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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TELECOMMUNICATIONS LEGISLATION AMENDMENT
(REGULAR REVIEWS AND OTHER MEASURES) BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications, Information
Technology and the Arts, Senator the Hon. Helen Coonan)
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TELECOMMUNICATIONS LEGISLATION
AMENDMENT (REGULAR REVIEWS AND
OTHER MEASURES) BILL 2005
OUTLINE
The Telecommunications Legislation Amendment (Regular Reviews and Other
Measures) Bill 2005 (the Bill) responds to recommendations of the Regional
Telecommunications Inquiry Report of 2002 (the Estens Report) relating to:
· the need for Telstra to maintain a local presence in regional, rural and remote parts
of Australia; and
· regular independent reviews into the adequacy of telecommunications in regional,
rural and remote parts of Australia.
Item 1 of Schedule 1 to the Bill amends the Telecommunications Act 1997 to clarify
that any licence condition made by the Minister for Communications, Information
Technology and the Arts requiring Telstra to maintain a local presence in regional,
rural or remote parts of Australia may empower the Minister or the Australian
Communications Authority (ACA) to make decisions of an administrative character.
Such a licence condition could, for example, require the Minister or the ACA to
approve a draft local presence plan setting out how Telstra will fulfil its obligations to
maintain a local presence in regional, rural and remote parts of Australia. It is
envisaged that the licence condition will provide a high degree of certainty and
reassurance for:
· regional, rural and remote communitiesthat an effective Telstra local presence
will be maintained; and
· Telstrathat it will maintain the right to manage its regional operations
autonomously and in its commercial interests.
Items 2 to 6 of Schedule 1 will insert a new Part 9B of the Telecommunications
(Consumer Protection and Service Standards) Act 1999 relating to regular
independent reviews of regional telecommunications, and insert relevant definitions
in that Act. The reviews will be undertaken at least every 5 years by an independent
expert committee appointed by the Minister for Communications, Information
Technology and the Arts known as the Regional Telecommunications Independent
Review Committee (RTIRC). The committee will be required to report to the
Minister on its findings and recommendations and this report will be required to be
tabled in the Parliament.
Item 7 of Schedule 1 will make a consequential amendment to subsection 8BUA(1) of
the Telstra Corporation Act 1991 to ensure that at least 2 directors of Telstra will be
required to have knowledge of, or experience in, the communication needs not only of
regional areas but also of rural or remote areas of Australia.
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If the Bill, when enacted, receives the Royal Assent after the establishment of the
Australian Communications and Media Authority (the ACMA) as a result of the
proposed merger of the ACA and the Australian Broadcasting Authority (ABA),
items 8 to 11 of Schedule 1 will make consequential amendments to provisions
inserted by the Bill that refer to the ACA. These references will be changed from
`ACA' or `ACA's' to `ACMA' or `ACMA's'. However, if the Bill, when enacted,
receives the Royal Assent before the establishment of the ACMA, items 8 to 11 of
Schedule 1 will not commence at all. In this case, the references to `ACA' and
`ACA's' in provisions inserted by the Bill will be changed to `ACMA' and
`ACMA's' by Schedule 2 to the proposed Australian Communications and Media
Authority (Consequential and Transitional Provisions) Act 2005.
FINANCIAL IMPACT STATEMENT
The Bill will not have any significant impact on Commonwealth expenditure or
revenue.
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides that the Bill, when enacted, may be cited as the
Telecommunications Legislation Amendment (Regular Reviews and Other Measures)
Act 2005.
Clause 2 - Commencement
Clause 2 provides for various provisions of the Bill, when enacted, to commence on
specified days or times.
