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2004-2005-2006-2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMUNICATIONS LEGISLATION AMENDMENT (INFORMATION
SHARING AND DATACASTING) BILL 2007
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Communications, Information Technology and the Arts,
Senator the Hon. Helen Coonan)
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COMMUNICATIONS LEGISLATION AMENDMENT (INFORMATION
SHARING AND DATACASTING) BILL 2007
OUTLINE
The Communications Legislation Amendment (Information Sharing and Datacasting)
Bill (the Bill) would amend the Australian Communications and Media Authority Act
2005 (the ACMA Act) to authorise the disclosure of certain information by the Australian
Communications and Media Authority (ACMA) to the Minister for Communications,
Information Technology and the Arts, Departments, government agencies and regulatory
bodies.
ACMA frequently receives information through the performance of its functions and the
exercise of its powers in relation to the regulation of broadcasting, the Internet,
radiocommunications and telecommunications that would be relevant to other regulatory
or administrative bodies or personnel. As an example, ACMA and the Australian
Competition and Consumer Commission (ACCC) have a common interest in the media
industry - ACMA in relation to the media ownership and control rules in the
Broadcasting Services Act 1992 (BSA), and the ACCC in relation to the merger approval
procedures in the Trade Practices Act 1974 (TPA). Either agency may receive
information relating to the question of control of media assets that would be highly
relevant to the other agency in the performance of its statutory functions.
Amendments to the TPA to provide the ACCC with authority to disclose protected
information have also been brought before the Parliament. This Bill would provide
complementary, but not identical, information sharing authorisations to ACMA. This
would ensure that the ACCC is not denied access to certain information obtained by
ACMA that would be relevant to the ACCC's performance of its statutory functions.
Further, legislative authorisation of the sharing of certain kinds of information would
reduce overlapping or duplicate requests for information made by regulators to industry.
However, since ACMA routinely obtains commercially sensitive or otherwise
confidential information in the performance of its functions or exercise of its powers, it is
appropriate to limit authorised disclosure to those with which ACMA has an ongoing
cooperative role. The amendments in this Bill are framed accordingly.
This Bill would authorise ACMA to disclose certain classes of information in a limited
number of circumstances, including:
· information given in confidence to ACMA in connection with the performance of its
functions or the exercise of its powers;
· information ACMA has obtained as a result of its information-gathering powers, as set
out in the BSA, the Radiocommunications Act 1992 (Radiocommunications Act), the
Telecommunications Act 1997, and the Telecommunications (Consumer Protection
and Service Standards) Act 1999; and
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· information given in confidence to ACMA by a government authority of a foreign
country. This reflects the important cooperative efforts undertaken by ACMA with
the regulatory agencies of foreign countries in relation to issues such as offensive
Internet content and child-safety online.
The ACMA Chair may impose conditions on the disclosure of particular information by
ACMA officials.
The Bill would also authorise ACMA to disclose information to other people, including:
· the Minister for Communications, Information Technology and the Arts,
· another Minister, if the information to be disclosed relates to a matter arising under an
Act administered by that Minister; or
· the Secretary of the relevant Minister's department, or to another officer authorised by
the Secretary, for the purposes of advising the Minister concerned; or a Royal
Commission, where the protected information will assist the Commission in its
inquiries.
Further disclosures of information may be prescribed by regulation.
The Bill also contains measures concerning the allocation of datacasting transmitter
licences, including in relation to channel A and channel B datacasting transmitter
licences.
These measures would amend:
· the Radiocommunications Act to give the ACMA greater flexibility with respect to its
spectrum management functions, by providing ACMA with the power to vary
frequencies on which datacasting transmitter licences operate, a power which is
already available in relation to other transmitter licences; and
· the Datacasting Charge (Imposition) Act 1998 (Datacasting Charge Act) to correct
anomalies concerning the application of datacasting charges in relation to channel B
datacasting transmitter licences. This amendment would give effect to the
Government's decision that a channel B licensee is not subject to an annual revenue
based fee.
FINANCIAL IMPACT STATEMENT
This Bill is expected to have minimal impact on Commonwealth expenditure or revenue.
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ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
ACMA: Australian Communications and Media Authority
ACMA Act: Australian Communications and Media Authority Act 2005
Bill Communications Legislation Amendment (Information
Sharing and Datacasting) Bill 2007
BSA: Broadcasting Services Act 1992
Datacasting Charge Act Datacasting Charge (Imposition) Act 1998
Radiocommunications Act: Radiocommunications Act 1992
Telecommunications Act: Telecommunications Act 1997
TCPSS Act: Telecommunications (Consumer Protection and Service
Standards) Act 1999
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NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides that the Bill, when enacted, may be cited as the Communications
Legislation Amendment (Information Sharing and Datacasting) Act 2007.
