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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMUNICATIONS
LEGISLATION AMENDMENT BILL (NO. 1) 2002
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Minister for
Communications, Information Technology and the Arts,
Senator the Hon.
Richard Alston)
COMMUNICATIONS LEGISLATION AMENDMENT BILL (NO. 1)
2002
OUTLINE
The Communications Legislation Amendment Bill (No. 1) 2002 (the Bill)
makes a series of amendments to:
• the Australian Communications Authority Act
1997;
• the Freedom of Information Act
1982;
• the Radiocommunications Act
1992;
• the Telecommunications Act
1997; and
• the Telecommunications
(Consumer Protection and Service Standards) Act 1999.
Schedule 1 to the Bill adds a new section 54A of the Australian
Communications Authority Act 1997 (ACA Act) to allow a definitions
determination made under subsection 54(1) of the ACA Act to apply, adopt or
incorporate such materials, and in such circumstances, as are permitted under
both section 314A of the Radiocommunications Act 1992 and section 589 of
the Telecommunications Act 1997.
Schedule 2 to the Bill contains provisions exempting from the application of
the Freedom of Information Act 1982 (FOI Act) certain documents related
to the administration of Schedule 5 to the Broadcasting Services Act 1992
(which deals with the regulation of on-line services). The amendments will
have the effect of exempting the Australian Broadcasting Authority (ABA) from
the operation of the FOI Act in relation to specific documents that are likely
to contain either offensive content which is the subject of a complaint to the
ABA or information which would enable, or would be likely to enable, a person to
gain access to that offensive content on the Internet. If the ABA were obliged
to disclose such information under the FOI Act, its statutory function of
regulating on-line content would be largely frustrated. This is because, once
documents are released under the FOI Act, their subsequent use and dissemination
cannot be controlled. The amendments will also exempt the Classification Board,
the Classification Review Board and the Office of Film and Literature
Classification from the operation of the FOI Act in relation to the documents
described above because these agencies may also hold such documents which could
be the subject of an FOI request.
Schedule 3 to the Bill amends the Radiocommunications Act 1992
(the Radcom Act):
• to provide that an
object of the Radcom Act is to make adequate provision of the radiofrequency
spectrum for use by agencies involved in the defence or national security of
Australia, law enforcement or the provision of emergency services and for use by
other public or community services;
• to
extend the exemption from compliance with some normal licensing requirements to
include a person performing a function or duty in relation to a wide range of
bodies involved in the investigation of crime or corruption and to allow the
Australian Communications Authority (ACA) to make such exemptions by written
determination (being a disallowable instrument);
• to allow the ACA to issue standard-term
apparatus licences that are inconsistent with the spectrum plan or any relevant
frequency band plan for radiocommunications devices that are used for
investigations or operations by a range of specified bodies involved in the
investigation of crime or corruption;
• to
allow the ACA to issue apparatus licences, that operate within a part of the
spectrum that is allocated to spectrum licences, to a specified body involved in
the investigation of crime or corruption without having to consider whether
special circumstances exist; and
• to allow
the ACA to issue apparatus licences, during or after the end of the
re-allocation period, to specified bodies involved in the investigation of crime
or corruption that authorise the operation of radiocommunications devices at
frequencies that are within a part or parts of the spectrum covered by a
spectrum re-allocation declaration.
Schedule 4 to the Bill amends the Telecommunications Act 1997 (the
Telecommunications Act) to abolish the specially-constituted Australian
Communications Authority (SC-ACA). The SC-ACA’s primary role is to
consider carriers’ applications for telecommunications facilities
installation permits under Schedule 3 to the Telecommunications Act. If
awarded, facilities installation permits give carriers immunity from State and
Territory laws for the purpose of installing telecommunications facilities of
national significance.
In the SC-ACA’s four years of operation
there have been no applications for facility installation permits under clause
21 of Schedule 3. Instead, carriers have utilised other avenues, such as
negotiations and court proceedings, to progress potentially contentious
installations. It is therefore proposed to abolish the SC-ACA.
Telecommunications (Consumer Protection and Service Standards) Act 1997
Amendments
• to improve the funding arrangements for the
National Relay Service levy (NRS levy) by aligning the time a person’s
liability to pay a NRS levy contribution arises to when the liability is
assessed and payable;
• to provide for the
same flexibility for calculating a person’s NRS levy liability as is found
in section 20R of the CPSS Act, in relation to the Universal Service Obligation
levy, by allowing the Minister to modify the formula in subsection 100(2) by
written determination;
• to allow the ACA to
vary an assessment of a person’s NRS levy contribution, by making such
alterations and additions as it thinks necessary, even if a levy has already
been paid by a person;
• to clarify that a
variation or revocation of a section 115 standard (relating to performance
standards to be complied with by telecommunications carriage service providers)
under subsection 125(3) or (4) is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901;
• to explicitly state in section 128 of the
CPSS Act that the Telecommunications Industry Ombudsman (TIO) dispute resolution
services are free to end-users; and
• to
clarify that the TIO may investigate complaints in relation to tariffs, charges
or fees for services other than the supply of telecommunications carriage
services.
The Bill is not expected to have any impact on Commonwealth expenditure
or revenue.
