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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMUNICATIONS LEGISLATION AMENDMENT (DEREGULATION AND
OTHER MEASURES) BILL 2015
TELECOMMUNICATIONS (NUMBERING CHARGES) AMENDMENT BILL
2015
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications,
Senator the Hon. Mitch Fifield)
COMMUNICATIONS LEGISLATION AMENDMENT (DEREGULATION AND
OTHER MEASURES) BILL 2015
TELECOMMUNICATIONS (NUMBERING CHARGES) AMENDMENT BILL 2015
OUTLINE
The Communications Legislation Amendment (Deregulation and Other Measures) Bill 2015
(Bill) contains a package of measures designed to minimise the regulatory burden on the
broadcasting and telecommunications sectors, and to simplify regulation by removing
redundant or otherwise unnecessary provisions. The amendments would contribute to the
Government's agenda to increase productivity by cutting unnecessary red tape by $1 billion
per annum while maintaining important consumer safeguards.
The proposed measures in the Bill would amend the Broadcasting Services Act 1992 (BSA)
to:
streamline account keeping and licence fee administration arrangements for
commercial broadcasters and datacasting transmitter licensees, by removing
unnecessary audit requirements, extending the classes of office holders eligible to
make statutory declarations about gross earnings and providing the Australian
Communications and Media Authority (ACMA) with discretion not to pursue unpaid
licence fees where inefficient to do so;
remove duplicative requirements for licensees, publishers and controllers to notify the
ACMA of certain changes in control of regulated media assets, which will reduce the
administrative burden on affected parties while still allowing the ACMA to maintain
accurate control registers;
provide a consistent classification arrangement for all television programmes,
including films, by removing requirements for certain television broadcasters to apply
different classification standards for films when developing industry codes of
practice;
remove unnecessary duplication in the ACMA's complaints handling and
investigation functions.
The Bill would also:
remove the ability of the Australian Competition and Consumer Commission (ACCC)
to issue tariff filing directions to certain carriers and carriage service providers (CSPs)
under Part XIB of the Competition and Consumer Act 2010 which are unduly
burdensome;
reform the statutory information collection powers of the ACMA and the ACCC, so
as to facilitate monitoring and reporting which keeps pace with changing markets and
consumer behaviour;
amend the Telecommunications Act 1997 and the Telecommunications (Consumer
Protection and Service Standards) Act 1999 to enable the telecommunications
industry to develop an industry-based scheme for the management of telephone
numbering resources, provided certain safeguards are met;
remove redundant and unnecessary legislation including through the repeal of various
spent historical Acts.
Further to the Bill, the Telecommunications (Numbering Charges) Amendment Bill would
make consequential amendments to the Telecommunications (Numbering Charges) Act 1997
(NCA) to reflect that the allocation to and holding of numbers by CSPs, for which charges
arise under the NCA, could in future be managed in accordance with an industry-based
scheme.
FINANCIAL IMPACT STATEMENT
The Bills will not have significant impact on Commonwealth expenditure or revenue.
2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Communications Legislation Amendment (Deregulation and Other Measures) Bill 2015
Telecommunications (Numbering Charges) Amendment Bill 2015
The Bills are compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of Bill
The general purpose of the Communications Legislation Amendment (Deregulation and
Other Measures) Bill 2015 (the Bill) is to minimise the regulatory burden on the broadcasting
and telecommunications sectors, and to simplify regulation by removing redundant or
otherwise unnecessary provisions.
The Bill would amend the Broadcasting Services Act 1992 (BSA) to:
streamline account keeping and licence fee administration arrangements for
commercial broadcasters and datacasting transmitter licensees, by removing
unnecessary audit requirements, extending the classes of office holders eligible to
make statutory declarations about gross earnings and providing the Australian
Communications and Media Authority (ACMA) with discretion not to pursue unpaid
licence fees where inefficient to do so;
remove duplicative requirements for licensees, publishers and controllers to notify the
ACMA of certain changes in control of regulated media assets, which will reduce the
administrative burden on affected parties while still allowing the ACMA to maintain
accurate control registers;
provide a consistent classification arrangement for all television programmes,
including films, by removing requirements for certain television broadcasters to apply
different classification standards for films when developing industry codes of
practice;
remove unnecessary duplication in the ACMA's complaints handling and
investigation functions.
The Bill would also:
amend Part XIB of the Competition and Consumer Act 2010 to remove the ability of
the Australian Competition and Consumer Commission (ACCC) to issue tariff filing
directions to certain carriers and carriage service providers which are unduly
burdensome;
make amendments to the Telecommunications Act 1997 and the Competition and
Consumer Act 2010 to reform the statutory information collection powers of the
ACMA and the ACCC, so as to facilitate monitoring and reporting which keeps pace
with changing markets and consumer behaviour;
amend the Telecommunications Act 1997 and the Telecommunications (Consumer
Protection and Service Standards) Act 1999 to enable the telecommunications
3
industry to develop an industry-based scheme for the management of telephone
numbering resources, provided certain safeguards are met;
remove redundant and unnecessary legislation including through the repeal of various
spent historical Acts.
Further to the Bill, the Telecommunications (Numbering Charges) Amendment Bill would
make consequential amendments to the Telecommunications (Numbering Charges) Act 1997
(NCA) to reflect that the allocation to and holding of numbers by carriage service providers,
for which charges arise under the NCA, could in future be managed in accordance with an
industry-based scheme.
Human rights implications
Measures in the Bill relating to the classification of films broadcast on television potentially
engage the rights of children.
Australia is a signatory to the Convention on the Rights of the Child. This convention is listed
in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Article 3(1) of the CRC
provides that in all actions concerning children, whether undertaken by public or private
social welfare institutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration. Article 3(2) provides that a child is
to be afforded such protection and care as is necessary for his or her well-being, taking into
account the rights and duties of his or her parents, legal guardians, or other individuals legally
responsible for him or her, and, to this end, State Parties shall take all appropriate legislative
and administrative measures.
The Broadcasting Services Act 1992 currently prescribes in subsections 123(3A) to (3D)
particular classification requirements for televising films that must be reflected in the relevant
broadcasting industry codes of practice. These include the requirement that codes of practice
provide for films that are to be broadcast on television to be classified according to the film
classification system provided for by the Classification (Publications, Film and Computer
Games) Act 1995 (Classification Act), and requirements about the times of day for
broadcasting films of particular classifications.
These provisions were originally introduced into the BSA by the Transport and
Communications Legislation Amendment Act (No 3) 1992 to promote consistency between
the classification treatment of films when delivered via cinema or home media (eg.
VHS/DVD), and when delivered via television broadcasts. In the time since these provisions
were introduced, however, the broadcast and non-broadcast classification regimes have
converged to the point where they use a very similar rating framework and methods in
classifying content.
The measures in the Bill would amend the BSA to remove the requirements in subsections
123(3A) to (3D), so as to allow films broadcast on television to be subject to the same
classification framework as applies to other content broadcast on television. The intention is
to remove the concept of 'film' being a distinct, separate form of television programming
subject to a separate (albeit very similar) classification framework.
The measures in the Bill would potentially engage with the rights of children because the
measures would affect the way in which the classification of films broadcast on television is
4
regulated, including the timing of broadcasts. The classification of films broadcast on
television would become a matter for industry codes of practice under the BSA rather than
for the Classification Board under the Classification Act.
However, 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 on television as a result of the removal of the requirements in
subsections 123(3A) to (3D) of the BSA. To the extent that there are very minor differences
between the frameworks, these do not derogate from the protections available in relation to
children.
Also, safeguards currently exist in the BSA to ensure that classification arrangements
contained in industry codes of practice reflect prevailing community standards, and these
would also apply to the arrangements for films broadcast on television. These safeguards
include the requirement that codes of practice are developed in consultation with the ACMA
(subsection 123(1) of the BSA refers), and the ability for the ACMA to determine program
standards to provide appropriate community safeguards where codes of practice are
considered by the ACMA to be deficient (section 125 of the BSA refers). These safeguards
would operate to ensure that classification arrangements for films continue to reflect
prevailing community standards and provide mechanisms for ensuring the continued
protection of the rights of children.
Conclusion
The Bills are compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
5
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
ACCC Australian Competition and Consumer Commission
ACMA Australian Communications and Media Authority
ACMA Act Australian Communications and Media Authority Act 2005
Bill Communications Legislation Amendment (Deregulation
and Other Measures) Bill 2015
BSA Broadcasting Services Act 1992
Competition Act Competition and Consumer Act 2010
CSP carriage service provider
NCA Telecommunications (Numbering Charges) Act 1997
Numbering Charges Bill Telecommunications (Numbering Charges) Amendment
Bill 2015
TCPSS Act Telecommunications (Consumer Protection and Service
Standards) Act 1999
Tel Act Telecommunications Act 1997
6
NOTES ON CLAUSES
COMMUNICATIONS LEGISLATION AMENDMENT (DEREGULATION AND
OTHER MEASURES) BILL 2015
Clause 1 - Short title
Clause 1 provides that the Bill, when enacted, may be cited as the Communications
Legislation Amendment (Deregulation and Other Measures) Act 2015.