Clause 2 - Commencement
Clause 2 provides that each provision of the Bill specified in column 1 of the table in
clause 2 will commence, or will be taken to have commenced, on the day or at the time
specified in column 2 of that table.
Item 1 of the table provides that clauses 1 to 3, and anything in the Bill that is not covered
in the table, will commence on the day on which the Bill receives the Royal Assent.
Item 2 of the table provides that the amendments made in Division 1 of Part 1 of
Schedule 1 to the Bill will commence the day after the Bill receives the Royal Assent.
These provisions would amend the ACMA Act to provide for the disclosure of certain
information by ACMA officials.
Item 3 of the table in Clause 2 provides that the amendments made in Division 2 of Part 1
of Schedule 1 to the Bill will commence on the later of: (a) immediately after the start of
the day after the Bill receives the Royal Assent and (b) the time item 77 of Schedule 1 to
the Communications Legislation Amendment (Content Services) Act 2007 (`Content
Services Act') commences.
A bill to enact the Content Services Act is currently before Parliament. Item 77 of that
bill would insert a new Schedule 7 into the BSA. In the event that Item 77 commences,
Division 2 of Part 1 of Schedule 1 to the Bill would make a consequential amendment to
the definition of "authorised disclosure information" that is proposed to be inserted into
the ACMA Act. However, if item 77 of the Content Services Act does not commence at
all, then Item 3 of the table provides that Division 2 of Part 1 of Schedule 1 to the Bill
will not commence at all. This is because, in that case, the consequential amendment
would be unnecessary.
Item 4 of the table in Clause 2 provides that Part 2 of Schedule 1 to the Bill will
commence the day after the Bill receives the Royal Assent. Part 2 of Schedule 1 would
amend the Radiocommunications Act to permit the ACMA to vary spectrum specified in
a datacasting transmitter licence after the licence has been issued. It would also amend
the Datacasting Charge Act to clarify that the datacasting charge will not apply to the
provision of services on a channel B datacasting transmitter licence.
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Clause 3 - Schedule(s)
Clause 3 provides that each Act specified in a Schedule to the Bill is amended or repealed
as set out in the Schedule concerned. There is one Schedule to the Bill which provides
for amendments to the ACMA Act, Radiocommunications Act and Datacasting Charge
Act.
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Schedule 1 - Amendments
Part 1 - Amendments commencing on the day after Royal Assent
Item 1 - Section 3
Item 1 would insert a new definition, "ACMA official", into section 3 of the ACMA Act.
The new definition provides that an "ACMA official" is a member or associate member
of ACMA, a member of the ACMA staff or a person whose services are made available
to the ACMA under subsection 55(1) of the ACMA Act. Subsection 55(1) of the ACMA
Act provides for officers or employees of other Commonwealth authorities to be made
available to for the purposes of the ACMA.
The definition of "ACMA official" is significant because the provisions contained in item
3 of Schedule 1 to the Bill, which would insert new Part 7A of the ACMA Act, authorise
the disclosure of "authorised disclosure information" (see definition item 2) in certain
circumstances by "ACMA officials".
Item 2 - Section 3
Item 2 would insert a new definition, "authorised disclosure information", into section 3
of the ACMA Act. The definition of "authorised disclosure information" is significant
because the provisions contained in item 3 of Schedule 1 to the Bill, which would insert
new Part 7A of the ACMA Act, authorise the disclosure of this type of information by
ACMA officials.
While it is envisaged that the majority of authorised disclosure information would be
commercial in nature, it is important to note that to the extent that such information
includes "personal information" (as defined in section 6 of the Privacy Act 1988) the
provisions of that Act will apply.
The definition sets out four categories of information that fall within the meaning of
"authorised disclosure information". These categories, including indicative examples, are
discussed below.
(a) Information given in confidence in connection with ACMA functions/powers:
Paragraph (a) of the definition of authorised disclosure information covers information
that a person gives in confidence to the ACMA in connection with the performance of
any of the ACMA's functions or the exercise of any of its powers. This is primarily
intended to apply to information that is voluntarily given to the ACMA as part of its day
to day operations.
Examples of the type of information that might be given in confidence to ACMA in
these circumstances include research or reports with relevance to ACMA's functions, or
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information provided by companies developing new communications technology (for
example for the purpose of assessing conformance with Australian licensing standards).
