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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMUNICATIONS LEGISLATION AMENDMENT (DEREGULATION AND
OTHER MEASURES) BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be moved on behalf of the Government
(Circulated by authority of the Minister for Communications,
the Honourable Senator Mitch Fifield)
OUTLINE
The Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017
(Bill) will amend a number of Acts to minimise the regulatory burden on the broadcasting and
telecommunications sectors, and to simplify regulation by removing redundant or otherwise
unnecessary provisions.
The Government is proposing amendments to the Bill that will:
ensure the Bill aligns with the Competition and Consumer Amendment (Misuse of
Market Power) Act 2017 (Amendment Sheet KN135);
remove Schedule 2 to the Bill, which contains amendments to streamline the ACMA's
broadcasting complaints handling and investigation frameworks contained under the
Broadcasting Services Act 1992 (Amendment Sheet KN136); and
ensure the right company receives the transitional support payment under the
Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017, and clarify a
provision under the Radiocommunications Transmitter Licence (Tax) Act 1983, to
ensure the provision operates as intended (Amendment Sheet GX170).
FINANCIAL IMPACT STATEMENT
These Government amendments have no financial impact.
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AMENDMENT SHEET KN135
Part 2 of Schedule 3 to the Communications Legislation Amendment (Deregulation and Other
Measures) Bill 2017 (the Bill) sets out two sets of amendments to Divisions 1 and 7 of Part
XIB of the Competition and Consumer Act 2010 (CCA). The amendments are consequential
to the Bill's proposed repeal of the tariff filing provisions in Divisions 4 and 5 of Part XIB.
The consequential amendments include the removal of references to tariff filing in the
introduction and enforcement provisions in Divisions 1 and 7 of Part XIB.
These consequential amendments were contingent on the commencement of the Competition
and Consumer Amendment (Misuse of Market Power) Bill 2017 (MMP Bill). As introduced,
the MMP Bill proposed to repeal Divisions 2 and 3 of Part XIB and made associated
consequential changes to the same provisions as the Bill in Divisions 1 and 7 of Part XIB. The
Competition and Consumer Amendment (Misuse of Market Power) Act 2017 (MMP Act)
passed Parliament with amendments such that the MMP Act does not amend provisions in
Divisions 1 and 7 of Part XIB. As a result, the relevant consequential amendments to Part
XIB in the Bill are no longer contingent on the MMP Act. The proposed amendments seek to
align the Bill with the MMP Act and are minor in nature.
Amendment (1)
This Amendment would remove the commencement table and replace it with a new table,
which would provide that the entire Bill commences on the day it receives the Royal Assent.
Different commencement dates are no longer required, as the commencement of Part 2,
Schedule 3 of the Bill (as proposed to be amended) would no longer be contingent on the
commencement of the MMP Act.
Amendment (2)
This Amendment would remove the heading 'Part 2--Contingent amendments' and substitute
it with 'Part 2--Further amendments' to reflect that the amendments in Part 2 (as proposed to
be altered by Amendment (4)) would no longer be contingent on the commencement of the
MMP Act.
Amendment (3)
This Amendment would remove the heading 'Division 1--Amendments if the Competition
and Consumer Amendment (Misuse of Market Power) Act 2017 does not commence before
this Act'. This is consequential to Amendment (4).
Amendment (4)
This Amendment would remove Part 2, Division 2 of Schedule 3 to the Bill which is no
longer required as the MMP Act does not amend provisions in Divisions 1 and 7 of Part XIB of
the CCA.
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AMENDMENT SHEET KN136
The Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017
(the Bill) was introduced into the House of Representatives on 29 March 2017.
Schedule 2 to Bill, as introduced, proposed the repeal of Part 11 of the Broadcasting Services
Act 1992 (BSA) and some minor technical amendments consequential to the proposed repeal.
Amendment (1) would remove Schedule 2 to the Bill in its entirety, with the effect of
retaining Part 11 of the BSA at this time.
Concerns have been raised by some stakeholders that the proposed repeal of Part 11 of the
BSA will undermine the complaints handling procedures contained in broadcasting industry
codes of practice. Whilst the Government continues to consider Part 11 of the BSA to be
legally redundant, these concerns will be reviewed, and legislative amendments to remove the
duplication between Parts 11 and 13 will be considered by Government at a later time.
Part 11 sets out the framework for broadcasting complaints to be made and investigated by the
Australian Communications and Media Authority (ACMA). Under this Part, the ACMA may
investigate complaints, made by a person, in relation to the commission of offences, breach of
a civil penalty provision, breach of a licence condition or class licence, or complaints relating
to content broadcast by BSA-licensed and national broadcasters. For complaints relating to
content broadcast by BSA-licensed broadcasters, section 148 requires the complaints handling
provisions under relevant codes of practice, such as the requirement to first direct complaints
to the relevant broadcaster, to be met before complaints may be directed to the ACMA.
Similar rules apply for the national broadcasters under section 150.
