal obligations under
designated disaster plans.
This statutory immunity would not be absolute.
It would only apply in relation to the carrier’s or carriage service
provider’s compliance with a designated disaster
plan.
Telecommunications (Consumer Protection and
Service Standards) Act 1999
Item 8 – Subsection
128(3) – ABN number
This proposed amendment substitutes a
reference to the Australian Company Number (ACN) of the Telecommunications
Industry Ombudsman Limited with the new Australian Business Number (ABN). This
is consistent with the Government’s policy to make the ABN the single
business identifier for Commonwealth purposes.
Item 9 – New subsections 151AQB(1) and (2) - Advisory
notices
Section 151AQB of the Trade Practices Act 1974 (the
TPA) enables the Australian Competition and Consumer Commission (ACCC) to give
an advisory notice to a recipient of a competition notice. The advisory notice
provides guidance as to how the notice recipient might change its conduct so it
is no longer anti-competitive. Currently, section 151AQB only allows an
advisory notice to be issued once a competition notice comes into effect. In
some instances a competition notice will not come not effect immediately upon
issue. In such instances the current wording of section 151AQB would not enable
the ACCC to issue an advisory notice until after the competition notice is in
force.
It is preferable, however, that the ACCC have the power to issue
an advisory notice at the same time as the competition notice is issued as it
would enable the ACCC to give earlier guidance on how conduct might be modified
and may lead to quicker modification of offending conduct.
The proposed
new subsection 151AQB(1) replaces the current subsections 151AQB(1) and (2) and
provides that an advisory notice may be issued at the same time as a competition
notice or at any time after the competition notice has been issued. This
addresses the anomaly in the current subsection 151AQB which does not enable an
advisory notice to be issued until after a competition notice comes into
force.
Item 10 – Subsection 151AQB(3)
This is a consequential amendment necessary as a result of amendments to
section 151AQB (see above discussion at item 9). It replaces a reference to
‘A notice under subsection (2)’ with a reference to ‘An
advisory notice’.
Item 11 – Subsection 151AQB(4)
This is a consequential amendment necessary as a result of amendments to
section 151AQB (see above discussion at item 9). It replaces a reference to
‘A notice under subsection (2)’ with a reference to ‘An
advisory notice’.
Item 12 – Subsection 151AQB(5)
This is a consequential amendment necessary as a result of amendments to
section 151AQB (see above discussion at item 9). It replaces a reference to
‘a notice under subsection (2)’ with a reference to ‘an
advisory notice’.
Item 13 – Subsection 151AQB(6)
This is a consequential amendment necessary as a result of amendments to
section 151AQB (see above discussion at item 9). It replaces a reference to
‘a notice under subsection (2)’ with a reference to ‘an
advisory notice’.
Item 14 – Subsection 151AQB(7)
This is a consequential amendment necessary as a result of amendments to
section 151AQB (see above discussion at item 9). It replaces a reference to
‘a notice under subsection (2)’ with a reference to ‘an
advisory notice’.
Item 15 – Subsection 151AQB(7)
This is a consequential amendment necessary as a result of amendments to
section 151AQB (see above discussion at item 9). It replaces a reference to
‘the notice under subsection (2)’ with a reference to ‘the
advisory notice’.
Item 16 – Paragraph
151CM(1)(c)
Section 151CM of the TPA requires the ACCC to monitor and
report on specified telecommunications charges paid by consumers. Paragraph
151CM(1)(c) currently requires the ACCC to monitor the adequacy of each
universal service provider’s compliance with Division 5 of Part 7 of the
Telecommunications Act 1997 which previously dealt with the regulation of
universal services charges. The regulation of universal services charges is now
dealt with in Division 11 of Part 2 of the Telecommunications (Consumer
Protection and Service Standards) Act 1999, as a result of amendments made
to that Act by the Telecommunications (Consumer Protection and Service
Standards) Amendment Act (No. 2) 2000.
The proposed amendment
replaces the incorrect reference to Division 5 of Part 7 of the
Telecommunications Act 1997 with the correct reference to Division 11 of
Part 2 of the Telecommunications (Consumer Protection and Service Standards)
Act 1999.
Item 17 - New paragraph 151CM(1)(d)
The
proposed amendment includes an additional paragraph requiring the ACCC to
monitor and report to the Minister on the adequacy of each digital data service
provider’s compliance with its obligations under Division 12 of Part 2 of
the Telecommunications (Consumer Protection and Service Standards) Act
1999 (the TCPSS Act) which deals with the regulation of digital data service
charges.
This amendment was intended to be introduced by item 18 of
Schedule 4 to the Telecommunications Legislation Amendment Act 1999.
However, due to technical anomalies relating to the date of operation of various
provisions of this Act, these amendments were not made.
Subsequent
amendments to the TCPSS Act by the Telecommunications (Consumer Protection
and Service Standards) Amendment Act (No. 2) 2000 have meant that the
correct reference to the Division dealing with the regulation of digital data
service charges is now Division 12 of Part 2 of the TCPSS Act, not Division 5A
of Part 2 of the TCPSS Act, as originally set out in item 18 of Schedule 4 to
the Telecommunications Legislation Amendment Act 1999.
Item 18
- New section 152CWA – Exercise of procedural powers by Commission
members
Subdivision D of Division 8 of Part XIC of the TPA deals with
the procedures of the ACCC for the purposes of resolving telecommunications
access disputes. For the purposes of an arbitration the ACCC is to be
constituted by 2 or more members of the ACCC nominated in writing by the
Chairperson (subsection 152CV(1) of the TPA).
The ACCC is given specified
powers for the purposes of arbitrating the access dispute. For example, it may
take evidence on oath, summons witnesses, make a confidentiality order and refer
matters to an expert (see sections 152DC and 152DD of the TPA).
Currently these powers may only be exercised by the ACCC, as constituted
for the purposes of the arbitration. To increase the efficiency and
effectiveness of the access arbitrations it is proposed to enable an individual
sitting member to exercise ‘procedural powers’ in certain
circumstances. This will remove the current difficulty where the ACCC cannot
exercise ‘procedural powers’ where a sitting member is absent or is
not available, without reconstituting the ACCC for the purposes of the
arbitration.
The proposed amendments enable the Chairperson, or a sitting
member nominated by the Chairperson to exercise the ‘procedural
powers’ of the ACCC in relation to the arbitration.
Proposed new
subsection 152CWA(1) deals with when the Chairperson of the ACCC is part of the
arbitration. In this case the ‘procedural powers’ may be exercised
by either the Chairperson, or a sitting member nominated by the Chairperson, or
both.
Proposed new subsection 152CWA(2) deals with when the Chairperson
is not part of the arbitration. In this case the ‘procedural powers’
may be exercised by either the presiding member of the arbitration (as nominated
by the Chairperson under subsection 152CW(2) of the TPA), or another sitting
member nominated by the Chairperson, or both.
‘Procedural
power’ is defined in proposed new subsection 152CWA(3) to exclude a power
conferred by Division 8 of Part XIC of the TPA to make, vary or revoke a
determination or a power conferred by this Division to give a draft
determination.
This means that a nominated member may make a
confidentiality order or summons witnesses without needing to call together all
arbitration members of the ACCC. However, an individual member will not be able
to make, vary or revoke a determination or to give a draft determination. These
powers have been excluded from the definition of ‘procedural powers’
as they go beyond the exercise of a merely procedural power and should be
properly exercised by the members of the arbitration as a whole.