(b) Information obtained through exercise of specified statutory powers:
Paragraph (b) of the definition of authorised disclosure information applies to
information obtained by the ACMA as a result of the exercise of any of its powers under
specified parts of the BSA, Radiocommunications, Telecommunications and TCPSS
Acts, retrospectively. The parts of those Acts specified in paragraph (b) are those that
confer power(s) on the ACMA which could result in the ACMA obtaining information.
Powers under BSA
The parts of the BSA that are specified in paragraph (b) of the definition of authorised
disclosure information are Parts 2, 5, 7, and 13. Therefore, information obtained by the
ACMA as a result of the exercise of a power under one of those parts will be authorised
disclosure information, which would enable an ACMA official to disclose the
information in accordance with proposed new Part 7A of the ACMA Act.
Part 2 of the BSA provides for the categorisation of broadcasting services. Section
21(3), within Part 2, confers power on the ACMA to give a party that has applied to the
ACMA under s. 21(1) (ie for an opinion regarding which category a broadcasting service
falls into) a written notice requesting the applicant to provide additional information to
the ACMA.
Part 5 of the BSA regulates control of commercial broadcasting licences and datacasting
transmitter licences. The part includes limitations on control of licences and
directorships of licensee companies, regulation of newspapers associated with
commercial radio or television licence areas, protection of media diversity, disclosure of
cross media relationships, and requirements for licensees to make certain notifications to
ACMA.
Part 5 of the Act contains numerous provisions pursuant to which the ACMA, in
exercising its functions, may issue a written notice to a party requesting that the party
provide ACMA with information. In many cases this is a request for additional
information in response to an application that the party has made to the ACMA.
By way of example, ACMA has the power to issue such a written notice to a person who
has applied to the ACMA for prior approval of a transaction that would result in an
unacceptable media diversity situation (see s. 61AJ(3)) and to a person who has applied
to the ACMA for an extension of time for compliance with a prior approval notice (see s.
61AK(3). Other examples include powers arising under the following provisions: ss. 61
AMC(3), 61AMD(3), 61AP(3), 61AZD(4), 61AZE(9), 61AZF(8), 67(3), 68(3), 71(4)
and 74(3).
Part 7 of the BSA regulates subscription television broadcasting services, including the
allocation of subscription television broadcasting licences, conditions applicable to those
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licences and the maintenance of minimum levels of eligible drama expenditure. An
example of ACMA's powers under Part 7 that might result in ACMA obtaining
information is the power to make inquiries in order to determine whether an annual
return given to it contains correct information (see s. 103ZC).
Part 13 of the BSA provides for information gathering by the ACMA. This includes
providing for the ACMA to conduct investigations and to hold hearings. Examples of
ACMA's powers under Part 13 that might result in ACMA obtaining information
include the power to:
· consult with such persons, bodies and groups as it thinks fit and conduct
investigations and hold hearings (see s. 168);
· for the purposes of an investigation, give a written notice summoning a person to
provide documents or information to the ACMA or to attend before a delegate to
produce documents or answer questions (see s. 173);
· examine a person on oath or affirmation and to require the person to answer certain
questions (see s. 174);
· require a person to make certain relevant documents in their possession available for
inspection by a member of the ACMA staff (see s. 177); and
· for the purposes of a hearing, summon a person to give evidence or produce
documents (see s. 195).
Powers under Radiocommunications Act
The parts of the Radiocommunications Act that are specified in paragraph (b) of the
definition of "authorised disclosure information" are Chapters 3, 5 and 6. Information
obtained by the ACMA as a result of the exercise of a power under one of those chapters
will be authorised disclosure information subject to the disclosure regime in proposed
new Part 7A of the ACMA Act.
Chapter 3 of the Radiocommunications Act provides for the 3 systems of licences that
apply to radiocommunications and for the registration of licences. It also prohibits
unlicensed radiocommunications except in certain circumstances. An example of
ACMA's powers under Chapter 3 that might result in ACMA obtaining information is
the power to determine in writing procedures to be applied in allocating spectrum
licences (see s. 60).
Chapter 5 of the Radiocommunications Act provides for various matters dealing with the
administration and enforcement of the Act (for example for ACMA to hold public
enquiries, make advisory guidelines and determine charges, for appointment of
inspectors and for people to give the ACMA enforceable undertakings). An example of
ACMA's powers under Chapter 5 that might result in ACMA obtaining information is its
power to accept a range of enforceable undertakings, including undertakings as to what a
person will do, or will refrain from doing, in order to comply with the Act (see s. 298C).