Clause 2 - Commencement
Clause 2 of the Bill specifies when the Act would commence. It specifies that the whole of
the Act will commence the day after the Act receives the Royal Assent.
Clause 3 - Schedules
Clause 3 is a machinery provision that would provide that each Act specified in a Schedule is
amended or repealed in accordance with the items of the Schedule concerned, and any other
items in the Schedule have effect according to their terms.
7
Schedule 1 - Streamlining Regulation
Broadcasting Services Act 1992
Item 1 - Section 64
Item 2 - Section 65A (heading)
Item 3 - Section 65A
Item 4 - Section 65B
Part 5 of the BSA sets out rules governing who may be in a position to exercise control (or be
a director of a company in a position to exercise control) of commercial television and radio
broadcasting licences, datacasting transmitter licences and newspapers that are 'associated'
with commercial television or radio broadcasting licence areas (together, 'regulated media
assets'). The primary objective of the rules is to encourage diversity in the control of these
regulated media assets.
To enable the ACMA to monitor compliance with the various diversity and control rules in
Part 5, Division 6 of Part 5 imposes requirements on certain persons to notify the ACMA of
information about changes to the control arrangements of regulated media assets.
Section 63 of the BSA requires each licensee and publisher of a regulated media asset to
notify the ACMA when the licensee or publisher becomes aware that a person becomes, or
ceases to be, in a position to exercise control of the asset, within ten business days of the
licensee or publisher becoming aware of the change in control.
Section 64 of the BSA requires a person who becomes aware that they have come into a
position to exercise control of a regulated media asset to notify the ACMA within ten
business days of becoming aware of the change.
The requirements of sections 63 and 64 are unnecessarily duplicative, requiring that the
ACMA be notified twice about the same change in control of the regulated media asset.
To streamline these arrangements, item 1 of Schedule 1 to the Bill would repeal section 64 so
that the obligation that is placed on an incoming controller of a regulated media asset is
removed. The ACMA would continue to be notified of the change in control by the relevant
licensee or publisher of the asset in accordance with the requirements of section 63.
Items 2, 3 and 4 of Schedule 1 to the Bill would make consequential amendments to sections
65A and 65B of the BSA to remove references to section 64.
Item 5 - Subsections 123(3A) to (3D)
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.
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.
8
Subsections 123(3A) to (3D) also include related time zone and consumer advice
requirements for films that must be included in codes of practice, displacing the requirements
in the industry code of practice which would otherwise apply to all television programmes.
The application of the Classification Act requirements was originally intended to ensure
consistency between classification ratings applied to films when screened in theatre, released
on DVD/VHS and broadcast on television.
Since the enactment of the requirements of subsections 123(3A) to (3D) in 1992, the film and
television classification schemes have converged to the point that they are largely the same.
Accordingly, the original policy intent behind the provisions is redundant. Duplicate
classification rules in industry codes of practice and the BSA are inefficient for broadcasters,
requiring broadcasters to have regard to multiple classification frameworks for the different
kinds of content delivered over the same platform. It is therefore intended that the role of the
Classification Board in classifications being used for films when they are broadcast by
commercial and community television broadcasters and open narrowcasting service providers
will end, with television program classification for these licensees to be solely a matter for
industry codes of practice.
Accordingly, item 5 of Schedule 1 to the Bill would remove the application of the
Classification Act to films broadcast on television by these licensees by repealing subsections
123(3A) to (3D). The repeal of these provisions would allow a single classification scheme
for all television programmes, including films. Certain classification related licence
conditions will also be repealed as a result of the change (see items 12 to 14 below).
Item 6 - Subsection 205B(4)
Item 9 - Subsection 205BA(2)
Subparagraph 205B(1)(c)(ii) of the BSA requires that commercial television and radio
broadcasting licensees provide to the ACMA within 6 months of the end of the financial year
a statutory declaration stating the gross earnings in relation to the licence during the financial
year. Subsection 205B(4) of the BSA requires that the statutory declaration be made by the
chief executive officer (CEO) or secretary of the licensee, which can be administratively
burdensome for some licensees.
Item 6 of Schedule 1 to the Bill would therefore amend subsection 205B(4) to extend the
class of office holders eligible to make a statutory declaration concerning gross earnings to
include a director of the licensee as well as persons who have knowledge of the financial
affairs of the licensee and are authorised to make the declaration by the CEO or secretary.
Item 9 of Schedule 1 to the Bill would make a corresponding amendment to subsection
205BA(2) to similarly extend the class of office holders eligible to make a statutory
declaration concerning gross earnings in relation to a channel A datacasting transmitter
licence.
Item 7 - Subsection 205B(4A)
Item 8 - Subparagraph 205BA(1)(c)(i)
Item 10 - After subsection 205BA(2)
Subparagraph 205B(1)(c)(i) of the BSA requires that commercial television and radio
broadcasting licensees provide to the ACMA a balance-sheet and profit and loss account at
the end of each financial year.
9
Subsection 205B(4A) requires that the balance-sheet and profit and loss account provided by
the licensee under subparagraph 205B(1)(c) be audited documents, unless the licensee is in a
class of licensee excluded from the audit obligation by the ACMA (through legislative
instrument).
The obligation on licensees to provide audited balance-sheet and profit and loss accounts can
be a costly reporting burden for licensees that is not proportionate to any revenue assurance
benefits.
Item 7 of Schedule 1 to the Bill would amend subsection 205B(4A) to remove the
requirement that the financial documents provided to the ACMA be audited, and instead
authorise the ACMA to require a licensee to provide an audited balance sheet and/or audited
profit and loss account on a case by case basis, if considered necessary by the ACMA.
Items 8 and 10 of Schedule 1 to the Bill would make corresponding amendments to section
205BA in relation to the auditing requirements for balance-sheets and profit and loss
accounts provided by channel A datacasting transmitter licensees.
Item 11 - At the end of section 205C
Under the Television Licence Fees Act 1964, Radio Licence Fees Act 1964 and Datacasting
Transmitter Licence Fees Act 2006, commercial television and radio broadcasting licensees
and channel A datacasting transmitter licensees respectively are required to pay to the
Commonwealth specified fees in respect of their licence. Licensees pay to the ACMA an
amount they believe is due and payable (taking into account any applicable rebate available)
and provide various financial information to the ACMA in respect of their licence under
section 205B or 205BA of the BSA, depending on the kind of licence.
The ACMA uses the information provided to it under sections 205B and 205BA to assess
whether the amount of licence fees paid is correct. The ACMA then 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.
The requirement for the ACMA to seek payment of license fees under section 205C exists in
respect of all unpaid licence fee amounts, even where the amount of underpayment is very
small. In some circumstances, it may be uneconomical for the ACMA to prepare and issue
notices to licensees under section 205C regarding unpaid licence fees, i.e. where the
additional administrative work would outweigh the revenue to be recouped.
Item 11 of Schedule 1 to the Bill would amend section 205C of the BSA to provide the
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) or not.
The ACMA would be required under the amended section 205C to notify the licensee that the
liability to pay the unpaid amount of licence fees, and associated penalty fees, had been
waived.
10
Item 12 - Paragraphs 7(1)(g) and (ga) of Schedule 2
Item 13 - Paragraph 9(1)(g) and (ga) of Schedule 2
Item 14 - Subclause 11(3) of Schedule 2
Paragraphs 7(1)(g) and (ga), 9(1)(g) and (ga) and subclause 11(3) of Schedule 2 impose
classification-related licence conditions on commercial television broadcasting licenses,
community television broadcasting licensees and providers of open narrowcasting services
respectively. These licence conditions place restrictions on the broadcast of films that have
been classified as RC, X 18+ or R 18+ by the Classification Board under the Classification
Act.
Items 12 to 14 of Schedule 1 to the Bill would repeal these Schedule 2 licence conditions, in
connection with the repeal of subsections 123(3A) to (3D) of the BSA under item 5 of
Schedule 1, as described above. With the repeal of these licence conditions, classification-
related breaches would be dealt with as code of practice breaches, rather than as licence
condition breaches.