ABBREVIATIONS
The following abbreviations are used in this explanatory
memorandum:
ABA: Australian Broadcasting Authority
ACA: Australian
Communications Authority
ACA Act: Australian Communications Authority Act
1997
Bill: Communications Legislation Amendment Bill (No. 1)
2002
BSA: Broadcasting Services Act 1992
CPSS
Act: Telecommunications (Consumer Protection and Service Standards) Act
1999
FOI Act: Freedom of Information Act 1982
Radcom
Act: Radiocommunications Act 1992
SC-ACA: specially-constituted
Australian Communications Authority
Telecommunications
Act: Telecommunications Act 1997
TIO: Telecommunications Industry
Ombudsman
NOTES ON CLAUSES
Clause 1 provides that the Bill, when enacted, may be cited as the
Communications Legislation Amendment Act (No. 1) 2002.
Clause 2 provides that each provision of the Bill (specified in column 1 of the table in clause 2) will commence, or is taken to commence, on the day or at the time specified in column 2 of the table in clause 2. The table in clause 2 provides that sections 1 to 3 and anything not covered elsewhere in the table will commence on the day after the day on which the Bill receives Royal Assent. The table also provides that Schedules 1, 3 and 5 commence on the day after the day on which the Bill receives Royal Assent. The table provides that Schedule 2 will be taken to have commenced on 27 June 2002 (because of the desirability of having these amendments commence at the earliest possible date) and that Schedule 4 will commence on 1 April 2003 (the date on which the appointments of the eligible associate members of the SC-ACA will expire).
Clause 3 provides that the Bill amends each Act as specified in a Schedule to the Bill. There are five Schedules to the Bill. Schedule 1 provides for amendments to the Australian Communications Authority Act 1997. Schedule 2 provides for amendments to the Freedom of Information Act 1982. Schedule 3 provides for amendments to the Radiocommunications Act 1992. Schedule 4 provides for amendments to the Telecommunications Act 1997. Schedule 5 provides for amendments to the Telecommunications (Consumer Protection and Service Standards) Act 1999.
Item 1 – After section 54
This item inserts a
proposed new section 54A after section 54 of the ACA Act.
Section 54 of
the ACA Act allows the ACA to make a written determination defining one or more
expressions used in instruments made by the ACA under one or more specified laws
of the Commonwealth. Any such written determination is a disallowable
instrument for the purposes of section 46A of the Acts Interpretation Act
1901 (subsection 54(2)). Section 46A of the Acts Interpretation Act
provides that section 49A of that Act applies to an instrument that is a
disallowable instrument as if the instrument were a regulation under an Act.
Section 49A effectively allows a written determination made by the ACA under
section 54 to apply, adopt or incorporate (with or without modification) the
provisions of any Act or regulations as in force from time to time or any matter
contained in any other instrument or writing as in force or existing as the time
when the written determination takes effect.
This means that section 49A
restricts the ACA, in exercising its power under section 54 of the ACA Act, from
applying, adopting or incorporating within a written determination, matters
contained in an instrument or other writing that exist from time to time (ie.
matters in instruments or other writing made after the date of effect of the
written determination).
This causes unnecessary administrative work for
the ACA and lacks the flexibility found in section 314A of the
Radiocommunications Act 1992 and section 589 of the Telecommunications
Act 1997. Both of these sections allow instruments made under the relevant
Act to apply, adopt or incorporate any other instrument or writing (made within
or outside Australia, with or without a legislative, administrative or other
official nature and with or without any legal force or effect) as in force or
existing at a particular time or from time to time.
The proposed
amendment allows a determination made under subsection 54(1) of the ACA Act to
apply, adopt or incorporate such materials, and in such circumstances, as are
permitted under both section 314A of the Radiocommunications Act and section 589
of the Telecommunications Act. It provides that a determination made by the ACA
under subsection 54(1) of the ACA Act may define an expression used in a
specified instrument by applying, adopting or incorporating (with or without
modifications) matter contained in any other instrument or writing whatever as
in force or existing at a particular time (proposed paragraph 54A(1)(a)) or as
in force from time to time (proposed paragraph 54A(1)(b)). An instrument or
writing includes an instrument or writing made by any person or body in
Australia or elsewhere and whether of a legislative, administrative or official
or any other nature and whether or not having any legal force (proposed
paragraphs 54A(2)(a) to (c)). Examples of such instruments or writing are
regulations, rules or instruments made under a Commonwealth or State or
Territory Act; an international technical standard or performance indicator; a
written agreement or arrangement or an instrument or writing made unilaterally
(proposed paragraphs 54A(2)(d) to (g)). However, the examples given in proposed
paragraphs 54A(2)(d) to (g) do not limit the type of instrument or writing that
may be applied, adopted or incorporated in a written instrument made under
section 54 (proposed subsection 54A(3)).
Proposed subsection 54A(4) provides that proposed subsection 54A(1) has
effect despite anything in the Acts Interpretation Act 1901. This is to
ensure that the Acts Interpretation Act will not affect the ACA’s power to
make written determinations made under section 54 in the manner described
above.