Chapter 6 of the Radiocommunications Act is a collection of miscellaneous provisions.
Section 303, within Chapter 6, provides that the ACMA may conduct research into a
range of matters related to radiocommunications. Information obtained by the ACMA as
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a result of the exercise of its power to conduct research would be authorised disclosure
information.
Powers under Telecommunications Act
The parts of the Telecommunications Act that are specified in paragraph (b) of the
definition of "authorised disclosure information" are Parts 3, 6, 21, 26, 27, as well as
Schedule 3A. Information obtained by the ACMA as a result of the exercise of a power
under one of those Parts will be authorised disclosure information subject to the
disclosure regime in proposed new Part 7A of the ACMA Act.
Part 3 of the Telecommunications Act provides for the regulation of carriers. It provides
inter alia for carrier licences to be granted by the ACMA, for those licences to be subject
to conditions and that the owner of a network unit used to supply carriage services to the
public must hold a carrier licence except in certain circumstances. An example of
ACMA's powers under Part 3 that might result in ACMA obtaining information is its
power to request that an applicant for a carrier licence give the ACMA further
information about the application (see s. 55). Such information might relate to the
applicant's eligibility under the Act (eg legal status, ABN, foreign ownership and control
details, relationship to subsidiaries etc) or technical information about the network unit
they control.
Part 6 of the Telecommunications Act provides a system for the development and
registration of industry codes and industry standards. Examples of ACMA's powers
under Part 6 that might result in ACMA obtaining information include its power
to request that an industry body or association give it a copy of an industry code (see s.
118(1)) and the power to request further information from an applicant applying for a
declaration as to reimbursement of costs incurred in developing an industry code (see s.
136A(3)).
Part 21 of the Telecommunications Act deals with technical regulation, including by
enabling ACMA to make technical standards about equipment and interconnection. An
example of ACMA's powers under Part 21 that might result in ACMA obtaining
information is its power to request further information from a person applying for a
connection permit (see s. 393(1)).
Part 26 of the Telecommunications Act provides for the ACMA to investigate certain
matters relating to telecommunications. Examples of ACMA's powers under Part 26
that might result in ACMA obtaining information is include the power:
· to conduct certain investigations (see s. 510(1)); and
· for the purposes of an investigation, obtain information from such persons, and make
such inquiries, as it sees fit (see s. 512(3)).
Part 27 of the Telecommunications Act provides for the ACMA to obtain certain
information from carriers, service providers and others. Examples of particular powers
under which the ACMA may obtain information include sections 521, pursuant to which
the ACMA may require carriers and service providers to provide certain information and
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documents, and 522, pursuant to which the ACMA may require others to provide such
information and documents.
Powers under TCPSS Act
The specified part of the TCPSS Act for the purpose of paragraph (b) of the definition of
"authorised disclosure information" is Part 2. Information obtained by the ACMA as a
result of the exercise of a power under Part 2 will be authorised disclosure information
subject to the disclosure regime in proposed new Part 7A of the ACMA Act.
Part 2 of the TCPSS Act sets out the universal service regime. An example of the type
of information that might be obtained by the ACMA as a result of the exercise of a
power under Part 2 is the power to inquire into the correctness of an eligible revenue
return (see s. 20E).
(c) Information obtained through exercise of statutory powers (other than described in
paragraph (b)):
Paragraph (c) of the definition of "authorised disclosure information" covers information
obtained by the ACMA as a result of the exercise of powers under a provision of an Act
or legislative instrument that allows the ACMA, or an ACMA official, to require a
person to give information or to produce a document (and is not covered by the various
parts of legislation specified in paragraph (b), discussed above).
This element of the definition is intended to cover future legislative amendments or
legislative instruments that might confer power on the ACMA to require a person to
provide information or documents. It is intended that information obtained by ACMA
through the exercise of such a power should fall within the third category of "authorised
disclosure information" so that it is not necessary to amend the ACMA Act to update the
list of legislation in paragraph (b) each time this occurs.
(d) Information given in confidence by Government authority of foreign country
Paragraph (d) of the definition of "authorised disclosure information" covers information
that was given in confidence to the ACMA by a Government authority of a foreign
country.
The type of information that might be given to ACMA by a Government authority of a
foreign country would include information relevant to international co-operation on
regulatory and law enforcement, such as information on internet content or spam.
Item 3 - After Part 7
Item 3 of Part 1 of Schedule 1 to the Bill would insert a new Part 7A (`Disclosure of
Information') into the ACMA Act. The new Part 7A would provide for the disclosure to
particular parties, by ACMA officials, of authorised disclosure information.