Clauses 1 to 3 of the Bill will commence on Royal Assent (see item 1 of the table in
subclause 2(1)). Part 1 of Schedule 1 to the Bill will also commence on Royal Assent
(see item 2 in the table). Part 1 of Schedule 1 will:
· amend the Telecommunications Act 1997 (the Telecommunications Act) to
clarify that if the Minister for Communications, Information Technology and the
Arts makes a licence condition requiring Telstra to maintain a local presence in
regional, rural and remote parts of Australia, the condition may empower the
Minister or the Australian Communications Authority (ACA) to make decisions
of an administrative character (for example, to require the Minister or the ACA to
approve a draft local presence plan setting out how Telstra will fulfil its
obligations to maintain a local presence in regional, rural and remote parts of
Australia); and
· amend the Telecommunications (Consumer Protection and Service Standards)
Act 1999 (the Consumer Protection Act) to provide for regular independent
reviews of the adequacy of telecommunications services in regional, rural or
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remote parts of Australia; and
· make a consequential amendment to the Telstra Corporation Act 1991 (the
Telstra Corporation Act) to ensure that at least 2 directors of Telstra will be
required to have knowledge of, or experience in, the communication needs not
only of regional areas but also of rural or remote areas of Australia.
If the Bill, when enacted, receives the Royal Assent after the establishment of the
Australian Communications and Media Authority (the ACMA) as a result of the
proposed merger of the ACA and the Australian Broadcasting Authority, Part 2 of
Schedule 1 to the Bill will make consequential amendments to provisions inserted by
the Bill that refer to the ACA. These references will be changed from `ACA' or
`ACA's' to `ACMA' or `ACMA's'. In this case, Part 2 of Schedule 1 to the Bill will
commence immediately after the commencement of Part 1 of Schedule 1 to the Bill.
However, if the Bill, when enacted, receives the Royal Assent before the
establishment of the ACMA, Part 2 of Schedule 1 will not commence at all. In this
case, the references to `ACA' and `ACA's' in provisions inserted by the Bill will be
changed to `ACMA' and `ACMA's' by Schedule 2 to the proposed Australian
Communications and Media Authority (Consequential and Transitional Provisions)
Act 2005.
Clause 3 - Schedule(s)
Clause 3 provides for the making of the amendments and repeals to the Acts specified
in the Schedules in accordance with the items in the Schedules and for the other items
in the Schedules to have effect according to their terms.
Schedule 1--Amendments
Part 1 - Amendments commencing on Royal Assent
Telecommunications Act 1997
Item 1 - Insertion of section 66 of the Telecommunications Act
Under section 63 of the Telecommunications Act, the Minister for Communications,
Information Technology and the Arts may, by written instrument, declare that
Telstra's carrier licence is subject to such conditions as are specified in the
instrument. A copy of any such instrument must be published in the Commonwealth
of Australia Gazette and is a legislative instrument for the purposes of the Legislative
Instruments Act 2003. It is therefore required to be tabled in both Houses of
Parliament and is subject to Parliamentary disallowance.
Item 1 of Schedule 1 to the Bill clarifies that any licence condition made by the
Minister for Communications, Information Technology and the Arts under section 63
requiring Telstra to maintain a local presence in regional, rural or remote parts of
Australia may empower the Minister or the ACA to make decisions of an
administrative character. Such a licence condition could, for example, require the
Minister or the ACA to approve a draft local presence plan setting out how Telstra
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will fulfil its obligations to maintain a local presence in regional, rural and remote
parts of Australia. It is envisaged that the licence condition will provide a high degree
of certainty and reassurance for:
· regional, rural and remote communitiesthat an effective Telstra local presence
will be maintained; and
· Telstrathat it will maintain the right to manage its regional operations
autonomously and in its commercial interests.
The local presence plan requirements are aimed at ensuring the continuation and
further development of Telstra endeavours in regional, rural and remote Australia
through promoting:
· decentralised management and decision-making within Telstra;
· representation for regional and rural interests within Telstra's executive
management structure;
· effective direct customer servicing and support for regional Australia;
· effective concentration and application of resources in regional, rural and
remote Australia, including additional specialist staff who can address specific
needs of rural customers;
· effective coordination of effort in all service areas, and focus of responsibility
for managing projects and service tasks;
· effective information to regional, rural and remote customers; and
· support through Telstra activities for broader regional community
development.
The reference to `Australia' in proposed paragraph 66(1)(b) will not include the
`adjacent areas' of the States, the Territory of Christmas Island and the Territory of
Cocos (Keeling) Islands where the exploration of the continental shelf of Australia
takes place or resources of the continental shelf are exploited eg. on an oil rig in the
continental shelf (proposed subsection 66(3)).