Item 1 inserts a definition of “exempt Internet-content document” (for the purposes of Items 3 to 5) to mean either:
• any document which contains information (as defined in Schedule 5 of the BSA) which (i) has been copied from the Internet and (ii) was offensive Internet content when it was accessible on the Internet; or
• a document which sets out how to access, or is likely to facilitate access to, offensive Internet content (eg, by setting out the name of an Internet site, an IP address, a URL, a password or the name of a newsgroup).
“Offensive Internet content” is defined in Item 2.
In the definition of “exempt Internet-content document”, the use of the verb “copied” is intended to cover the creation, by whatever means, of any “document” which replicates the content of an Internet site. For example, a page of text or an image which has been downloaded from an Internet site to the hard disc of a computer is copied for these purposes. In the FOI Act, the term “document” includes information which has been stored or recorded electronically (see the definition in subsection 4(1) of the FOI Act).
Item 2 inserts a definition of “offensive Internet content” (for the purposes of Item 1) to mean Internet content which is either “prohibited content” or “potential prohibited content” within the meaning of Schedule 5 to the BSA. Prohibited content is defined in clause 10 of Schedule 5 to the BSA as either:
• Internet content hosted in Australia which has been classified by the Classification Board as RC or X; or
• Internet content hosted in Australia which has been classified by the Classification Board as R and is not subject to a restricted access system; or
• Internet content hosted outside Australia which has been classified by the Classification Board as RC or X.
Potential prohibited content is defined in clause 11 of Schedule 5 to the BSA as Internet content which has not been classified by the Classification Board but, if it were, there would be a substantial likelihood that the Internet content would be prohibited content.
The inter-related definitions in items 1 and 2 have the effect of defining the scope of the exemptions in Items 3, 4 and 5.
Item 3 – Division 1 of Part II of Schedule 2 (before the item relating to the Australian Broadcasting Corporation)
Division 1 of Part II of Schedule 2 to the FOI Act lists agencies which are exempt from the operation of the Act in respect of particular classes of documents by virtue of subsection 7(2) of the Act. Item 3 inserts in that list the ABA in respect of exempt Internet-content documents (as defined in Item 1) concerning the exercise of a power under Schedule 5 to the BSA. This addition will have the effect of exempting the ABA from the operation of the FOI Act in relation to those specific documents. Such documents are likely to contain either the offensive content which is the subject of a complaint to the ABA or information which would enable, or would be likely to enable, a person to gain access to that offensive content on the Internet. If the ABA were to be obliged to disclose such information under the FOI Act, its statutory function of regulating on-line content would be largely frustrated. This is because, once documents are released under the FOI Act, their subsequent use and dissemination cannot be controlled.
Item 4 adds the Classification Board and the Classification Review Board to Division 1 of Part II of Schedule 2 to the FOI Act. For the reasons outlined in Item 3 above, this will have the effect of exempting the two agencies from the operation of the FOI Act in respect of exempt Internet-content documents. The Classification Board is involved in the Internet content regulatory process through its function of classifying content and the Classification Review Board may be involved through its function of reviewing classification decisions. The exemption is required because either agency may hold exempt Internet-content documents which could be the subject of an FOI request.
Item 5 – Divisions 1 of Part II of Schedule 2 (before the item relating to the Reserve Bank of Australia)
Item 5 adds the Office of Film and Literature Classification to Division 1 of Part II of Schedule 2 to the FOI Act, which will have the effect of exempting it from the operation of the FOI Act in respect of exempt Internet-content documents. The exemption is required because, as the agency which provides support services to the Classification and the Classification Review Boards, the Office of Film and Literature Classification may hold exempt Internet-content documents which could be the subject of an FOI request.
This item repeals paragraph 3(b) of the Radcom Act and replaces it with
proposed new paragraph 3(b).
The Radcom Act provides for the planning
and management of the use of the radiofrequency spectrum. Section 3 sets out
the objects of the Radcom Act.
The proposed amendment clarifies the
objects section of the Radcom Act to expressly provide that making adequate
spectrum available for defence, national security, law enforcement and emergency
services is an object of the Radcom Act (proposed subparagraph 3(b)(i)). The
proposed amendment also acknowledges the importance of making adequate spectrum
available for use by other public and community services (proposed subparagraph
3(b)(ii)).
The purpose of the proposed amendment is to address concerns
of defence, national security, law enforcement and emergency services agencies
regarding adequate and assured future access to appropriate segments of the
radiofrequency spectrum. The Radcom Act already contains general provisions
regarding use of spectrum by operational agencies. The proposed amendment will
strengthen the existing provisions by providing an express acknowledgment of the
importance of adequate access to radiofrequency spectrum by these agencies.
The Radcom Act provides for the planning and management of the use of the
radiofrequency spectrum. This is achieved through the preparation of a
radiofrequency spectrum plan and frequency band plans (spectrum and band plans
– see Part 2.1 of the Radcom Act) and a structured licensing framework.
Licences are issued against the plans, authorising the operation of
radiocommunications devices (see Part 3.3 of the Radcom Act). The ACA
administers the Radcom Act.
Law enforcement bodies use licensed
radiocommunications equipment to covertly gather evidence in major criminal and
security investigations. Covert surveillance devices are usually operated under
warrants issued by State and Territory courts for use, installation and
maintenance of equipment. However, for evidentiary value, they must also be
properly authorised under the Radcom Act. Law enforcement bodies are now
experiencing difficulties caused by the restricted term of the apparatus
licences available for the use of some covert surveillance devices as the Radcom
Act no longer reflects advances in technology.