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It is important to note that, to the extent that information to be disclosed under proposed
new Part 7A includes "personal information" as defined in section 6 of the Privacy Act
1988, the provisions of that Act will apply. In particular, it is not intended that the
disclosure provisions included in proposed new Part 7A should override the Information
Privacy Principles contained in section 14 of the Privacy Act 1988.
Clause 59A - Disclosure to Ministers
Subclause 59A(1) of proposed new Part 7A provides that an ACMA official may disclose
authorised disclosure information to the Minister. The reference to `the Minister' means
to the portfolio Minister administering clause 59A of the ACMA Act (see Acts
Interpretation Act 1901 s. 19A). The ACMA Act is currently administered by the
Minister for Communications, Information Technology and the Arts.
Subclause 59A(2) provides that an ACMA official may disclose authorised disclosure
information to a Minister where that information relates to a matter arising under a
provision of an Act that is administered by that Minister. The reference to `a Minister'
means any Minister who relevantly administers the legislation concerned.
Subclause 59A(2) does not limit subclause (1).
Clause 59B - Disclosure to public servants for advising their Ministers
Clause 59B is structured similarly to clause 59A, except that rather than providing for
disclosure of authorised disclosure information to Ministers, it provides for disclosure of
such information to certain public servants for the purposes of advising their Minister(s).
The public servants to whom clause 59B authorises disclosure are:
· for the purposes of advising the Minister for Communications, Information
Technology and the Arts, the Secretary of the Department of Communications,
Information Technology and the Arts, and any APS employee in that Department
authorised in writing by the Secretary; and
· for the purposes of advising a Minister administering a particular provision of an
Act, the Secretary of the Department that is administered by that Minister, and any
APS employee of that Department authorised in writing by the Secretary.
As with clause 59A, subclause (2) does not limit subclause (1).
Clause 59C - Disclosure to Royal Commissions
Subclause 59C(1) of proposed new Part 7A provides that an ACMA official may disclose
authorised disclosure information to a Royal Commission. Subclause (2) provides for the
ACMA Chair to impose written condition in relation to information disclosed under
subclause (1). It is intended that information would be disclosed by ACMA to a Royal
Commission when the information is relevant to the Commission's terms of reference.
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Subclause 59C(3) provides that an instrument made under subclause (2) that imposes
conditions relating to one particular disclosure identified in the instrument is not a
legislative instrument. Subclause 59C(4) provides that, otherwise, an instrument made
under subclause (2) is a legislative instrument. Subclause 59C(3) and (4) are declaratory
of the law and are included to assist readers.
Clause 59D - Disclosure to certain authorities
Clause 59D of proposed new Part 7A provides for the disclosure of authorised disclosure
information by an ACMA official, authorised in writing by the ACMA Chair, to a
number of specified authorities. The information may only be disclosed if the ACMA
Chair is satisfied that the information will enable or assist the authority that is to receive
the information to perform or exercise any of its functions or powers. This is an
important safeguard which is intended to ensure that information will only be disclosed to
authorities that have a genuine interest in receiving it.
The Chair may impose written conditions to be complied with in relation to the disclosure
(subclause 59D(2)). An example of such a condition might be that the information must
not be further disclosed by the authority that receives it. Subclause 59D(3) provides that
a written instrument under subclause 59D(2) that imposes conditions relating to one
particular disclosure identified in the instrument is not a legislative instrument.
Subclause 59D(4) provides that, otherwise, an instrument made under subclause (2) is a
legislative instrument. Subclause 59D(3) and (4) are declaratory of the law and are
included to assist readers.
The authorities specified in clause 59D can be very loosely grouped into the categories of
regulators, public servants and law enforcement agencies. The range of authorities, and
examples of circumstances in which it might be desirable for ACMA to disclose
authorised disclosure information, are discussed below.
Regulators
The group of authorities with a predominantly regulatory function comprise:
· Australian Competition and Consumer Commission (ACCC). The ACMA works
very closely with the ACCC in relation to cross media ownership regulation and
certain information received by ACMA may have significant relevance to the work of
the ACCC. For example, information regarding the corporate structures and business
operations of parties involved in cross media transactions might also be relevant to
the ACCC's role in assessing and approving proposed mergers.
· Australian Prudential Regulation Authority (APRA). See below.
· Australian Securities and Investments Commission (ASIC). As private equity funds
increase their involvement in the media market, and as ownership structures become
more complex in the wake of the Government's recent media reforms, ACMA is
increasingly likely to obtain information of relevance to both ASIC and APRA.