The reference to `Australia' in proposed paragraph 66(1)(b) will also not include the
eligible Territories as defined in section 7 of the Telecommunications Act (proposed
subsection 66(4)). This means that any licence condition requiring Telstra to
maintain a local presence in regional, rural and remote parts of Australia will not
require Telstra to maintain a local presence in the Territory of Christmas Island, the
Territory of Cocos (Keeling) Islands or on any other external Territory prescribed for
the purposes of section 10 of the Telecommunications Act. (No other external
Territory has been prescribed for the purposes of section 10.)
Telecommunications (Consumer Protection and Service Standards) Act 1999
Items 2 to 5 - Insertion of definitions of `RTIRC', `RTIRC Chair', `RTIRC
member' and `Telstra subsidiary' in subsection 5(2) of the Consumer Protection
Act
Items 2 to 5 insert definitions in subsection 5(2) of the Consumer Protection Act for
the purposes of proposed Part 9B of that Act (see item 6). This new Part will provide
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for regular independent reviews of regional telecommunications by the Regional
Telecommunications Independent Review Committee (RTIRC).
The term `Telstra subsidiary' is used in proposed subsection 158T(4) of the Consumer
Protection Act and will have the same meaning as in the Telstra Corporation Act.
The Telstra Corporation Act provides that `Telstra subsidiary' means a body
corporate that is a subsidiary of Telstra. Section 5 of the Telstra Corporation Act
provides that the question of whether a body corporate is a subsidiary of another body
corporate is to be determined in the same manner as that question is determined under
the Corporations Act 2001 (see Division 6 of Part 1.2 of the Corporations Act).
Item 6 - Insertion of new Part 9B of the Consumer Protection Act - Independent
reviews of regional telecommunications
Division 1--Independent reviews of regional telecommunications
Proposed section 158P of the Consumer Protection Act - Reviews of regional
telecommunications to be conducted by the RTIRC
Proposed subsection 158P(1) of the Consumer Protection Act requires that the
proposed Regional Telecommunications Independent Review Committee (RTIRC)
will be required to review the adequacy of telecommunications services in regional,
rural and remote parts of Australia.
The term `telecommunications services' is defined in proposed subsection 158P(6) to
include carriage services (as defined by the Telecommunications Act) and services
provided by means of carriage services. A `carriage service' is defined in the
Telecommunications Act to mean a service for carrying communications by means of
guided or unguided electromagnetic energy. The reference to communications by
means of `guided electromagnetic energy' includes communication by means of a
wire, cable, waveguide or other physical medium used, or for use, as a continuous
artificial guide for or in connection with the carrying of the communication. The
reference to communications by means of `unguided electromagnetic energy' includes
communications by means of radiocommunication.
The term `Australia' is defined in proposed subsection 158P(6) to have the same
meaning as in proposed paragraph 66(1)(b) of the Telecommunications Act (see item
1 of Schedule 1 to the Bill). The references to `Australia' in proposed section 158P
will therefore not include the Territory of Christmas Island, the Territory of Cocos
(Keeling) Islands or the `adjacent areas' of the States, the Territory of Christmas
Island and the Territory of Cocos (Keeling) Islands where the exploration of the
continental shelf of Australia takes place or resources of the continental shelf are
exploited eg. on an oil rig in the continental shelf.
Proposed subsection 158P(2) provides that in determining the adequacy of such
services, the RTIRC will be required to have regard to whether people in regional,
rural and remote parts of Australia have equitable access to telecommunications that
are significant to people in those parts of Australia and are currently available in one
or more urban parts of Australia. This will ensure that there is an independent
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assessment of the state of important telecommunications services, including the
relative availability and affordability of such services and the demand for them.
Proposed subsection 158P(3) provides that the first review will be required to be
completed within 5 years after the Bill, when enacted, receives Royal Assent.
Subsequent reviews will be required to be completed within 5 years after the
completion of the previous review. For this purpose, a review will be taken to be
completed when the RTIRC gives the Minister its report of its review under proposed
section 158Q.
The RTIRC will be required to ensure that in conducting its review there is provision
for public consultation, including consultation with people in regional, rural and
remote parts of Australia (proposed subsection 158Q(4)). This will ensure that there
is an opportunity for regional and rural consumers and communities to express their
views on their telecommunications needs and priorities.