Legislative arrangements
under the Radcom Act generally preclude the licensing of devices that do not
conform to the spectrum plan and band plans (see, for example, sections 104,
108(2)). Covert surveillance devices often do not meet this requirement as the
devices are typically sourced from overseas countries where spectrum and band
planning differ from Australia. The ACA considers that there is no particular
spectrum management reason why covert surveillance devices could not be exempt
from this requirement as the operation of these devices is meant to be
undetectable and so would not cause interference to other spectrum users.
However, for the purposes of efficiently managing spectrum use, the ACA would
still expect to license the lawful use of these devices.
Section 27 of
the Radcom Act enables regulations to be made to exempt acts or omissions of
members of a class of persons referred to in subsection 27(1) of the Act from
all or any of:
• Part 3.1 (which prohibits unlicensed
radiocommunications, except in emergency situations, and allows for civil
proceedings to be taken in some circumstances);
• Part 4.1 (which
provides for the technical regulation of equipment that uses, or is affected by,
radio emissions);
• Part 4.2 (which provides for offences relating
to radio emission, including offences relating to interference with
radiocommunications); or
• specified provisions of those
Parts.
In particular, section 27 permits regulations to be made exempting
defence, security, fire fighting and ambulance personnel and police officers
from normal compliance requirements. Although these powers are intended to
operate only in exceptional circumstances, and are yet to be employed, it is
appropriate that the provision be broadened to allow persons performing a
function or duty in relation to bodies involved in the investigation of crime or
corruption to be able to be exempted from normal compliance requirements to
provide the same level of flexibility that currently exists for more traditional
‘police forces’. It is also proposed that exemption by regulation
will be replaced with exemption by determination in writing by the ACA (which
will be a disallowable instrument). The ability of the ACA to make an exemption
determination will ensure that the ACA has the ability to act quickly where the
circumstances require it, which is of particular importance in the context of
the investigations conducted by law enforcement bodies.
This item amends
subsection 27(1) to include a person performing a function or duty in relation
to a range of specified bodies involved in the investigation of crime or
corruption. Such an amendment is appropriate because, although these bodies may
have police officers on staff, technical surveillance operations may be carried
out by non-police personnel. The following specific law enforcement and
anti-corruption bodies are to be specifically included in subsection 27(1):
• Proposed paragraph (ba) specifies the
following specific anti-corruption bodies:
(i) the Independent Commission
Against Corruption constituted by the Independent Commission Against
Corruption Act 1988 (NSW); and
(ii) the Western Australian
Anti-Corruption Commission established by the Anti-Corruption Commission Act
1988 (WA).
• Proposed paragraph (bb)
specifies the following bodies:
(i) the New South Wales Crime Commission
constituted by the New South Wales Crime Commission Act 1985 (NSW);
and
(ii) the Crime and Misconduct Commission established by the Crime and
Misconduct Act 2001 (Qld).
• Proposed
paragraph (bc) specifies the National Crime Authority established by the
National Crime Authority Act 1984
(Cth).
• Proposed paragraph (bd) specifies
the New South Wales Police Integrity Commission constituted by the Police
Integrity Commission Act 1996 (NSW).
In addition, it is proposed to
allow the ACA to specify, by written determination, a body that performs
functions related to the investigation, prevention or prosecution of serious
crime or corruption for the purposes of paragraph 27(1)(be). Proposed
subsection 27(3) provides that a determination under proposed paragraph (be)
will be a disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901. A determination made by the ACA under proposed
paragraph (be) will therefore be required to be published in the Commonwealth
Gazette, tabled in both Houses of Parliament and will be subject to
Parliamentary disallowance.
Proposed subsection 27(4) provides a definition of “serious
crime” for the purposes of subparagraph 27(1)(be)(i). “Serious
crime” is defined as conduct, if engaged in within, or in connection with,
Australia, would constitute an offence against the law of Commonwealth, a State
or a Territory punishable by imprisonment for a period exceeding 12
months.
This item adds a proposed additional paragraph at the end of subsection
104(1). Proposed paragraph 104(1)(c) will enable the ACA to issue an apparatus
licence to a body covered by paragraphs 27(1)(b) to (be) to authorise the
operation of specified radiocommunications devices, or radiocommunications
devices of a specified kind, for the purpose of investigations or operations
conducted by one of the bodies.
Section 104 of the Radcom Act enables
the ACA to issue short-term apparatus licences that are inconsistent with the
spectrum plan or any relevant frequency band plan to allow the flexibility to
deal with major public events. These licences have a maximum term of 30 days
(subsection 104(2)) and may be renewed on one occasion only (subsection
104(3)).
The proposed amendment allows the ACA to issue standard-term
apparatus licences that are inconsistent with the spectrum plan or any relevant
frequency band plan. It is proposed that the ACA should be able to issue
licences for radiocommunications devices (as defined in subsection 7(1) of the
Radcom Act) that are used for investigations or operations by law enforcement
bodies, subject to certain conditions being met. Paragraph 107(1)(g) would
enable the ACA to make such licences subject to conditions specified in the
licence. Such conditions might be aimed at ensuring that the licensee uses the
specified device in a lawful manner and in a way that avoids interference to
other radiocommunications licensees.