Telecommunications (Consumer Protection and Service Standards) Act 1999
Item 15 - Subsection 5(2) (definition of VOIP service)
Item 15 of Schedule 1 to the Bill would amend the definitions section of the TCPSS Act to
repeal the definition of a 'VOIP service'. The expression 'VOIP service' was only used in
section 6A of the TCPSS Act, which was repealed by the Telecommunications Legislation
Amendment (Deregulation) Act 2015 (which commenced on 1 July 2015). As a consequence
of the repeal of section 6A, the definition of a 'VOIP service' is now redundant and can be
repealed.
Item 16 - Section 12D
Item 17 - At the end of section 12D
Items 16 and 17 of Schedule 1 to the Bill would amend section 12D of the TCPSS Act.
Under section 12A of the TCPSS Act, the Minister may determine, by legislative instrument,
that a specified carrier or CSP is the primary universal service provider in respect of a service
obligation. Section 12D operates as a deeming provision, with the effect of deeming the
Minister to have made an initial determination under section 12A (without any instrument
having been made) that Telstra is the primary universal service provider.
The Telecommunications Legislation Amendment (Deregulation) Act 2015 repealed and
substituted a new section 12D in order to streamline the provision.
Items 16 and 17 make technical amendments to section 12D to restore a provision that was
inadvertently repealed as part of the streamlining amendments made to section 12D. This
provision confirms that the determination that the Minister is taken to have made under
section 12A (by section 12D) is not a legislative instrument (within the meaning of the
Legislative Instruments Act 2003). This provision is merely declaratory of the law, as the
deemed determination is not an instrument in writing and is therefore not a legislative
instrument for the purposes of the Legislative Instruments Act 2003. The provision is
included to assist readers. It is not an exemption from the Legislative Instruments Act 2003.
11
Schedule 2 - Complaints handling by the ACMA
Australian Communications and Media Authority Act 2005
Item 1 - Section 3 (paragraph (b) of the definition of investigation)
Item 2 - Paragraph 4(3)(a)
Items 1 and 2 of Schedule 2 to the Bill would make minor technical amendments to the
ACMA Act that are consequential to the proposed repeal of Part 11 of the BSA by Item 3 of
Schedule 2, as described below.
Item 1 of Schedule 2 would amend the definition of 'investigation' in the ACMA Act, to
remove the reference to an investigation conducted or proposed to be conducted under Part
11 of the BSA.
Item 2 of Schedule 2 would amend paragraph 4(3)(a) of the ACMA Act. Subsection 4(3) sets
out when an investigation carried out by the ACMA is completed for the purposes of the
ACMA Act. The amendment to paragraph 4(3)(a) would remove the reference to an
investigation conducted under Part 11 of the BSA.
Broadcasting Services Act 1992
Item 3 - Part 11
Item 4 - After section 170
Division 2 of Part 13 of the BSA provides the ACMA with a general power to conduct
investigations for the purposes of the performance or exercise of its broadcasting, content and
datacasting functions (as defined in the ACMA Act) and related powers. Those functions
include monitoring compliance with broadcasting and datacasting codes of practice
(paragraph 10(1)(j) of the ACMA Act refers) and monitoring and investigating complaints
concerning broadcasting services (including national broadcasting services) and datacasting
services (paragraph 10(1)(m) of the ACMA Act refers).
Part 11 of the BSA sets out a separate framework for complaints to be made and investigated
concerning licensed and national broadcasters. Under Part 11, persons may complain to the
ACMA in relation to the commission of an offence, breach of a civil penalty provision or
breach of a licence condition or class licence (section 147 refers). Complaints may also be
made to the ACMA about program content (limited to captioning in the case of national
broadcasters) and code of practice compliance by licensed and national broadcasters (sections
148 and 150 refer). The ACMA may investigate such complaints if it thinks it desirable to do
so (sections 149 and 151 of the BSA refer).
Currently, complaints of the type referred to in Part 11 of the BSA can be investigated by the
ACMA under its broadcaster investigation powers in Part 13 of the BSA. This was recently
confirmed by the Federal Court in Harbour Radio Pty Limited v Australian Communications
and Media Authority [2015] FCA 371.
Accordingly, item 3 of Schedule 2 to the Bill would repeal Part 11 of the BSA, on the basis
that it duplicates the ACMA's investigation powers in Part 13.
Item 4 of Schedule 2 to the Bill would make consequential amendments to Part 13 to make it
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.
12
Specifically, item 4 would insert a new section 170A into Part 13, providing that a person
may make a complaint to the ACMA about a broadcasting service or datacasting service, and
that the ACMA may (but is not required to) conduct an investigation into the complaint if it
thinks desirable to do so. In this respect, new section 170A would make clear that complaints
relating to licensed and national broadcasting services may be made and investigated in
accordance with current practice.
As an aid to readers as to the scope of the ACMA's investigation powers under Part 13, the
note under proposed section 170A identifies that one of the ACMA's functions is to monitor
and investigate complaints concerning broadcasting services (including national broadcasting
services) and datacasting services. In recognition of the co-regulatory framework applying to
broadcasting, the note also identifies an example of a circumstance in which the ACMA may
choose to investigate such a complaint, being where a person has made a complaint to the
broadcaster about compliance with a code of practice and is not satisfied with the
broadcaster's response.
Item 5 - After section 171
Item 5 would insert a new section 171A in Part 13, consequential to the repeal of Part 11 of
the BSA proposed by item 3 of Schedule 2. Proposed subsection 171A(1) would provide that,
subject to the requirements of Division 2 of Part 13, procedures for the conduct of an
investigation are within the discretion of the ACMA. Proposed subsection 171A(2) would
require the ACMA to publish on its website guidance material as to the procedures that the
ACMA will follow in investigating complaints made to it under Part 13. However, while the
guidelines would set out the procedures that the ACMA will typically follow in conducting
such investigations, it is not intended that the ACMA be prevented from adopting different
procedures when investigating a particular complaint if it wished to do so. Proposed
subsection 171A(2) would make this clear.
Item 6 - At the end of Division 2 of Part 13
Part 11 of the BSA currently provides for particular action that the ACMA may take in
relation to complaints made to the ACMA relating to national broadcasting services, or
datacasting services provided by the ABC/SBS.
Under section 152 of the BSA, where the ACMA investigates a complaint about a national
broadcaster under Part 11 and finds the complaint to be justified, if the ACMA is satisfied
that it should take action to encourage compliance, it may recommend that the relevant
broadcaster take action to comply with a code of practice and take other appropriate action.
Such other action may include broadcasting or otherwise publishing an apology or retraction.
Under section 153 of the BSA, if the national broadcaster does not take action that the
ACMA considers appropriate within 30 days, the ACMA may provide the Minister with a
written report on the matter.
Item 6 would insert new sections 181 and 181A into the BSA to incorporate the provisions
currently in sections 152 and 153 respectively into Part 13.
Proposed section 181 would also clarify that if the complaint concerns a breach of Part 9D of
the BSA (which deals with captioning obligations), the recommendation that the ACMA
would make would be in relation to compliance with Part 9D, not in relation to compliance
with a code of practice. The current section 152 only refers to the ACMA taking action to
encourage compliance with a code of practice, when the complaint may instead be about a
national broadcaster's non-compliance with its captioning obligations.
13
Schedule 3 - Monitoring of the telecommunications industry
Competition and Consumer Act 2010
Item 1 - Section 151AA
Item 2 - Section 151AB (definition of tariff filing direction)
Item 4 - Paragraph 151BU(4)(b)
Items 1, 2 and 4 of Schedule 1 to the Bill would make minor technical amendments to
Divisions 1 and 6 of Part XIB of the Competition Act as a consequence of the repeal of
Divisions 4 and 5 of Part XIB proposed by Item 3, as described below. The amendments in
items 1, 2 and 4 would remove references to tariff filing directions and also references to
specific legislative provisions contained within Divisions 4 and 5 of Part XIB.
Item 3 - Divisions 4 and 5 of Part XIB
Part XIB of the Competition Act sets out rules and obligations that apply to the
telecommunications industry with respect to anti-competitive conduct and record keeping.
Division 4 of Part XIB provides for the collection of certain tariff information by the ACCC.
Section 151BK provides the ACCC with a discretion to direct carriers and CSPs with a
'substantial degree of power' in a telecommunications market to provide specified tariff
related information within a specified period. Sections 151BL to 151BT set out various
additional requirements with respect to the permitted scope of tariff filing directions, public
access to tariff information and related matters.
Division 5 of Part XIB sets out a tariff filing regime that applies specifically to Telstra.
Section 151BTA requires Telstra to notify the ACCC of the imposition, variation or cessation
of a charge for a basic carriage service.
The requirement to provide tariff information under Divisions 4 and 5 of Part XIB imposes
unnecessary regulatory burden on business. The information captured by these Divisions is
readily available to the ACCC through other avenues, including through public sources, and
in this circumstance requiring the information be provided directly by carriers and CSPs to
the ACCC is unduly burdensome for industry. It is also apparent that the tariff information
provided under these Divisions is of limited benefit in assisting with ACCC investigations of
potential anti-competitive conduct within the telecommunications industry and so on this
basis retaining the provisions cannot be justified.