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· Commissioner of Taxation. ACMA is a significant collector of Government revenue
as a result of its role collecting licence fees for a range of broadcasting,
telecommunications and radiocommunications licences.
· Telecommunications Industry Ombudsman (TIO). ACMA works closely and
cooperatively with partners in the self-regulatory framework for telecommunications
services, including the TIO. For example, ACMA and the TIO take a collaborative
approach to systemic complaints regarding the provision of telecommunications
services.
· Australian Bureau of Statistics (ABS). ACMA works with the ABS to develop census
questions.
· Regional Telecommunications Independent Review Committee (RTIRC). The
RTIRC, established by section 158R of the Telecommunications Act, is responsible
for conducting periodic reviews of the adequacy of telecommunications services in
regional, rural and remote parts of Australia. The first review is required before
2008. It is envisaged that much of the research support work for the RTIRC will be
undertaken by ACMA (see s 158ZD of the T(CPSS)A).
· An authority of a foreign country responsible for regulating matters relating to
communications or media. The type of information that might be given to ACMA by
a Government authority of a foreign country would be information relating to
international enforcement and co-operation issues, such as information on internet
content or spam.
Law enforcement agencies
The group of authorities with a predominantly law enforcement role comprise:
· Australian Federal Police (AFP). Pursuant to Schedule 5 of the Broadcasting
Services Act, ACMA works closely with law enforcement agencies in relation to
offensive and prohibited Internet content. As a specific example, any information
ACMA receives in relation to criminal activity on the Internet, such as information
relating to child-pornography, will be of direct interest to the AFP. Certainty
regarding information-sharing arrangements would support the effective operation of
complementary administrative and enforcement measures available to the AFP and
ACMA.
· Australian Security Intelligence Organisation (ASIO). ACMA and ASIO work
together on law enforcement issues, for example on issues relating to telephone
interception.
· Director of Public Prosecutions (DPP). ACMA is required to work closely with the
DPP in relation to prosecution of civil or criminal offences arising from breaches of
the broadcasting and telecommunications regulatory framework. For example,
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ACMA may undertake an investigation into suspected breaches of the broadcasting
regulatory framework and the findings of such an investigation, including any
evidence gathered, would be likely to inform any subsequent prosecution.
· A State or Territory authority responsible for law enforcement. It is desirable that
ACMA be able to share information with State or Territory police, fair trading
departments and child protection agencies. A situation where this might be necessary
would be in relation to prohibited Internet content and illegal online activity.
Public Servants
The public servants specified are those whose duties relate to Commonwealth Acts that
have particular relevance to the functions of ACMA. The Acts are the:
· Foreign Acquisitions and Takeovers Act 1975. ACMA has a role in approving cross-
media transactions and it is possible that such transactions may involve foreign
investment. All direct (that is, non-portfolio) foreign investment and all portfolio
foreign investment over five per cent in the media sector is required to be notified to,
and approved by, the Treasurer. Hence, it is likely that ACMA will be in possession
of information relating to the proposed investment of relevance to decisions made by
the Treasurer.
· Classification (Publications, Films and Computer Games) Act 1995. The regulatory
framework for assessment of broadcasting content operates with reference to this
Act. ACMA's complaints handling and investigations functions require them to
consider whether certain broadcasting content has been assessed correctly and
ACMA's role under Schedule 5 to the Broadcasting Services Act in relation to illegal
or offensive Internet content are carried out with reference to the national
classification scheme.
· Telecommunications (Interception and Access) Act 1979.
An ACMA official authorised in writing by the ACMA Chair will be able to disclose
authorised disclosure information to the Secretary of a Department administered by a
Minister who is also responsible for administering one or more of the above three Acts.
For example, the Foreign Acquisitions and Takeovers Act 1975 is administered by the
Treasurer and so an ACMA official could disclose the information to the Secretary of the
Treasury.
In addition, the information may also be disclosed to certain other APS employees
within those Departments. In relation to the Department of the Minister administering
the first Act, disclosure could be made to an APS employee within that Department
whose duties relate to that Act. The same is true for APS employees within the
Department of the Minister administering the second Act.
In the case of the Department of the Minister administering the third Act (the
Telecommunications (Interception and Access) Act 1979) disclosure could be made to an
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APS employee in that Department whose duties relate to Telecommunication or law
enforcement (ie to a broader category of employees than just employees with duties
relating to the Act).