It is proposed that the issue of
such licences should not be subject to the restrictions in subsections 104(1),
(2) and (3) of the Act. Currently, subsection 104(2) provides that a licence
issued under subsection 104(1) must not be issued for more than 30 days.
Subsection 104(3) provides that a licence issued under subsection 104(1) must
not be renewed under section 130 of the Radcom Act more than once. The proposed
amendment will allow such licences to be issued for more than 30 days and
renewed more than once as a covert surveillance operation may extend over more
than 60 days.
It is proposed that the ACA will record details of
apparatus licences issued for covert surveillance devices in a confidential part
of the Register of Radiocommunications Licences as permitted by section 152 of
the Radcom Act.
This item replaces the references to “The licence” with
reference to “An apparatus licence of a kind mentioned in paragraph (1)(a)
or (b)” in subsections 104(2) and (3).
Currently, subsection
104(2) provides that a licence issued under subsection 104(1) must not be issued
for more than 30 days. Subsection 104(3) provides that a licence issued under
subsection 104(1) must not be renewed under section 130 of the Radcom Act more
than once.
Since investigations that are conducted by law enforcement
bodies may often last longer than 60 days, it is inappropriate that such
restrictions should apply to a licence issued to a law enforcement body under
proposed paragraph 104(1)(c). The effect of the proposed amendment will be that
a licence issued under paragraph 104(1)(c) will not be limited to 30 days in
duration and to renewal only once.
This item repeals existing subsection 105(2) and replaces it with
proposed new subsection 105(2). Subsection 105(1) of the Act currently provides
that, subject to subsection 105(2), the ACA must not issue an apparatus licence
that authorises the operation of radiocommunications devices at frequencies that
are within a part of the spectrum that is designated by the Minister under
section 36 to be allocated by issuing spectrum licences. Subsection 105(2)
provides that the ACA may issue such an apparatus licence if it is satisfied
that the special circumstances of the particular case justify the issuing of the
licence.
Proposed subsection 105(2) expands the circumstances in which
the ACA may issue an apparatus licence in spectrum that is converted to the
market system. Under proposed subsection 105(2), the ACA may issue such an
apparatus licence if it is satisfied that the special circumstances of the
particular case justify the issue of the licence, or to a body covered by
paragraphs 27(1)(b) to (be) for the purpose of investigations or operations
conducted by the body.
The amendment is proposed on the basis that the
ACA should not be restricted by considering special circumstances in deciding
whether to issue a licence under section 105(1) to a law enforcement body
covered by paragraphs 27(1)(b) to (be).
Item 7 – After
paragraph 153P(2)(d)
Part 3.6 of the Radcom Act (sections 153A to
153P) provides for the allocation of encumbered spectrum. Section 153P applies
where a spectrum re-allocation declaration (made under section 153B) is in force
in relation to a particular part or parts of the spectrum. During the
re-allocation period, the ACA is restricted from issuing an apparatus licence
that authorises the operation of radiocommunications devices at frequencies that
are within the part or those parts of the spectrum subject to the re-allocation
declaration or within the area or areas specified in the declaration (paragraphs
153P(2)(a) and (b)). However, paragraphs 153P(2)(c) to (e) allow the ACA to
issue an apparatus licence where the licence is issued under section 153M
(re-allocation by issuing apparatus licences); or the licence is issued by way
of a renewal of an apparatus licence; or where the ACA is satisfied that the
special circumstances of the particular case justify the issuing of the
licence.
The proposed paragraph will include in the exceptions to the
restriction under subsection 153P(2) the case where the licence is issued to a
body covered by paragraphs 27(1)(b) to (be) for the purposes of investigations
or operations conducted by the body. The proposed amendment will ensure that
the ACA will not be restricted from issuing an apparatus licence under
subsection 105(2).
Item 8 – Subsection
153P(3)
Subsection 153P(3) provides that after the end of the
re-allocation period, the ACA must not issue an apparatus licence that
authorises the operation of radiocommunications devices at frequencies that are
within the part or those parts of the spectrum subject to a re-allocation
declaration or within the area or areas specified in the declaration unless the
ACA is satisfied that the special circumstances of the particular case justify
the issuing of a licence.
The proposed amendment will provide a further
exception to this restriction in the case where a licence is issued to a body
covered by paragraphs 27(1)(b) to (be) for the purposes of investigations or
operations conducted by the body.
Similarly to the proposed amendment in
Item 7, the proposed amendment will ensure that the ACA will not be restricted
from issuing an apparatus licence under subsection 105(2).
This item repeals Clause 40 of Schedule 3 to the Telecommunications Act.
Clause 40 of Schedule 3 provides that the functions and powers conferred
on the ACA under Part 1 of Schedule 3 are to be exercised by the Chairman of the
ACA and eligible associate members of the ACA (known as the
“specially-constituted ACA” or SC-ACA).
The SC-ACA’s
primary role is to consider carriers’ applications for telecommunications
facilities installation permits under Schedule 3 to the Telecommunications Act.