Item 3 of Schedule 1 to the Bill would therefore repeal Divisions 4 and 5 of Part XIB of the
Competition Act.
Item 5 - After subsection 151BU(4)
Division 6 of Part XIB of the Competition Act provides for the ACCC to make rules (record-
keeping rules) requiring specified carriers or CSPs to keep and retain records. These rules
may also require carriers or CSPs to prepare reports about information in those records and to
provide those reports to the ACCC. The ACCC must not exercise its powers under section
151BU unless the records to be retained contain information relevant to the matters listed in
subsection 151BU(4).
The ACCC has made the Division 12 Report Record-Keeping and Reporting Rules to collect
information from certain service providers for the purposes of monitoring and reporting to the
14
Minister under Division 12 of Part XIB on charges paid by consumers for listed carriage
services and ancillary goods and services (see items 22 - 23 below).
Item 5 of Schedule 3 to the Bill would insert new subsections 151BU(4A) and (4B) requiring
the ACCC to review any record keeping rule relevant to the operation of Division 12 every
five years, with the first review to occur within a year of commencement. In reviewing the
rules, the ACCC would be required to have regard to:
whether the information is publicly available (new paragraph 151BU(4B)(a))
whether consumer demand for the goods or services to which the information relates
has changed (new paragraph 151BU(4B)(b))
the usefulness of the information to consumers, the Minister and Parliament (new
paragraph 151BU(4B)(c)).
The requirement for periodic review is intended to ensure that relevant record-keeping rules
remain up-to-date, reflect changing markets and consumer behavior and minimise the
regulatory burden on industry (for example, by excluding information that is otherwise
publicly available). The new requirement represents a statutory minimum level of review but
would not prevent the ACCC from undertaking more regular reviews if circumstances
warrant.
Item 6 - Division 7 of Part XIB (heading)
Item 7 - Section 151BW (heading)
Item 8 - Section 151BW
Item 9 - Section 151BX (heading)
Item 10 - Paragraphs 151BX(1)(a), (b) and (c)
Item 11 - Paragraph 151BX(3)(b)
Item 12 - Paragraph 151BX(4)(b)
Item 13 - Paragraph 151BX(5)(a)
Item 14 - Subsection 151BX(5)
Item 15 - Section 151BZ (heading)
Item 16 - Paragraphs 151BZ(1)(a), (b) and (c)
Item 17 - Subsection 151BZ(2)
Item 18 - Paragraphs 151CA(1)(a) to (f)
Item 19 - Subsection 151CD(1)
Item 20 - Subsection 151CI(3)
Item 21 - Paragraph 151CJ(1)(d)
Items 6 to 21 of Schedule 1 to the Bill would make minor technical amendments to
Divisions 7 and 10 of Part XIB of the Competition Act as a consequence of the repeal of
Divisions 4 and 5 of Part XIB proposed by Item 3 of Schedule 1, as described above. The
amendments in items 6 to 21 would remove references to tariff filing directions and also
references to specific legislative provisions contained within Divisions 4 and 5 of Part XIB.
15
Item 22 - Subsection 151CM(1)
Item 23 - Subsections 151CM(2) to (5)
Division 12 of the Competition Act, consisting solely of section 151CM, requires the ACCC
to monitor and report to the Minister each financial year on charges paid by consumers for
listed carriage services and goods/services for use in connection with such services. The
report, which is tabled in Parliament, must also cover the adequacy of Telstra's compliance
with Part 9 of the TCPSS Act, which deals with price control arrangements. There are no
current price control arrangements following the revocation in March 2015 of the Telstra
Carrier Charges - Price Control Arrangements, Notification and Disallowance
Determination No.1 of 2005.
Items 22 and 23 of Schedule 3 to the Bill would amend the scope of the ACCC's monitoring
and reporting function under subsection 151CM(1) to insert a more flexible regime in
recognition of the fact that current monitoring and reporting obligations, applying largely to
traditional providers but not necessarily to emerging or new entrants and services, may
provide only a limited picture of the contemporary telecommunications market. The ACCC
would be empowered to decide which charges to monitor and report on, having regard to
which goods or services are most commonly used by consumers (rather than being obliged to
report on the matters currently listed in subsection 151CM(1)). The ACCC would no longer
report to the Minister but instead would be required to publish the report on its website within
3 months after the end of the financial year.
Telecommunications Act 1997
Item 24 - Subsections 105(1) to (4)
Item 25 - Subsections 105(6) and (7)
Item 26 - Subsection 105(8)
Item 24 of Schedule 3 to the Bill would repeal subsections 105(1) to (4) of the Tel Act.
Section 105 of the Tel Act requires the ACMA to monitor and report to the Minister each
financial year on certain elements of the performance of the telecommunications industry.
The annual communications report prepared under section 105 must cover all significant
matters relating to the performance of carriers and CSPs, with particular reference to
consumer satisfaction, consumer benefits and quality of service. The ACMA obtains
information from industry in preparing the report.
When first introduced, the requirement for an annual ACMA report under section 105(1)
ensured a high degree of oversight of the telecommunications sector in the wake of increased
competition and the introduction of a new regulatory framework. This policy rationale is not
compelling now, close to 20 years later, where there is a mature telecommunications market.
It is preferable to provide the ACMA with greater flexibility to prepare targeted reports that it
considers will provide the most benefit to government and industry.
Accordingly, item 24 would reduce the required scope of the ACMA report under section 105
to the operation of Part 14 (National Interest Matters) of the Tel Act and the costs of
compliance with that Part and the costs of compliance with the requirements of Part 5-1A of
the Telecommunications (Interception and Access) Act 1979 (regarding data retention).
Item 25 of Schedule 3 to the Bill would make a consequential amendment to subsections
105(6) and (7) of the Tel Act to remove references to subsections 105(1) and (4). Item 26 of
16
Schedule 3 to the Bill would also consequentially repeal subsection 105(8) of the Tel Act,
which contains definitions used only in subsection 105(3) that is proposed for repeal.
Item 27 - At the end of section 105A
Section 105A of the Tel Act provides for the Minister to direct the ACMA to monitor, and
report on, specified matters relating to the performance of carriers and CSPs. Item 27 would
insert new subsections 105A(3) and (4) to make it clear that the Minister's power to direct the
ACMA extends to the form and publication of commissioned reports on specified matters.
17
Schedule 4--Technical amendments
Schedule 4 to the Bill would make minor technical amendments to provisions in the
legislation governing the national broadcasters. These amendments would provide
consistency between the Australian Broadcasting Corporation Act 1983 (ABC Act), the
Broadcasting Services Act 1992 (BSA) and Special Broadcasting Service Act 1991 (SBS
Act), repeal redundant provisions in the ABC Act and SBS Act and better reflect SBS
activities that are provided in the converging digital environment.
Australian Broadcasting Corporation Act 1983
Item 1 - Subsection 79A(5)
Item 1 of Schedule 4 to the Bill would repeal redundant definitions in subsection 79A(5) of
the ABC Act. These are the definitions of 'election', 'election period', 'Parliament' and
'referendum', which are defined for the purpose of section 79A but are not used by that
section. Corresponding amendments are proposed to the equivalent provision in the SBS Act,
section 70A, by item 13 of Schedule 4 to the Bill, as described below.
Special Broadcasting Service Act 1991
Item 2 - Section 3
Item 2 of Schedule 4 to the Bill would insert a definition of 'broadcasting service' into
section 3 of the SBS Act. This means that broadcasting service as used in the SBS Act would
have the same meaning as provided for by subsection 6(1) of the BSA. The insertion of this
definition would ensure consistency between the BSA, the SBS Act and the ABC Act.
In several places throughout the SBS Act, consequential amendments are proposed to replace
various references to radio and television services with references to broadcasting services.
Item 3 - Paragraph 3A(1)(c)
Item 4 - Subsection 6(1)
Items 3 and 4 of Schedule 4 to the Bill would amend paragraph 3A(1)(c) and subsection 6(1)
of the SBS Act respectively to replace references to radio and television services with
references to broadcasting services. These amendments are consequential to the amendment
to be made by item 2 of Schedule 4 to the Bill, as described above.
Item 5 - Paragraph 6(2)(g)
Item 6 - Paragraph 6(2)(g)
Item 7 - Paragraph 6(2)(h)
Item 8 - Paragraph 6(2)(h)
Items 5 to 8 of Schedule 4 to the Bill would amend subsection 6(2) of the SBS Act. These
amendments serve two purposes. Firstly, they would replace references to radio and
television services with references to broadcasting services. These amendments are
consequential to the amendment proposed by item 2 of Schedule 4 to the Bill, as described
above. Secondly, they would add a reference to digital media services, reflecting the
contribution of the SBS to the overall diversity and extending the range of Australian digital
media services.