Part 13 of the BSA sets a separate framework for the ACMA's investigation functions. Under
this Part, the ACMA can conduct investigations in the performance or exercise of any of its
broadcasting, content and datacasting functions and related powers, as set out in section 10 of
the Australian Communications and Media Authority Act 2005 (the ACMA Act). Relevantly,
paragraphs 10(1)(j) and (m) of the ACMA Act, respectively, confer the following functions
on the ACMA:
monitor complaint with the broadcasting industry codes of practice; and
monitor and investigate complaints concerning broadcasting services.
The Federal Court's decision in Harbour Radio Pty Limited v Australian Communications
and Media Authority [2015] FCA 371 held that the ACMA's investigation power under Part
13 of the BSA - including in particular investigations in the performance of the ACMA's
functions under paragraphs 10(1)(j) and (m) of the ACMA Act - also extends to matters
which are subject to the Part 11 framework, essentially rendering Part 11 redundant. The
Federal Court's decision means that the ACMA can investigate code and other complaints
under Part 13, subject to such requirements at its discretion, including those currently set out
in section 148 of the BSA.
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NOTES ON AMENDMENTS
AMENDMENT (1)
Amendment (1)
This Amendment would remove Schedule 2 to the Bill in its entirety. This would have the
effect of reversing the proposed repeal of Part 11 of the BSA and removing the other minor
consequential amendments proposed in Schedule 2 to the Bill.
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AMENDMENT SHEET GX170
This amendment will omit Northern Rivers Television Pty Ltd (Northern Rivers) as a
specified company eligible to receive a transitional support payment under Part 3 of
Schedule 6 to the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017 (the
Broadcasting Reform Act), and to specify Network Investments Pty Ltd (Network
Investments) in its place. The amendments would also ensure that Network Investments
receive the transitional support payment for each of the relevant financial years.
A provision of the Radiocommunications Taxes Collection Act 1983, inserted by the
Broadcasting Reform Act will also be amended, so that pro-rata refunds would only apply to
tax imposed on transmitter licences paid in the financial year ending on 30 June 2017, to
ensure the provision operates as intended.
Background
Northern Rivers Television Pty Ltd transitional support payment
The Broadcasting Reform Act establishes a transitional support payment scheme for specified
companies. This entitles a company to a transitional support payment if it meets certain
criteria, including being the holder of a commercial television or radio broadcasting licence.
The scheme is intended to ensure that no commercial broadcaster is worse off under the new
taxation arrangements introduced as part of the media reform package.
Northern Rivers is specified as a company who can receive an annual transitional support
payment if they meet criteria for the payment. However on 1 June 2017, Northern Rivers
transferred the commercial television broadcasting licence and assets it held to Network
Investments. Under the policy, Network Investments, as the current holder of the commercial
television broadcasting licence would have been eligible for the annual payment of financial
assistance, however, is not currently specified in the Broadcasting Reform Act. This
amendment will specify Network Investments as being eligible for the payment.
Refund of tax during transition of broadcasting licence fees to new spectrum tax
A provision of the Radiocommunications Taxes Collection Act 1983 inserted by the
Broadcasting Reform Act may not operate as intended. The provision is intended to provide a
person with a pro-rata refund of tax imposed on the issue of the transmitter licence if
particular criteria are met. This will avoid duplication of taxation payments in the transition
to the new spectrum tax arrangements. To achieve this outcome, the intention is that the pro-
rata refund only applies to tax on transmitter licences paid in the financial year ending on 30
June 2017. However, this is not reflected in the provision and consequently tax paid on
licences in earlier years may also be included in calculations for the pro-rata refund, resulting
in higher payments to some commercial broadcasters than intended. This amendment will
ensure that the provision operates as intended.
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NOTES ON AMENDMENTS
Amendment (1)
This item amends paragraph 10C(2)(d) of the Radiocommunications Taxes Collection
Act 1983 (the Taxes Collection Act) to insert the words 'during the financial year ending on
30 June 2017' after the words 'transmitter licence'.
The effect of this amendment is that a person would only be eligible for a pro-rata refund of
tax imposed on the issue of a transmitter licence under subsections 6(3) or 6(8) of the
Radiocommunications (Transmitter Licence Tax) Act 1983 (the RTLT Act) if the imposition
occurred in the financial year ending on 30 June 2017, and not in an earlier financial year.
Amendment (2)
This item inserts a new Schedule 9 to the Bill relating to broadcasting licensee support
payments. The amendments contained in this Schedule will amend the Broadcasting
Legislation Amendment (Broadcasting Reform) Act 2017 (the Broadcasting Reform Act) to
omit Northern Rivers Television Pty Ltd (Northern Rivers) from the list of specified
companies eligible for a transitional support payment, and replace it with Network
Investments Pty Ltd (Network Investments).
The effect of this amendment is that Northern Rivers will not be eligible to receive future
transitional support payments, while Network Investments will be eligible to receive those
payments. The amendment modifies the operation of the Part in relation to Network
Investments, to ensure that it could elect not to receive the transitional support payments by
notifying the Secretary in writing that it does not want to receive payments before 28 days
after the amendment commences. The modified operation of the Part also ensures that
Network Investments can receive the transitional support payment for the first financial year
28 days after this amendment commences, provided the eligibility criteria are met.
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