If awarded, facilities installation permits give carriers immunity from State
and Territory laws for the purpose of installing telecommunications facilities
of national significance.
In its four years of operation, the SC-ACA has
not considered any applications for facility installation permits under clause
21 of Schedule 3. Instead, carriers have utilised other avenues, such as
negotiations and court proceedings, to progress potentially contentious
installations. It is therefore proposed to abolish the SC-ACA.
The
SC-ACA comprises six people with environmental, heritage and town planning
expertise. The committee members were appointed as eligible associate members
in 1998 for five-year terms. The six eligible associate members’
appointments will be allowed to continue until their expiry date on 1 April
2003. Consequently, the proposed amendment would commence on that date (see
clause 2). Any residual responsibilities of the SC-ACA will be undertaken by
the ACA itself.
Abolishing the SC-ACA will improve the efficiency of the
ACA’s administrative responsibilities.
Subsection 5 –
Telecommunications (Consumer Protection and Service Standards) Act
1999
This item inserts a definition of “participating person” in
section 94 of the CPSS Act to provide that this term has the meaning provided by
proposed section 94A (see item 2). This is a consequential amendment as a
result of proposed section 94A.
This item inserts proposed section 94A into Part 3 of the CPSS Act. Part
3 of the CPSS Act makes provision for the National Relay Service (NRS). The NRS
is a service that provides people who are deaf or hearing or speech impaired
with access to a standard telephone service on terms, and in circumstances, that
are comparable to those on which other Australians have access to a standard
telephone service. The cost of the NRS service is funded through the NRS
levy.
The CPSS Act sets out the method of calculating a person’s
NRS levy for a quarter. Section 99 of the CPSS Act provides that the NRS levy
is payable by each person who:
• is a
participating person for the last eligible revenue period that ends before the
start of the quarter (as defined in section 94);
and
• is covered by the most recent levy
assessment (as defined in section 101C) made before the start of the
quarter.
Currently, a “participating person” for an eligible
revenue period is a person who was a carrier at any time during the eligible
revenue period (section 20A of the CPSS Act). A person’s “eligible
revenue” for an eligible revenue period is determined having regard to the
Telecommunications Universal Service Obligation (Eligible Revenue)
Regulations 1998, which is deemed to be a determination of eligible revenue
by the ACA (section 20B of the CPSS Act). “Eligible revenue period”
is defined by section 20C of the CPSS Act, and in the context of section 99
refers to the last whole financial year or any other period determined in
writing by the Minister. To date the Minister has made no such
determination.
The purpose of the amendments contained in items 1, 3, 5,
6, 8 and 9 in this Schedule is to align the time that a person’s liability
to pay a NRS levy contribution arises to when the liability is assessed and
payable. The proposed amendment inserts a definition of “participating
person” for the purposes of Part 3 of the Act to reflect the proposed
alignment. The definition will provide that a person is a participating person
for a quarter if the person was a carrier at any time during the quarter or the
Minister makes a written determination that carriage service providers are
participating persons for the quarter and the person was a carriage service
provider at any time during that quarter (proposed subsection 94A(1)).
Proposed subsection 94A(2) provides that a person is not a participating
person for a quarter if the person’s gross telecommunications revenue for
the eligible revenue period to which the most recent eligible revenue assessment
relates is less than the amount determined in writing by the Minister or if the
person is of a kind exempt from proposed section 94A by virtue of a written
determination by the Minister. A person’s gross telecommunications
revenue for an eligible period has the meaning given by the determination made
by the Minister for the purposes of paragraph 94A(2)(a) (proposed subsection
94A(4)).
Written determinations made by the Minister for the purposes of
paragraphs 94A(1)(b), (2)(a) or (b) will be disallowable instruments for the
purpose of section 46A of the Acts Interpretation Act 1901 (proposed
subsection 94(3)).
This item repeals section 99 and replaces it with proposed section 99.
The effect of proposed section 99 is that the NRS levy will be payable by each
person who is a participating person for the quarter and who is covered by the
most recent eligible revenue assessment made before the start of the quarter.
In combination with the proposed definition of “participating
person” in item 2, the proposed amendment aligns the time a person’s
liability to pay a NRS levy contribution arises to when the liability is
assessed and payable. This will have the effect that a person’s liability
to pay an NRS levy contribution will be dependent on the person’s
operations during the financial year and the quarter in which the levy is due
and payable.
Item 4 – After subsection 100(2)
This item inserts
proposed subsections 100(2A) and 100(2B) after subsection 100(2) of the CPSS
Act.
Section 100 of the CPSS Act sets out the method for calculating the
NRS levy for a quarter (as defined in section 94), and the method for
calculating a taxpayer’s NRS levy contribution amount for a quarter. The
NRS Levy Imposition Act 1998 imposes levy at the rate of 100% on NRS
contribution amounts calculated under section 100 of the CPSS Act. The formula
in subsection 100(2) of the CPSS Act for calculating each taxpayer’s NRS
contribution amount is based on the taxpayer’s eligible revenue and the
total eligible revenue of all taxpayers.