18
Item 9 - Paragraph 44(1)(b)
Item 10 - Paragraph 44(1)(b)
Item 11 - Paragraph 44(1)(c)
Item 12 - Paragraph 44(1)(d)
Items 9 to 12 of Schedule 4 to the Bill would amend subsection 44(1) of the SBS Act, to
insert references to communication in addition to transmission in the specific powers and
functions of the SBS. These amendments reflect the different media by which digital media
services are provided by the SBS, compared with broadcasting services.
Item 13 - Subsection 70A(5)
Item 13 of Schedule 4 to the Bill would repeal redundant definitions in section 70A of the
SBS Act. These are the definitions of 'election', 'election period', 'Parliament' and
'referendum' which are defined for the purpose of section 70A, but are not used by that
section. Corresponding amendments are proposed to the equivalent provision in section 79A
of the ABC Act, by item 1 of Schedule 4 to the Bill, as described above.
Item 14 - Paragraph 70C(1)(b)
Item 14 of Schedule 4 to the Bill would amend paragraph 70C(1)(b) of the SBS Act to
replace a reference to radio and television services with a references to broadcasting services.
This amendment is consequential to the amendment proposed by item 2 of Schedule 4 to the
Bill, as described above.
19
Schedule 5 - Spent and redundant legislation
Schedule 5 to the Bill would repeal Communications portfolio legislation which is spent or
otherwise unnecessary.
Part 1 - Repeals
AUSSAT Repeal Act 1991
Item 1 - Repeal of Acts
Item 1 of Schedule 5 to the Bill would repeal a range of spent and redundant legislation.
It would repeal the AUSSAT Repeal Act 1991 (AUSSAT Repeal Act), which set out the
arrangements for the sale of Australia's national satellite system, AUSSAT, to Optus in 1991,
and allocated an appropriation of up to $800 million from the Consolidated Revenue Fund to
pay out AUSSAT's then existing obligations.
The AUSSAT Repeal Act has no ongoing utility and can be repealed, subject to preserving
the operation of a provision in the Act preventing AUSSAT's previous tax losses from being
used as an income tax deduction after the sale (section 8 of the AUSSAT Repeal Act refers).
This provision is to be preserved through amendments to the Tel Act proposed by items 5 and
6 of Schedule 5 to the Bill, as described below.
Item 1 would also repeal other spent amending or repealing legislation, as listed below. The
amendments and repeals effected by these Acts have taken effect, and these Acts are no
longer required:
- Australian Broadcasting Corporation Amendment Act 1993
- Australian Postal Corporation Amendment Act 1994
- Broadcasting Amendment Act 1987
- Broadcasting Amendment Act 1990
- Broadcasting Amendment Act 1991
- Broadcasting Amendment Act (No. 2) 1987
- Broadcasting Amendment Act (No. 2) 1990
- Broadcasting Amendment Act (No. 2) 1991
- Broadcasting Amendment Act (No. 3) 1987
- Broadcasting Amendment Act (No. 4) 1987
- Broadcasting and Television Amendment Act 1980
- Broadcasting and Television Amendment Act 1982
- Broadcasting and Television Amendment Act 1984
- Broadcasting and Television Amendment Act 1985
- Broadcasting and Television Legislation Amendment Act 1985
- Broadcasting and Television Legislation Amendment Act 1986
- Broadcasting (Foreign Ownership) Amendment Act 1990
- Broadcasting (Ownership and Control) Act 1987
- Broadcasting (Ownership and Control) Act 1988
- Broadcasting Services Amendment Act 1997
- Broadcasting Services Legislation Amendment Act 1997
- Broadcasting Stations Licence Fees Act 1981
- Broadcasting Stations Licence Fees Amendment Act 1983
- Broadcasting Stations Licence Fees Amendment Act 1985
- National Transmission Network Sale (Consequential Amendments) Act 1998
- NRS Levy Imposition Amendment Act 1999
- Radiocommunications (Miscellaneous Provisions) Act 1982
20
- Radiocommunications (Receiver Licence Tax) Amendment Act 1992
- Radiocommunications (Receiver Licence Tax) Amendment Act 1997
- Radiocommunications (Test Permit Tax) Amendment Act 1992
- Radiocommunications (Transmitter Licence Tax) Amendment Act 1992
- Radiocommunications (Transmitter Licence Tax) Amendment Act 1997
- Radio Licence Fees Amendment Act 1987
- Radio Licence Fees Amendment Act 1991
- Radio Licence Fees Amendment Act (No. 2) 1987
- Satellite Communications Amendment Act 1988
- Telecommunications Amendment Act 1994
- Telecommunications Amendment Act 1998
- Telecommunications (Carrier Licence Fees) Amendment Act 1995
- Telecommunications (Carrier Licence Fees) Amendment Act 1996
- Telecommunications (Carrier Licence Fees) Termination Act 1997
- Telecommunications Laws Amendment (Universal Service Cap) Act 1999
- Telecommunications Legislation Amendment Act 1997
- Telecommunications (Universal Service Levy) Amendment Act 1999
- Television Broadcasting Services (Digital Conversion) Act 1998
- Television Licence Fees Amendment Act 1987
- Television Licence Fees Amendment Act (No. 2) 1987
- Television Licence Fees Amendment Act (No. 3) 1987
- Television Stations Licence Fees Act 1981
- Television Stations Licence Fees Amendment Act 1983
- Television Stations Licence Fees Amendment Act 1985
Item 1 of Schedule 5 to the Bill would also repeal the Telstra (Transition to Full Private
Ownership) Act 2005 (Telstra Transition Act). The Telstra Transition Act amended the
Telstra Corporation Act 1991 (Telstra Act) to remove the requirement that the
Commonwealth retain a minimum 50.1 per cent equity in Telstra. It also made consequential
and transitional amendments to various legislation to reflect the Commonwealth's reduced
equity. These events have all since occurred, meaning the Telstra Transition Act has no
ongoing utility and is no longer required.
The repeal of the Telstra Transition Act necessitates two consequential amendments to the
Telstra Act, which would be made by items 7 and 8 of Schedule 5 to the Bill, as described
below.
Part 2 - Other amendments
Competition and Consumer Act 2010
Item 2 - Sections 152ELB and 152EOA
Item 2 of Schedule 5 to the Bill would repeal sections 152ELB and 152EOA of the
Competition Act.
Section 152ELB requires the ACCC, prior to making procedural rules by legislative
instrument under section 152ELA, to publish a draft on the ACCC's website, invite people to
make submissions during a period of at least 30 days and consider any submissions received.
This provision is considered unnecessary in light of the standard consultation requirements in
section 17 of the Legislative Instruments Act 2003, which require a rule maker, subject to
certain exceptions, to be satisfied that appropriate and practicable consultation has been
undertaken prior to making a legislative instrument.
21
Section 152EOA requires the Minister to cause to be conducted a review of the operation of
Part XIC of the Competition Act, other provisions of the Competition Act relating to Part
XIC and particular provisions of the National Broadband Network Companies Act 2011
relating to the supply of eligible services. The review was completed as part of the
independent cost-benefit analysis of broadband policy and review of regulatory
arrangements. The report of the review was tabled in both Houses of Parliament on 16 July
2014 and accordingly the section is spent and no longer required.
National Transmission Network Sale Act 1998
Item 3 - Part 5
Item 4 - Sections 25 and 27
Item 3 of Schedule 5 to the Bill would repeal Part 5 of the National Transmission Network
Sale Act 1998 (NTN Sale Act), and item 4 of Schedule 5 to the Bill would repeal sections 25
and 27 of that Act.
The NTN Sale Act facilitated the sale of the National Transmission Network (NTN) and set
in place a regulatory framework for the provision of national broadcasting and other
transmission services following the sale.
Part 5 of the NTN Sale Act was a transitional arrangement which provided for transmitter
licences held by the Commonwealth to be transferred to the ABC and SBS following the sale.
Section 25 specifies that section 50 of the Competition Act applies to sale of shares in a
National Transmission Company and section 27 ensured the transfer of Commonwealth
records following the sale was managed in accordance in accordance with the Archives Act
1983. None of these provisions have ongoing utility.
Telecommunications Act 1997
Item 5 - Section 582
Item 6 - After section 593
Item 6 of Schedule 5 to the Bill would insert a new section 593A into Part 35 of the Tel Act,
consequential to the repeal of the AUSSAT Repeal Act under item 1 of Schedule 5 to the
Bill, as described above.