The RTIRC will also be required to ensure that in conducting its review the RTIRC
has regard to any policies of the Commonwealth government notified to the RTIRC
by the Minister for Communications, Information Technology and the Arts (proposed
paragraph 158P(5)(a)). For example, the Minister may notify the RTIRC of the need,
in conducting its review, to have regard to the existing legal obligations of carriers,
including the obligation to comply with interception capability obligations under Parts
13 to 15 of the Telecommunications Act 1997.
The RTIRC will also be able to have regard to other relevant matters (proposed
paragraph 158P(5)(b)).
Proposed section 158Q of the Consumer Protection Act - Report of review
The RTIRC will be required to prepare a report of its review under proposed section
158P and give it to the Minister (proposed subsection 158Q(1)).
The Minister will be required to arrange for copies of the report to the tabled in each
House of Parliament within 15 sitting days of that House after receiving the report
(proposed subsection 158Q(2)).
The RTIRC's report may set out recommendations to the Commonwealth
Government (proposed subsection 158Q(3)). This will ensure that independent
advice is provided to the Commonwealth on whether action should be taken to
improve equitable access to telecommunications services in regional, rural and remote
areas of Australia.
However, in formulating a recommendation that the Commonwealth should take
particular action, the RTIRC will be required to assess the costs and benefits of that
action (proposed subsection 158Q(4)). This will ensure that the RTIRC undertakes a
cost/benefit analysis of any proposed government intervention in relation to
improving access in particular areas before making a recommendation to the
Commonwealth Government.
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The RTIRC will also be able to take other matters into account in formulating a
recommendation (proposed subsection 158Q(5)).
If the RTIRC's report contains recommendations that the Commonwealth should take
particular action then, as soon as practicable after receiving the report, the Minister
will be required to arrange the preparation of a statement setting out the
Commonwealth's response to the recommendations (proposed paragraph 158Q(6)(a)).
It is intended that the statement would identify the most appropriate policy
mechanisms to achieve the recommended outcomes, funding and timeframe.
In addition, if the RTIRC's report contains recommendations that the Commonwealth
should take particular action, the Minister will be required to arrange for copies of the
statement setting out the Commonwealth's response to the recommendations to be
tabled in each House of Parliament within 6 months after receiving the report
(proposed paragraph 158Q(6)(b)).
This will ensure that the Commonwealth responds to recommendations contained in a
report of the RTIRC and justifies its approach to regional, rural and remote
communities.
Division 2--Regional Telecommunications Independent Review
Committee (RTIRC)
Proposed section 158R of the Consumer Protection Act - Establishment of the
RTIRC
Proposed section 158R establishes the expert committee to be known as the Regional
Telecommunications Independent Review Committee.
Proposed section 158S of the Consumer Protection Act - Functions of the
RTIRC
Proposed section 158S provides that the RTIRC will have the functions that are
conferred on it by proposed Part 9B of the Consumer Protection Act.
Proposed section 158T of the Consumer Protection Act - Membership of the
RTIRC
Proposed section 158T deals with the membership of the RTIRC.
The RTIRC will consist of a Chair and at least 2 other members (proposed subsection
158T(1)).
The RTIRC Chair and members will be required to have knowledge of, or experience
in matters affecting regional, rural and remote parts of Australia or
telecommunications (proposed subsection 158T(2)).
The RTIRC Chair and a majority of other RTIRC members will be required to be
independent from Telstra, the Commonwealth and Commonwealth authorities (such
as the ACA) (proposed subsections 158T(3) and (4)).
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The term `Australia' is defined in proposed subsection 158T(5) to have the same
meaning as in proposed paragraph 66(1)(b) of the Telecommunications Act (see item
1 of Schedule 1 to the Bill). The references to `Australia' in proposed section 158T
will therefore not include the Territory of Christmas Island, the Territory of Cocos
(Keeling) Islands or the `adjacent areas' of the States, the Territory of Christmas
Island and the Territory of Cocos (Keeling) Islands where the exploration of the
continental shelf of Australia takes place or resources of the continental shelf are
exploited eg. on an oil rig in the continental shelf.
Proposed section 158U of the Consumer Protection Act - Appointment of
RTIRC members
The RTIRC members are to be appointed by the Minister for Communications,
Information Technology and the Arts by written instrument (proposed subsection
158U(1)).