Part 2 of the CPSS Act provides
for the Universal Service Regime and requires carriers to pay a share of the
Universal Service Obligation (USO) levy. Section 20R in Part 2 of the CPSS Act
sets out the formula for calculating a participating person’s USO levy
liability. Subsection 20R(3) provides that the Minister may modify this formula
by written determination. Subsection 20R(4) provides that a determination under
subsection 20R(3) is a disallowable instrument for the purposes of section 46A
of the Acts Interpretation Act 1901.
Proposed subsection 100(2A)
would provide for the same flexibility for calculating a person’s NRS levy
liability as is found in section 20R of the CPSS Act, in relation to the USO
levy, by allowing the Minister to modify the formula in subsection 100(2) by
written determination. Consistent with the terms of subsection 20R(4), any
determination made by the Minister which modifies the formula will be a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901 (proposed subsection 100(2B)).
Item 5
– Subsection 100(3) (definition of eligible
revenue)
Subsection 100(3) of the CPSS Act provides that eligible
revenue for a taxpayer for a quarter means the taxpayer’s eligible revenue
as shown in the most recent levy assessment made before the start of the
quarter. Section 101C provides that the most recent levy assessment means the
assessment most recently made by the ACA under section 193 of the
Telecommunications Act 1997 (prior to the commencement of item 15 of
Schedule 4 to the Telecommunications Legislation Amendment Act 1999);
under section 64 of the CPSS Act (prior to the commencement of Schedule 1 of the
Telecommunications (Consumer Protection and Service Standards) Amendment Act
(No.2) 2000) or under section 20U of the CPSS Act.
Section 20U of the
CPSS Act requires the ACA to make a written assessment in relation to the
Universal Service Obligation levy for a claim period. This assessment, among
other things, is based on a participating person’s levy debit, calculated
under section 20R of the CPSS Act. The formula for calculating a participating
person’s levy debit is found in subsection 20R(2) of the CPSS Act. This
formula is based on the levy contribution factor that is worked out under
section 20H of the CPSS Act. Subsection 20H(1) states that after the ACA has
assessed the eligible revenue of participating persons for an eligible revenue
period the ACA must work out a levy contribution factor for the period for each
of those persons. Section 20F of the CPSS Act requires the ACA to make a written
assessment of each participating person’s eligible revenue for an eligible
revenue period.
A levy assessment under section 20U is made some time
after the assessment of eligible revenue for an eligible revenue period under
section 20F. In order to allow the most recent eligible revenue assessment to be
used in calculating NRS levy contributions, rather than the eligible revenue
assessment used in the most recent levy assessment made under section 20U, the
proposed amendment changes references to the ‘most recent levy
assessment’ in section 99 of the CPSS Act to refer instead to the
‘most recent eligible revenue assessment’.
Item 6 –
Subsection 100(3) (definition of eligible revenue, note)
This
item omits reference to “levy” and replaces it with reference to
“eligible revenue” as a consequence of the proposed amendment in
Item 5.
This item inserts an additional section after section 100 of the CPSS
Act. Proposed subsection 100A(1) provides that the ACA may vary a
taxpayers’ NRS contribution amount for a quarter by making such
alterations and additions as it thinks necessary, even if the NRS contribution
amount has been paid. Proposed subsection 100A(2) allows the ACA to refund an
overpayment where there has been an overpayment of NRS levy.
In relation
to the USO levy, subsection 20W(1) of the CPSS Act allows the ACA to vary an
assessment made under Part 2 by making such alterations and additions as it
thinks necessary, even if credits or levy has been paid in respect of an
assessment. Section 20ZE of the CPSS Act requires any overpayment of the USO
levy to be refunded.
The proposed amendment includes provisions similar
to those in subsection 20W(1) and section 20ZE in Part 3 of the Act to allow the
ACA to vary an assessment of a person’s NRS levy contribution, by making
such alterations and additions as it thinks necessary, even if a levy has
already been paid by a person. The proposed amendment also provides that if
there is an overpayment of a levy, the overpayment is to be refunded. This will
allow flexibility in the administration of the NRS levy similar to that which
exists in relation to the USO levy, and will allow any errors in calculation or
collection of the NRS levy to be corrected by the ACA.
This item omits reference to “levy” and replaces it with
reference to “eligible revenue” as a consequence of the proposed
amendment in Item 5.
Item 9 – Paragraph
101C(c)
This item omits reference to “20U” and replaces
it with reference to “20F”. The purpose of the proposed amendment is
to allow the most recent eligible revenue assessment to be used in calculating
carriers’ NRS levy contributions (see section 20F), rather than the
eligible revenue assessment used in the most recent levy assessment made under
section 20U (see discussion at Item 5 above).
This item inserts proposed subsection 125(5) and 125(6) at the end of
section 125 of the CPSS Act. Proposed subsection 125(5) provides that a
revocation or variation of a section 115 standard must be in writing. Proposed
subsection 125(6) provides that any such instrument of revocation or variation
would be a disallowable instrument for the purposes of section 46A of the
Acts Interpretation Act 1901 (AIA).
Section 115 of the CPSS Act
provides that the ACA may make, by written instrument, performance standards to
be complied with by carriage service providers with respect to customer service.