The new section 593A would preserve the operation of section 8 of the AUSSAT Repeal Act,
by continuing to prevent AUSSAT's previous tax losses from being used as an income tax
deduction after the sale of AUSSAT to Optus.
Item 5 of Schedule 5 to the Bill would amend the outline for Part 35 of the Tel Act to include
an outline of the new subsection 593A to be inserted by item 6 of Schedule 5.
Telstra Corporation Act 1991
Item 7 - Section 3 (definition of designated day)
Item 7 of Schedule 5 to the Bill would amend the definition of 'designated day' in section 3
of the Telstra Act by replacing "the day declared under section 3 of the Telstra (Transition to
Full Private Ownership) Act 2005" with "24 November 2006".
Currently, 'designated day' is defined in the Telstra Act by reference to the Telstra
(Transition to Full Private Ownership) Act 2005 - Designated Day Declaration 2006 (No. 1)
(Declaration), made by the Minister under the Telstra Transition Act. The Declaration
specifies that the designated day is 24 November 2006.
22
This amendment would remove the cross-reference from the Telstra Act to an instrument
made under the Telstra Transition Act, consequential to the repeal of the latter Act to be
made by item 1 of Schedule 5 to the Bill, as described above.
Item 8 - Paragraph 3B(1)(b)
Item 8 of Schedule 5 to the Bill would amend paragraph 3B(1)(b) to replace "the
commencement of Part 1 of Schedule 1 to the Telstra (Transition to Full Private Ownership)
Act 2005" with "23 September 2005". This is the date upon which Part 1 of Schedule 1 to the
Telstra Transition Act commenced.
This amendment removes the cross-reference from the Telstra Act to the Telstra Transition
Act, consequential to the repeal of the latter Act to be made by item 1 of Schedule 5 to the
Bill, as described above.
23
Schedule 6 - Numbering arrangements
Part 22 of the Tel Act provides for the regulation of the numbering of carriage services. The
ACMA is currently required to make a plan for the numbering of carriage services in
Australia and the use of numbers in connection with the supply of such services (the
'numbering plan'). The numbering plan may set out rules about the allocation of numbers to
CSPs and the use of allocated numbers allocated to CSPs including rules about the issue of
allocated numbers by CSPs to customers.
Numbers may be allocated to CSPs in accordance with the numbering plan or in accordance
with an allocation system determined by the ACMA.
The numbering plan also specifies emergency service numbers.
Schedule 6 to the Bill would enact arrangements to allow the Minister to specify a person as
the numbering scheme manager, for that person to manage the numbering scheme in
accordance with the numbering scheme principles, and for the publication of rules and
processes of the numbering scheme, including a plan for numbering of carriage services. If
such a person is specified by the Minister, the requirement for the ACMA to make and
administer the numbering plan would not apply. 'Person' includes a body corporate.
Schedule 6 provides a framework for a transition to industry-based management of
numbering in response to proposals by the telecommunications industry. In particular, the
industry representative body, the Communications Alliance, has proposed that numbering
management be devolved to industry with potential benefits including faster implementation
of new numbering ranges, more efficient allocation services and lower costs. Reduction in
regulatory effort in the numbering area by the ACMA is expected to lead to savings for
industry through lower industry charges. The management of other electronic addressing in
Australia is already handled by industry, consistent with the arrangements under Division 3
of Part 22 of the Tel Act.
The transition to an industry managed numbering scheme would only occur once the Minister
was satisfied (after consulting the ACMA and ACCC) that the proposed scheme manager
would administer a numbering scheme in accordance with the key principles set out in
proposed section 454C.
The numbering scheme principles are designed to ensure key public policy objectives
continue to be met within an industry-based management scheme. The principles include
promoting a competitive telecommunications industry with fair access to an adequate and
well-planned supply of numbers, maintaining consumer safeguards such as number
portability (or the right to retain the same number when changing service provider),
supporting the emergency call service and national security needs, and supporting the
collection of revenue from the use of numbering. The principles would require the rules and
processes for the scheme to be transparent and would ensure there is public consultation on
any significant changes to the scheme.
Specific powers are provided for the Minister, the ACCC and the ACMA to provide
directions to the numbering scheme manager, in the event that it is necessary for the effective
functioning of the scheme. The Minister will be also be able to determine additional
principles for the numbering scheme by legislative instrument.
The Minister would be able to revoke the appointment of a numbering scheme manager if the
numbering scheme manager was not managing the numbering scheme in accordance with the
principles, or if the Minister was satisfied that a revocation was in the best interests of the
24
telecommunications industry, users of carriage services, the general community or national
security.
In addition, the Minister would be able to direct the numbering scheme manager to amend the
rules or change the processes of the scheme in a manner consistent with the principles. The
ACMA and the ACCC would each have power to direct the scheme manager to do or refrain
from doing a specified thing in relation to the management of the numbering scheme, in a
manner consistent with the principles and rules and processes of the scheme. The ACMA and
ACCC would also have the power to direct a person to comply with the numbering scheme if
necessary.
The ACMA would remain responsible for the collection of numbering charges even if a
numbering scheme manager was appointed. Any new industry-based management scheme
would need to support the ACMA in exercising this function.
Part 1 - Amendments
Telecommunications Act 1997
Item 1 - Section 5
Section 5 of the Tel Act provides a simplified outline of the legislation. Item 1 of Schedule 6
to the Bill would omit the phrase "The ACMA may regulate numbering by means of a
numbering plan" from section 5 and substitute the phrase "Numbering may be administered
by a numbering scheme manager or by the ACMA". This would reflect the possibility that
either the numbering scheme manager or the ACMA could administer numbering under the
new arrangements.
Item 2 - Section 7 (subparagraph (b)(iv) of definition of emergency call service)
Item 3 - Section 7 (subparagraph (b)(v) of definition of emergency call service)
Item 4 - Section 7
Section 7 of the Tel Act sets out definitions of terms used in the legislation.
Item 2 of Schedule 6 to the Bill would repeal subparagraph (b)(iv) of the definition of
'emergency call service' in section 7 that refers to a service specified in the numbering plan
and substitute proposed subparagraphs (iv) and (iva). These subparagraphs would
respectively refer to the service specified by the ACMA in a legislative instrument for
subparagraph (iv), if there is a numbering scheme manager, or specified in the numbering
plan made by the ACMA if there is no numbering scheme manager.
These changes recognise the need for a new means of specifying the emergency call service
number in the event of a transition to industry-based numbering management and there is no
longer an ACMA numbering plan in force (the current means of specifying this number).
Because of the fundamental importance of emergency call service numbering to the wider
community, responsibility for such numbering will remain with the ACMA.
Item 3 of Schedule 6 to the Bill would make consequential amendments to
subparagraph (b)(v) of the definition of 'emergency call service' to refer to proposed
subparagraphs (iv) and (iva).
Item 4 of Schedule 6 to the Bill would insert in section 7 definitions for the expressions
'numbering scheme', 'numbering scheme manager' and 'numbering scheme principles'.
These concepts are fundamental to the proposed framework for industry-based number
management. A 'numbering scheme' would be defined as the scheme for planning and
25
managing the numbering of carriage services in Australia, the use of numbers in connection
with the supply of such services and the specification, allocation, and issuing of numbers for
that use. The terms 'numbering scheme manager' and 'numbering scheme principles' are
defined by reference to proposed subsections 454A(2) and 454C(2) respectively, as described
in item 10 of Schedule 6 below.
Item 5 - Subsection 285(2) (definition of public number)
Section 285 of the Tel Act sets out permitted uses and disclosures of information contained in
an integrated public number database. An integrated public number database is an industry-
wide database of all listed and unlisted public telephone numbers. Subsection 285(2) sets out
definitions for section 285.
Item 5 of Schedule 6 to the Bill would make a technical consequential amendment to the
definition of 'public number' in subsection 285(2) to omit the phrase "in the numbering plan
as mentioned in subsection 455(3)" and substitute the phrase "for use in connection with the
supply of carriage services to the public in Australia (within the meaning of
subsection 456(2))". The amendment would broaden the scope of the definition of 'public
number' so that it would cover both a number specified in the numbering plan and a number
specified under the numbering scheme.
Item 6 - Subparagraph 286(c)(v)
Item 7 - Subparagraph 286(c)(vi)
Section 286 of the Tel Act provides an exception to primary disclosure or use offences in
Division 2 of Part 13 for disclosure of information or a document in the context of a call to an
emergency service number.
Item 6 of Schedule 6 to the Bill would make a technical consequential amendment to
paragraph 286(c) to replace a reference to a number specified in the numbering plan with
references to a service specified by the ACMA in a legislative instrument, if there is a
numbering scheme manager and a number specified in the numbering plan made by the
ACMA, if there is no numbering scheme manager. Item 7 of Schedule 6 to the Bill would
make consequential amendments to subparagraph 286(c)(vi).