Clause 59E - Disclosure with consent
Clause 59E provides that an ACMA official may disclose authorised disclosure
information that relates to the affairs of a person if the person has consented to the
disclosure and the disclosure is in accordance with the consent.
Clause 59F - Disclosure of publicly available information
Clause 59F provides that an ACMA official may disclose authorised disclosure
information if that information is already publicly available.
Clause 59G - Disclosure of summaries and statistics
Clause 59G provides that an ACMA official may disclose summaries of, or statistics
derived from, authorised disclosure information, where those summaries or statistics are
not likely to enable the identification of a person.
Clause 59H - Disclosure authorised by regulations
Clause 59H provides for the regulations to authorise an ACMA official to disclose
authorised disclosure information in specified circumstances, and to provide that the
Chair may, in writing, impose conditions to be complied with in relation to disclosure in
those circumstances.
Subclause (2) provides that a written instrument of this type that imposes conditions
relating to one particular disclosure identified in the instrument is not a legislative
instrument. Subclause (3) provides that, otherwise, a written instrument made under
regulations made for the purposes of paragraph 59H(1)(b) is a legislative instrument.
Subclauses 59H(2) and (3) are declaratory of the law and are included to assist readers.
Clause 59J - This Part does not limit disclosure by an ACMA official
Clause 59J makes clear that proposed new Part 7A of the ACMA Act is not intended to
limit the circumstances in which an ACMA official is authorised to disclose information.
Clause 59K - Relationship with Part 13 of the Telecommunications Act 1997
Clause 59K provides that proposed new Part 7A of the ACMA Act does not authorise a
disclosure of information that is prohibited by Part 13 of the Telecommunications Act.
Subsection 299(1) of the Telecommunications Act, in Part 13, prohibits a member of the
staff of the ACMA who has received information or a document as described in that
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subsection (see below) from disclosing or using the information or document except for
the purpose of, or in connection with, the carrying out of the ACMA's functions and
powers.
Information or documents described in subsection 299(1) are those disclosed to a member
of staff of the ACMA as permitted by subsection 284(1), which deals with the disclosure
or use of information or documents to assist the ACMA.
Clause 59L - Delegation of Chair's powers under this Part
Clause 59K provides for the ACMA Chair to delegate, to a member, any of the Chair's
functions and powers under new Part 7A or under regulations made for the purpose of
section 59H. The clause makes clear that in performing or exercising a delegated
function or power, the delegate must comply with any written directions of the Chair.
Item 4 - Application of Part 7A
Item 4 provides that proposed new Part 7A of the ACMA Act will apply to disclosure of
information on or after commencement of the Part regardless of whether the information
was obtained by ACMA before or after that commencement.
Division 2 - Amendment with contingent commencement
Item 5 - Section 3 (after subparagraph (b)(ii) of the definition of authorised
disclosure information)
Item 5 would make a consequential amendment to the definition of "authorised disclosure
information", which is proposed to be inserted by item 2 to the Bill. The commencement
of item 5 is contingent upon the commencement of item 77 of Schedule 1 to the Content
Services Act.
Item 77 of the Content Services Bill, which at the time of writing is before Parliament,
would insert a new Schedule 7 into the BSA. Proposed Schedule 7 would provide, inter
alia, for people to make to complaints to the ACMA about prohibited content or potential
prohibited content in relation to certain services, and for ACMA to take action to deal
with such content.
If Schedule 7 to the BSA commences, item 5 of the Bill would amend paragraph (b) of
the definition of "authorised disclosure information" with the effect that the definition
would include information obtained by the ACMA as a result of the exercise of any
powers conferred on it by Schedule 7 to the BSA.
Part 2 - Datacasting
Division 1 - Varying conditions of datacasting transmitter licences
18
Division 1 of Part 2 to the Bill would amend the Radiocommunications Act to provide
ACMA with greater flexibility in carrying out its spectrum management functions.
Section 9 of the ACMA Act sets out ACMA's spectrum management functions, which
include managing the radiofrequency spectrum in accordance with the
Radiocommunications Act.
Specifically, the proposed amendments would enable ACMA to vary the spectrum
specified in a datacasting transmitter licence, including a channel A or channel B
datacasting transmitter licence after such a licence has been issued. A datacasting
transmitter licence is a particular type of apparatus licence which authorises the licensee,
and in some circumstances other people authorised by the licensee, to operate specified
communications transmitters. Channel A and channel B datacasting transmitter licences
are particular types of datacasting transmitter licence.