An RTIRC member will hold office for a period of up to 5 years specified in the
instrument of appointment (proposed subsection 158U(2)).
An RTIRC member will hold office on a part-time basis (proposed subsection
158U(3)).
Proposed section 158V of the Consumer Protection Act - Acting
appointmentsRTIRC Chair
The Minister for Communications, Information Technology and the Arts will be able
to appoint an RTIRC member to act as the RTIRC Chair during a vacancy in the
office of the Chair or during any period, or during all periods, when the Chair is
absent from duty or from Australia or is, for any reason, unable to perform the duties
of the office (proposed subsection 158V(1)).
A defect or irregularity in connection with a person's appointment to act under
proposed section 158V will not invalidate anything done by the person when
purporting to act under the appointment. Nor will certain other technicalities viz. the
occasion for the appointment not having arisen, the appointment ceasing to have
effect and the occasion for the person to act not having arisen or having ceased
(proposed subsection 158V(2)).
Section 33A of the Acts Interpretation Act 1901 contains further provisions dealing
with acting appointments which are relevant to acting appointments made under
proposed section 158V. The effect of these provisions is that:
(a) an acting appointment may be expressed to have effect only in the
circumstances specified in the instrument of appointment;
(b) the appointer may determine the terms and conditions of the appointment,
including remuneration and allowances and terminate the appointment at any
time;
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(c) where the appointment is to act in a vacant office, the appointee must not
continue to act in the office for more than 12 months;
(d) where the appointee is acting in an office other than a vacant office and the
office becomes vacant while the appointee is acting then, unless his or her
instrument of appointment provides otherwise, the appointee may continue to
act until the appointer otherwise directs, the vacancy is filled or a period of 12
months from the day the vacancy ends, whichever happens first;
(e) the appointment ceases to have effect if the appointee resigns in writing
delivered to the appointer;
(f) while the appointee is acting in the office, he or she has and may exercise all
the powers, and is to perform all the functions and duties, of the holder of the
office and the Consumer Protection Act and any other legislation will apply in
relation to the appointee as if the appointee were the holder of the office.
Proposed section 158W of the Consumer Protection Act - Procedures
Proposed section 158W deals with how the procedures of the RTIRC may be
prescribed.
Regulations made under the Consumer Protection Act will be able to prescribe the
procedure to be followed at or in relation to meetings of the RTIRC, including matters
relating to the convening of meetings, the required quorum at meetings, the member
who is to preside in the absence of the Chair and how questions arising at meetings
are to be decided (proposed subsection 158W(1)).
Resolutions will be able to be passed without the need for a meeting if RTIRC
members agree and determine the method by which members are to indicate
agreement with resolutions. If this occurs, a resolution proposed outside of a meeting
will be deemed to have been passed at a meeting if a majority of RTIRC members
agree with the resolution and all members were informed of the resolution, or
reasonable efforts were made to inform all members of it (proposed subsections
158W(2) and (3)).
Proposed section 158X of the Consumer Protection Act - Disclosure of interests
An RTIRC member who has a material personal interest in a matter being considered
by the RTIRC will be required to disclose the nature of the interest at an RTIRC
meeting as soon as possible after the member becomes aware of the interest (proposed
subsection 158X(1)).
The member's disclosure is to be recorded in the minutes of the meeting. Unless the
Minister or the RTIRC determines otherwise (in the absence of the member making
the disclosure), the member making the disclosure of a matter will not be able to be
present during any deliberation by the RTIRC about the matter or to take part in any
decision of the RTIRC relating to that matter (proposed subsections 158X(2) and (3)).
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Proposed section 158Y of the Consumer Protection Act - Remuneration and
allowances
An RTIRC member will be paid the remuneration determined by the Remuneration
Tribunal. If no determination of that remuneration is in operation, the member is to
be paid such remuneration as is prescribed by regulations under the Consumer
Protection Act (proposed subsection 158Y(1)).
An RTIRC member is to be paid such allowances as are prescribed by regulations
under the Consumer Protection Act (proposed subsection 158Y(2)).