Item 8 - Section 454
Item 9 - Section 454
Items 8 and 9 of Schedule 6 to the Bill would amend the simplified outline of Part 22 of the
Tel Act.
The amendments to the outline of Part 22 would reflect that the numbering of carriage
services in Australia and the use of numbers in connection with the supply of such services,
may be managed by a numbering scheme manager determined by the Minister or
administered by the ACMA under a numbering plan. The amendments to the outline would
also reflect that emergency service numbers will be specified by the ACMA. If a numbering
scheme manager has been appointed, emergency service numbers will be specified by the
ACMA in a legislative instrument. If the ACMA makes a numbering plan, emergency service
numbers will be specified in that plan.
Item 10 - Before Subdivision A of Division 2 of Part 22
Item 10 of Schedule 6 to the Bill would insert into Division 2 of Part 22 a new
Subdivision AA--Management by numbering scheme manager. This would contain new
sections 454A to 454G.
26
Under proposed new section 454A, the Minister may, by legislative instrument, determine
that a specified person is to manage the numbering scheme (see item 4 of Schedule 6 above).
The person would be the numbering scheme manager.
The Minister would not be able to determine a person as the numbering scheme manager
unless satisfied that the person will manage the numbering scheme in accordance with the
numbering scheme principles. Apart from this requirement, proposed new section 454A is
intended to give the Minister a wide discretion in selecting a person as the numbering scheme
manager.
However, it is envisaged that the person would put forward a well-developed scheme, on
which it had consulted publicly, and for which there was strong stakeholder support, before
seeking to be determined by the Minister to be the numbering scheme manager. Given the
importance of the role, the Government would require a high level of confidence that the
person could perform the role effectively and efficiently on an on-going basis before
confirming the role. As such, it is envisaged the Minister would have regard to the person's
capabilities and competencies, including issues such as whether the person was a body
corporate, its financial standing and ongoing funding, its directors (if relevant) and staff, its
proposed mode of operation (including mechanisms to ensure its independence and
impartiality), its demonstrated experience and the degree of stakeholder support for it and the
model it has put forward.
Before determining a person as the numbering scheme manager, the Minister would be
required to consult with the ACMA and the ACCC.
Any industry-based numbering management scheme would be fully funded by industry,
however, there are also expected to be countervailing savings for industry from the reduction
in ACMA involvement in numbering activities.
In order to avoid ambiguity, proposed new section 454B would specify that determination of
a person as the numbering scheme manager does not confer any property rights in numbers
used in connection with the supply of carriage services in Australia.
Proposed new section 454C would establish numbering scheme principles. Proposed new
subsection 454C(1) would state that the numbering scheme manager must manage the
numbering scheme in accordance with the numbering scheme principles. Proposed new
section 454C(2) would set out those principles, which cover a range of matters with respect to
ensuring fair and transparent access to numbers, protecting the interests of users of carriage
services, supporting the use of emergency call services, meeting the requirements of law
enforcement and national security agencies and other issues. The principles would also
include that the numbering scheme manager must undertake public consultation before
making any significant change to the numbering scheme. The Minister would also be
empowered under paragraph 454C(2)(q) to make a legislative instrument determining
additional principles.
The principles are fundamental to a successful transition to industry-based management of
numbering in that they set out public policy objectives that an industry-based management
scheme must continue to deliver and would underpin the ongoing operation of such a scheme.
The principles are therefore integral to the Minister determining a numbering scheme
manager (proposed subsection 454A(3)) and the numbering scheme manager's ongoing
operation of the scheme (proposed subsection 454C(1)).
Proposed new section 454D would cover revocation of the determination of a person as the
numbering scheme manager in the circumstances set out in proposed subsection 454D(1).
Before the Minister could revoke the determination of a person as the numbering scheme
27
manager, the Minister would be required to consult the numbering scheme manager, the
ACMA and the ACCC.
Proposed new section 454E would deal with directions to the numbering scheme manager.
The numbering scheme manager would be required to comply with a direction under
subsection 454E(7). Proposed subsection 454E(7) would be a civil penalty provision.
The Minister may, by legislative instrument, direct the numbering scheme manager to amend
the rules or change the processes of the numbering scheme. The direction would be required
to be consistent with the numbering scheme principles.
The ACMA or the ACCC may, by legislative instrument, direct the numbering scheme
manager to do, or refrain from doing, a specified act or thing in relation to the management of
the numbering scheme. The direction would be required to be consistent with the numbering
scheme principles and the rules and processes of the numbering scheme. Before the ACMA
gives a direction under this section, it would be required to consult with the Minister, the
ACCC and the numbering scheme manager. Before the ACCC gives a direction under this
section, it would be required to consult with the Minister, the ACMA and the numbering
scheme manager.
Proposed new section 454F would enable the ACMA or the ACCC, by written notice to a
person who is a CSP, carrier, or kind of person determined by the Minister in a legislative
instrument, to direct the person to comply with a rule or process published by the numbering
scheme manager. Under proposed subsection 454F(2), the person would be required to
comply with the direction. Proposed subsection 454F(2) would be a civil penalty provision.
Subsection 454F(4) provides that a notice given to a person in accordance with section 454F
would not be a legislative instrument (within the meaning of the Legislative Instruments Act
2003). This provision is merely declaratory and is included to assist readers. It is not an
exemption from the Legislative Instruments Act 2003.
The direction powers of the ACMA and the ACCC are intended to provide specific
mechanisms to protect the achievement of public policy objectives, particularly in the
transition to a new industry-based management scheme. It is expected that the ACMA and
ACCC would consult the affected parties, and other stakeholders, in advance of exercising
the powers.
Proposed new section 454G would clarify that documents containing the rules and processes
of the numbering scheme, including a plan for numbering of carriage services, are not
legislative instruments. This provision, which is included to assist readers, is also declaratory
of the law and is not intended to provide an exemption from the Legislative Instruments Act
2003.
Item 11 - Subdivision A of Division 2 of Part 22 (heading)
Item 11 of Schedule 6 to the Bill would repeal the heading to Subdivision A of Division 2 of
Part 22 and substitute the heading Subdivision A--Management by the ACMA.
Item 12 - Before section 455
Item 12 of Schedule 6 to the Bill would insert new section 455A before section 455.
Proposed section 455A would specify that Subdivision A of Division 2 of Part 22 does not
apply if there is a numbering scheme manager. That subdivision sets out various provisions in
relation to the numbering plan that will not be necessary in the event that numbering is
administered by a numbering scheme manager determined by the Minister.
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Item 13 - After section 459
Item 13 of Schedule 6 to the Bill would insert a new section 459A into Subdivision A of
Division 2 of Part 22 of the Tel Act. Proposed section 459A would enable the ACMA to
delegate, by writing, any or all of the powers conferred on the ACMA by the numbering plan
to a body corporate. Proposed section 459A replicates existing section 467, which would be
repealed by item 23 of Schedule 6 to the Bill, as described below. Enacting this section in
Subdivision A makes it subject to proposed section 455A to be inserted by item 12 of
Schedule 6 to the Bill, such that it would not apply if there is a numbering scheme manager.
Item 14 - Before section 463
Item 14 of Schedule 6 to the Bill would insert a new section 463A into Subdivision B of
Division 2 of Part 22 of the Tel Act. This Subdivision deals with the allocation system for
numbers, and proposed subsection 463A(1) would specify that if there is a numbering scheme
manager, the allocation system determined by the ACMA under this Subdivision may be
prepared by the numbering scheme manager. Proposed subsection 463A(2) would specify
that the ACMA must not determine an allocation system that does not meet the ACMA's
requirements (including in relation to the Telecommunications (Numbering Charges) Act
1997). Consistent with the consultation requirements contained in the Legislative Instruments
Act 2003, as the determination of the allocation system would be a legislative instrument
(subsection 463(1) refers), the ACMA would also be required to ensure affected parties,
including the numbering scheme manager, are consulted appropriately before making the
determination.
As allocation systems can be used to set charges for the purposes of the Telecommunications
(Numbering Charges) Act 1997, it is important that the ACMA can retain control of them but,
consistent with a move to industry-based management of numbering, it is important that
industry be able to input into such systems, and, if appropriate, prepare them for use by the
ACMA, if the ACMA agrees with them. It would also open to the ACMA to delegate any
powers conferred on it by an allocation system to the numbering scheme manager (see Item
15 of Schedule 6, as described below).