The Broadcasting Legislation Amendment (Digital Television) Act 2006 (Digital
Television Act) amended the Radiocommunications Act to provide for the allocation of
two unallocated channels of television broadcasting spectrum known as `Channel A' and
`Channel B'. The Digital Television Act also provided for the specification by ACMA of
two corresponding types of datacasting transmitter licences, channel A and channel B
datacasting transmitter licences (see sections 98A and 98B of the Radiocommunications
Act).
Item 6 - Paragraph 111(1)(d)
Item 7 - At the end of paragraph 111(1)(d)
Items 6 and 7 would amend the same paragraph of the Radiocommunications Act and so
are considered together.
Item 6 would amend paragraph 111(1)(d) of the Radiocommunications Act to omit the
phrase "or a datacasting transmitter licence", and item 7 would amend the paragraph to
insert, at the end, the phrase "or 109A(1)(d)".
Section 111 of the Radiocommunications Act currently provides for ACMA, by notice in
writing, to make certain changes to licence conditions applicable to apparatus licences
(including to a datacasting transmitter licence). Under section 111, the ACMA may:
· impose one or more further conditions to which the licence is subject;
· revoke or vary such a further condition imposed;
· revoke or vary any condition specified under paragraphs 107(1)(g), 108A(1)(f),
109(1)(f) or 109A(1)(k), which provide that a range of different licences (including a
datacasting transmitter licence - 109A(1)(k)) are subject to conditions which include
"such other conditions as are specified in the licence"; and
· if the licence is a transmitter licence, with the exception of certain specified licences
including datacasting transmitter licences, vary a condition of the kind referred to in
paragraph 108(2)(a)(b) or (c) (see paragraph 111(1)(d)).
19
Section 109A of the Radiocommunications Act sets out a range of conditions applicable
to datacasting transmitter licences, including that the licensee "must not operate, or
permit operation of, the transmitter except on a frequency or frequencies, or on a
frequency channel, and at a constancy, specified in the licence" (109A(1)(d)). ACMA's
powers under s. 111 to make changes to certain licence conditions do not extend to allow
ACMA to revoke or vary a licence condition specified under s. 109A(1)(d). Therefore,
while ACMA can issue a datacasting transmitter licence that specifies the frequency or
frequency channel in relation to which that licence may be used, it cannot at a later stage
vary or revoke such a licence condition.
The effect of items 6 and 7 of Part 2 of Schedule 1 to the Bill would be to enable ACMA
to vary spectrum frequencies specified in a datacasting transmitter licence. The items
would achieve this by:
· removing the reference in paragraph 111(1)(d) to a datacasting transmitter licence
(with the effect that such licences would no longer be excluded from the scope of
ACMA's power to vary licence conditions under that paragraph); and
· inserting a reference to 109A(1)(d) into the list of kinds of licence conditions that
may be varied by ACMA under paragraph 111(1)(d).
The power to vary frequencies on which licences operate is already available to the
ACMA in relation to other transmitter licences aside from datacasting transmitter
licences. It is intended that the proposed amendments would create a consistent
approach and enable ACMA to more effectively address technical considerations. For
example, it is intended to assist ACMA to avoid possible interference with other
services and to facilitate the potential provision of mobile television services.
Division 2 - Datacasting charge
Item 8 - Paragraph 6(1)(a)
Item 8 would amend paragraph 6(a) of the Datacasting Charge Act to insert the phrase
"other than one that is a channel B datacasting transmitter licence for the purposes of the
Radiocommunications Act 1992,".
Section 6 of the Datacasting Charge Act provides for a charge to be imposed in relation
to provision of datacasting services under a transmitter licence held by the holder of a
commercial television broadcasting licence.
A channel B datacasting licensee that holds a commercial television broadcasting licence
would be liable to pay the charge where it provided a service under the authority of a
BSA datacasting licence (ie under a datacasting licence under Schedule 6 to the BSA).
The Government has decided that channel B datacasting licences should not be subject to
an annual licence fee. Accordingly, the effect of the amendment made by item 8 is that
the charge would continue to apply where a commercial television broadcasting licensee
provided datacasting services under the authority of a datacasting licence using the
20
licensee's digital television broadcasting spectrum, but not where the licensee provided
such services on a channel B datacasting transmitter licence.
Item 9 - Application of amendment
Item 9 provides that the amendment to the Datacasting Charge Act made by Division 2 of
Part 2 to Schedule 2 to the Bill applies to the financial year starting on 1 July 2007 and
later financial years.
So far as this application provision might involve retrospectivity, such retrospectivity
would be for the benefit of the affected taxpayer.
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