Proposed section 158Y has effect subject to the Remuneration Tribunal Act 1973
which provides for the Remuneration Tribunal to conduct inquiries and make
determinations on the remuneration of certain office holders (proposed subsection
158Y(3)).
Proposed section 158Z of the Consumer Protection Act - Leave of absence
The Minister will be able to grant leave of absence (eg. recreation leave) to the
RTIRC Chair on such terms and conditions as to remuneration or otherwise as the
Minister determines (proposed subsection 158Z(1)).
The RTIRC Chair will be able to grant leave of absence to an RTIRC member on
such terms and conditions as to remuneration or otherwise as the RTIRC Chair
determines (proposed subsection 158Z(2)).
Proposed section 158ZA of the Consumer Protection Act - Resignation
Proposed section 158ZA provides that an RTIRC member will be able to resign by
way of a signed letter of resignation to the Minister.
Proposed section 158ZB of the Consumer Protection Act - Termination of
appointment
The Minister will be able to terminate the appointment of an RTIRC member for
misbehaviour or physical or mental incapacity (proposed subsection 158ZB(1)).
The Minister will also be able to terminate the appointment of an RTIRC member if:
(a) the member becomes bankrupt, applies for relief from bankruptcy, enters into
an arrangement with creditors regarding the payment of his or her debts or
assigns all or part of his or her remuneration for the benefit of creditors; or
(b) the member is absent, except on leave of absence granted in accordance with
proposed section 158Z, for 3 consecutive RTIRC meetings; or
(c) a member fails, without reasonable excuse, to comply with proposed section
158X, which requires the disclosure of material personal interests at an
RTIRC meeting (proposed subsection 158ZB(2)).
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Proposed section 158ZC of the Consumer Protection Act - Other terms and
conditions
Proposed section 158ZC provides that the Minister will be able to determine
additional terms and conditions in relation to an RTIRC member.
Proposed section 158ZD of the Consumer Protection Act - Assistance to RTIRC
The ACA, ACCC and/or the Department of Communications, Information
Technology and the Arts will be able to assist the RTIRC in the performance of its
functions (proposed subsection 158ZD(1)).
The assistance would include, but not be limited to, the provision of advice or
information (eg. information and advice available from the ACA under its regional
data collection and monitoring role) and the making available of resources and
facilities such as secretariat services and clerical assistance (proposed subsection
158ZD(2)).
Proposed subsection 158ZD(3) ensures that the ACA will be able to conduct an
investigation under Part 26 of the Telecommunications Act or exercise its
information-gathering powers under Part 27 of that Act in connection with providing
assistance to the RTIRC under proposed subsection 158ZD(1).
Item 7 - Amendment of subsection 8BUA(1) of the Telstra Corporation Act
Subsection 8BUA(1) of the Telstra Corporation Act requires Telstra to ensure that at
least 2 of its directors have knowledge of, or experience in, the communications needs
of regional areas of Australia.
Item 7 replaces the reference in subsection 8BUA(1) to `regional areas' with a
reference to `regional, rural or remote areas' for consistency with the requirements in
proposed Part 9B of the Consumer Protection Act dealing with independent reviews
of telecommunications services in regional, rural and remote parts of Australia.
Part 2 - Amendments consequential on the establishment of the
Australian Communications and Media Authority (ACMA)
Part 2 of Schedule 1 to the Bill (items 8 to 11 of Schedule 1) makes amendments to
the proposed provisions of the Telecommunications Act and the Consumer Protection
Act inserted by the Bill that are consequential on the establishment of the ACMA as a
result of the proposed merger of the ACA and the ABA.
If the Bill, when enacted, receives the Royal Assent after the establishment of the
ACMA, items 8 to 11 of Schedule 1 will make consequential amendments to
provisions inserted by the Bill that refer to the ACA. These references will be
changed from `ACA' or `ACA's' to `ACMA' or `ACMA's'.
However, if the Bill, when enacted, receives the Royal Assent before the
establishment of the ACMA, items 8 to 11 of Schedule 1 will not commence at all. In
this case, the references to `ACA' and `ACA's' in provisions inserted by the Bill will
13
be changed to `ACMA' and `ACMA's' by Schedule 2 to the proposed Australian
Communications and Media Authority (Consequential and Transitional Provisions)
Act 2005.
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