Item 15 - At the end of section 463
Item 15 of Schedule 6 to the Bill would insert a new subsection 463(8), providing for the
ACMA to delegate powers conferred on it by an allocation system to the numbering scheme
manager or another person. Such delegation may be appropriate where the function can be
conducted effectively and efficiently by the numbering scheme manager. For example,
because the numbering scheme manager would have day-to-day responsibility for numbering
matters, it may be better placed to administer an allocation system under delegation from the
ACMA, particularly where it did not involve the levy of significant charges.
Item 16 - After paragraph 465(1)(a)
Item 17 - Paragraph 465(2)(a)
Section 465 of the Tel Act deals with the register of allocated numbers.
Item 16 of Schedule 6 to the Bill would insert new paragraph 465(1)(aa) that would specify
that if there is a numbering scheme manager, the numbering scheme manager is the
designated authority for the purposes of section 465. If there is no numbering scheme
manager, the designated authority would be either the ACMA or if the ACMA enters into an
arrangement with another person under which the other person agrees to perform the
functions conferred on the designated authority by this section--that other person.
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Item 17 of Schedule 6 to the Bill would amend paragraph 465(2)(a) to omit reference to the
authority of the numbering plan.
Item 18 - Paragraph 466(1)(d)
Item 19 - Subsection 466(2)
Item 20 - Subsections 466(3) and (4)
Item 21 - Subsection 466(5)
Item 22 - Subsection 466(6)
Section 466 of the Tel Act deals with emergency service numbers in the numbering plan.
Items 18 to 22 of Schedule 6 to the Bill would make consequential amendments to
subsection 466 so that it would operate with respect to a service specified by the ACMA by
legislative instrument, if there is a numbering scheme manager, or otherwise specified in the
numbering plan made by the ACMA.
Item 23 - Section 467
Item 23 of Schedule 6 to the Bill would repeal section 467 of the Tel Act, consequential to
the insertion of a new section 459A into Subdivision A of Division 2 of Part 22 to be made
by item 13 of Schedule 6 to the Bill, as described above.
Item 24 - Subsection 468(10)
Item 25 - At the end of subsection 468(10)
Section 468 of the Tel Act deals with the collection of numbering charges, and
subsection 468(10) provides for the withdrawal of a number for non-payment of the annual
charge. Items 24 and 25 of Schedule 6 to the Bill would make consequential amendments to
insert references to the numbering scheme manager and the numbering scheme in this
subsection, so that the numbering scheme manager would be empowered to withdraw a
number for non-payment of the annual charge. This is to ensure there are effective
mechanisms to withdraw numbers, if required, under a numbering scheme.
Item 26 - Subsection 472(7) (definition of public number)
Item 27 - Subclause 10(3) of Schedule 2 (definition of public number)
Item 28 - Subclause 11(3) of Schedule 2 (definition of public number)
Items 26 to 28 of Schedule 6 to the Bill would make consequential amendments to repeal
existing definitions of public number in the Tel Act in subsection 472(7), subclause 10(3) of
Schedule 2, and subclause 11(3) of Schedule 2, and substitute a definition that "public
number means a number specified for use in connection with the supply of carriage services
to the public in Australia (within the meaning of subsection 456(2))". The proposed definition
would cover both a number specified in the numbering plan and a number specified under the
numbering scheme, similar to the proposed definition in Item 5 of Schedule 6 to the Bill.
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Telecommunications (Consumer Protection and Service Standards) Act 1999
Item 29 - Subsection 147(11) (paragraph (d) of definition of emergency service
organisation)
Item 30 - Subsection 147(11) (paragraph (e) of definition of emergency service
organisation)
Item 29 of Schedule 6 to the Bill would repeal paragraph (d) of the definition of the
expression 'emergency service organisation' in subsection 147(11) of the TCPSS Act and
substitute new paragraphs (d) and (da). These new paragraphs include in the definition
references to the rules and processes published by the numbering scheme manager, if there is
a numbering scheme manager, or the numbering plan, if there is no numbering scheme
manager. Item 30 of Schedule 6 would make a consequential amendment to paragraph (e) of
that definition to reflect the new subparagraphs (d) and (da).
Part 2 - Transitional provisions
Item 31 - Delegations by ACMA
Item 31 of Schedule 6 to the Bill would specify transitional provisions relating to delegations
by the ACMA.
These transitional provisions would preserve the continuity of delegations made by the
ACMA under subsection 467(1) or 467(1A)(a) of the Tel Act that were in force before the
commencement of Schedule 6 to the Bill, so that after the commencement of Schedule 6,
those delegations will have effect as if they were made under subsection 459A(1) or
459A(2)(a) respectively.
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TELECOMMUNICATIONS (NUMBERING CHARGES) AMENDMENT BILL 2015
Clause 1 - Short title
Clause 1 provides that the Numbering Charges Bill, when enacted, may be cited as the
Telecommunications (Numbering Charges) Amendment Act 2015.
Clause 2 - Commencement
Clause 2 specifies when the Act would commence. The provisions specified in column 1 of
the table will commence, or will be taken to have commenced, on the day specified in column
2 of the table.
The whole of the Act will commence on the later of: the start of the day after the Act receives
the Royal Assent; and immediately after the commencement of the Communications
Legislation (Deregulation and Other Measures) Act 2015 (but it will not commence at all if
that proposed Act does not commence).
Clause 3 - Schedules
Clause 3 is a machinery provision that would provide that each Act specified in a Schedule is
amended or repealed in accordance with the items of the Schedule concerned, and any other
items in the Schedule have effect according to their terms.
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Schedule 1 - Amendments
The amendments to the Telecommunications (Numbering Charges) Act 1997 (NCA) are
intended to ensure that numbering charges can continue to be effectively and efficiently
levied on industry in the event of a transition to industry-based numbering management. As
such the amendments provide for the effective interaction of the charging arrangements and
any industry-based management scheme.
The ongoing collection of numbering charges is a key public policy principle that any
industry-based numbering management scheme must effectively address, as indicated in the
principles set out in proposed new section 454C of the Tel Act (to be inserted by item 10 of
Schedule 6 to the Bill, as described above).
Telecommunications (Numbering Charges) Act 1997
Item 1 - Section 5 (definition of allocation)
Item 2 - Section 5
Item 3 - Section 5 (definition of surrendered)
Item 4 - Section 5 (definition of transferred)
Item 5 - Section 5 (definition of withdrawn)
Section 5 of the NCA sets out definitions of terms used in the legislation.
Item 1 of Schedule 1 to the Numbering Charges Bill would repeal the definition of
'allocation' and substitute a definition that allocation, in relation to a number, means the
allocation of the number in accordance with: an allocation system; or the rules and processes
published by the numbering scheme manager; or if there is no numbering scheme manager--
the numbering plan made by the ACMA.
Item 2 of Schedule 1 to the Numbering Charges Bill would insert a new definition providing
that numbering scheme manager has the same meaning as in the Tel Act (to be inserted by
Item 4 of Schedule 6 to the Bill, as described above). It would also insert a new definition of
'ported', in order to clarify the circumstances in which a number will be ported from one CSP
to another within the meaning of section 5A (see items 6 and 7 of Schedule 1 to the
Numbering Charges Bill, as described below).
Items 3 and 5 of Schedule 1 to the Numbering Charges Bill would repeal the definitions of
'surrendered' and 'withdrawn' and substitute new definitions that refer both to the rules and
processes published by the numbering scheme manager or if there is no numbering scheme
manager--the numbering plan made by the ACMA.
Item 4 of Schedule 1 to the Numbering Charges Bill would make a technical amendment to
the definition of 'transferred'.
Item 6 - Before subsection 5A(1)
Item 7 - Subsection 5A(2)
Section 5A of the NCA defines what constitutes the transfer of a number between two CSPs,
and subsection 5A(2) requires the CSPs to jointly give the ACMA written notice of the
transfer.
Item 6 of Schedule 1 to the Numbering Charges Bill would insert a new subsection 5A(1A) to
clarify that a number will be transferred for the purpose of the NCA if it is transferred in
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accordance with the rules and processes published by the numbering scheme manager, or if
there is no numbering scheme manager the numbering plan made by the ACMA.
Item 7 of Schedule 1 to the Numbering Charges Bill would insert a requirement for the CSPs
to also give the notice of transfer to the numbering scheme manager if there is one.
The amendments are intended to provide clarity in relation to who is responsible for a
number, given that numbers may move between carriage service providers. Such clarity is
important in ensuring charges are properly levied.
Item 8 - Subsection 17(2)
Item 8 of Schedule 1 to the Numbering Charges Bill would make a consequential amendment
to subsection 17(2) of the NCA, which deals with the continuity of holding numbers. Item 8
would omit the phrase "in accordance with the numbering plan" from the subsection, to
reflect that there would not be a numbering plan in place if the Minister has made a
determination of a numbering scheme manager.
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