Section 125 applies to a standard made under section 115. Subsection
125(2) provides that if the Minister revokes a direction under section 124 that
required the ACA to make a standard under section 115, the ACA must revoke the
section 115 standard that is in force because of the direction. Subsection
125(3) provides that if the Minister varies a direction, the ACA must
either:
• vary the section 115 standard that
is in force because of the direction so that the standard complies with the
varied direction; or
• revoke the section 115
standard and determine a new section 115 standard that so
complies.
Subsection 125(4) provides that if a section 115 standard is in
force because of a direction under section
124:
• the ACA may vary the standard on its
own initiative, but only in such a way that the varied standard still complies
with the direction; and
• the ACA may, on its own
initiative, revoke the standard and determine a new section 115 standard that so
complies.
It is not clear from section 125 whether a revocation or
variation of a section 115 standard under section 125 is a disallowable
instrument. The original standard made under section 115 is a disallowable
instrument (subsection 115(6)). If the CPSS Act relied only on the inherent
power to vary or revoke that instrument, as provided for by section 33(3) of the
AIA, then any variation or revocation would also be made pursuant to the power
to be implied from section 115 and would similarly be a disallowable instrument.
In this instance, it appears that subsection 33(3) of the AIA cannot operate
because of the express provision made in section 125 about the circumstances in
which a standard can be varied and revoked. However, it is also arguable that
even though a revocation or variation will always be made under paragraph
125(3)(a) or 125(4)(a) as the case may be, rather than under subsection 115(1)
and subsection 33(3) of the AIA, the instrument made under section 125 is still
a standard which is subject to subsection 115(6).
The proposed
amendment therefore clarifies this situation by providing that a revocation or
variation of a section 115 standard is a disallowable instrument. This approach
is consistent with directions made under section 124 and standards made under
section 115 being disallowable instruments (subsections 124(4) and
115(6)).
This item inserts proposed subsection 128(4A) after subsection 128(4). The
proposed amendment provides that an end-user of a carriage service is not liable
to pay any fee or charge (however described) to the provider of the carriage
service in respect of a complaint made to the TIO by the end-user about the
carriage service.
Part 6 of the CPSS Act makes provision for the TIO
scheme. The TIO is an industry-funded scheme, deriving its income from members
who are charged fees for complaint resolution services provided by the TIO to
members and end-users of carriage services. A member is only charged complaint
handling fees if the TIO receives a complaint from one of the member’s
customers. The funding system acts as an incentive for members to keep TIO
investigations to a minimum.
Section 128 of the CPSS Act provides for
membership of the TIO scheme, sets out the powers the TIO scheme must provide
for, provides examples of the types of complaints the TIO may investigate and
specifies those complaints that the TIO is prohibited from investigating.
Subsection 128(4) of the CPSS Act states that the TIO scheme must
provide for the TIO to investigate, make determination and give directions
relating to complaints about carriage services by end-users of those
services.
The TIO’s mission statement is “Providing free,
independent, just, informal and speedy resolution of
complaints”.
One of the six principles (accessibility) outlined in
Benchmarks for Industry-Based Customer Dispute Resolution Schemes
(Department of Industry, Science and Tourism, August 1997) is that a scheme make
itself readily available to customers by promoting knowledge of its existence,
be easy to use and have no cost barriers.
The TIO has brought to the
attention of the Minister for Communications, Information Technology and the
Arts a practice of some members of the TIO scheme of charging their customers
fees in respect of complaints that the customers make to the TIO. These fees are
usually commensurate with the complaint handling cost charged by the TIO to
those members.
This practice undermines the TIO’s mission to
provide free dispute resolution services to consumers and is inconsistent with
the principle of Accessibility outlined in Benchmarks for Industry-Based
Customer Dispute Resolution Schemes. The practice also undermines the
Government’s election commitment, outlined in ‘Telecommunications
for the 21st Century’, to maintain the TIO as a free and speedy
means of pursuing grievances with telecommunications service
providers.
Some TIO members who have engaged in this practice have argued
that because the charges relate to disputes they do not relate to carriage
services and therefore are not within the TIO’s jurisdiction (having
regard to the terms of subsection 128(4)).
The proposed amendment to
section 128 therefore explicitly states that the TIO dispute resolution services
are free to end-users.
This item inserts after the word “tariff” in paragraph
128(6)(a) the words “charged for the supply of carriage services”.
Paragraph 128(6)(a) states that the TIO scheme must not provide for
investigations into the levels at which tariffs are set.
The purpose of
the proposed amendment is to address arguments raised by some TIO members that
the TIO does not have the jurisdiction to investigate complaints about the
practice of charging end-users because of the operation of paragraph
128(6)(a).
The proposed amendment therefore amends section 128 to clarify
that the TIO is only precluded from investigating complaints about the level at
which tariffs are set with respect to tariffs that are imposed for the supply of
carriage services. That is, that the TIO scheme may provide for the TIO to
investigate the level at which tariffs are set for services other than carriage
services, by members of the TIO scheme. This would enable the TIO to
investigate complaints, for example, in relation to charges being made by a TIO
member to end-users for the complaint handling cost charged by the TIO and early
contract termination fees for mobile phone services.
This item provides that the amendments made by items 2 to 9 in this
Schedule apply in respect of each levy quarter that begins on or after the date
of commencement of this Schedule.