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1997
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
THE
SENATE
TRADE PRACTICES
AMENDMENT (TELECOMMUNICATIONS) BILL 1996
SUPPLEMENTARY
EXPLANATORY MEMORANDUM
Amendments to be moved on behalf
of the Government
(Circulated by
authority of Senator the Hon. Richard Alston, Minister for Communications and
the Arts)
80916 Cat. No. 96n 7357 1 ISBN 0644
497602
TRADE PRACTICES AMENDMENT (TELECOMMUNICATIONS) BILL
1996
OUTLINE
The proposed amendments will:
• include notes to the various
offences to be inserted in the Trade Practices Act 1974 to draw the
reader’s attention to relevant provisions of the Crimes Act 1914
which have a bearing on the penalties for those offences (Amendments
(1)–(3), (5)–(9) and (11) and (12));
- giving effect to the
Government’s response to recommendation 9.7 of the Report by the Senate
Environment, Recreation, Communications and the Arts Legislation Committee on
the Telecommunications Bills Package 1996.
• make the definition
of ‘content service’ in proposed section 152AC of the Trade
Practices Act 1974 consistent with the definition of ‘carriage
service’ in that provision (Amendment (4)); and
- giving effect to
the Government’s response to recommendation 5.1 of the Report by the
Senate Environment, Recreation, Communications and the Arts Legislation
Committee on the Telecommunications Bills Package 1996.
• reduce
the maximum penalty attaching to proposed section 152DI from 5 years to 12
months imprisonment for the purpose of maintaining consistency with a similar
offence in the Trade Practices Act 1974 (Amendment (10)).
FINANCIAL IMPACT
The proposed amendments are not expected to have any financial impact on
Commonwealth expenditure or revenue.
NOTES ON AMENDMENTS
AMENDMENT (1)
Under proposed section 151AS of the Trade Practices Act 1974, a person
may apply to the ACCC for an order exempting specified conduct of the person
from the scope of proposed section 151AJ (which deals with anti-competitive
conduct). Under proposed section 151AU, the ACCC will be able to request an
applicant for an exemption order to give the ACCC further information about the
application.
As a result of proposed section 151BI, a person who, in the
person’s application for an exemption order or in purported compliance
with a request under proposed section 151AU or otherwise in connection with an
application for an exemption order, intentionally or recklessly gives the ACCC
false or materially misleading information, or who omits any matter or thing
without which the information is materially misleading, will be guilty of an
offence punishable on conviction by imprisonment for a term of up to 6 months or
by a pecuniary penalty of up to 30 penalty units, or both or, in the case of a
body corporate, by a pecuniary penalty of up to 150 penalty units – a
penalty unit is currently worth $100 (proposed section 151BI and sections 4AA
and 4B of the Crimes Act 1914).
Amendment (1) will insert a Note
at the end of proposed section 151BI to draw the reader’s attention to
relevant provisions of the Crimes Act discussed above.
AMENDMENT (2)
As a result of proposed section 151BS of the Trade Practices Act
1974, it will be an offence for a carrier or carriage service provider
intentionally or recklessly to give the ACCC false or materially misleading
tariff information (including information that is materially misleading because
of the intentional or reckless omission of any matter or thing) in purported
compliance with a tariff filing direction. In the case of an individual, the
offence will be punishable on conviction by imprisonment for up to 6 months, or
by a pecuniary penalty of up to 30 penalty units, or both – a penalty unit
is currently worth $100. In the case of a body corporate, the offence will be
punishable on conviction by a pecuniary penalty of up to 150 penalty units
(proposed section 151BS and sections 4AA and 4B of the Crimes Act
1914).
Amendment (2) will insert a Note at the end of proposed
section 151BS to draw the reader’s attention to the relevant provisions of
the Crimes Act discussed above.
AMENDMENT (3)
As a result of proposed section 151BV of the Trade Practices Act
1974, a carrier or carriage service provider who intentionally or recklessly
keeps incorrect records in purported compliance with a requirement of the
record-keeping rules will be guilty of an offence punishable on conviction, in
the case of an individual, by imprisonment for a term of up to 6 months or by a
pecuniary penalty of up to 30 penalty units, or both or, in the case of a body
corporate, by a pecuniary penalty of up to 150 penalty units – a penalty
unit is currently worth $100 (proposed section 151BV and sections 4AA and 4B of
the Crimes Act 1914).
Amendment (3) will insert a Note at the end
of proposed section 151BV to draw the reader’s attention to the relevant
provisions of the Crimes Act discussed above.
AMENDMENT (4)
Proposed section 152AC defines relevant terms used in new Part XIC which
sets out a new telecommunications access regime. ‘Carriage service’
is defined to include a proposed carriage service. By contrast, the definition
of ‘content service’ does not include a reference to a proposed
content service.
For consistency with the definition of ‘carriage
service’ in proposed section 152AC, Amendment (4) amends the definition of
‘content service’ in that provision so that it includes a proposed
content service.
AMENDMENT (5)
Proposed section 152DC of the Trade Practices Act 1974 sets out
particular powers of the ACCC for the purpose of arbitrating an access dispute.
The ACCC may, under proposed section 152DC(1), give a direction during the
course of, or for the purposes of, an arbitration hearing. The ACCC may also
give all such directions or do all things necessary for the speedy hearing and
determination of the dispute. Proposed section 152DC(3) enables the ACCC to
give an order to a person not to divulge or communicate, without the
ACCC’s permission, specified information which was given to the person
during the course of an arbitration.
Contravention of an ACCC direction
or order will be an offence punishable on conviction, in the case of an
individual, by imprisonment for up to 6 months and/or a fine of up to 30 penalty
units (a penalty unit is currently worth $100) or, in the case of a body
corporate, by a fine of up to 150 penalty units (proposed section 152DC and
sections 4AA and 4B of the Crimes Act 1914).
Amendment (5) will
insert a Note at the end of proposed section 152DC to draw the reader’s
attention to the relevant provisions of the Crimes Act discussed
above.
AMENDMENT (6)
Proposed section 152DE of the Trade Practices Act 1974 provides
that a witness summonsed to appear before an ACCC arbitration of an access
dispute must attend as required by the summons unless excused or released by an
ACCC member unless the witness has a reasonable excuse for not doing
so.
Contravention of this provision will be an offence punishable on
conviction by imprisonment for up to 6 months and/or a fine of up to 30 penalty
units (a penalty unit is currently worth $100) (proposed section 152DE and
sections 4AA and 4B of the Crimes Act 1914).
Amendment (6) will
insert a Note at the end of proposed section 152DE to draw the reader’s
attention to the relevant provisions of the Crimes Act discussed
above.
AMENDMENT (7)
Proposed section 152DF of the Trade Practices Act 1974 provides
that a witness at an ACCC arbitration must not, without reasonable excuse,
refuse or fail to be sworn or make an affirmation, answer ACCC questions or
produce documents required by a summons. An individual can refuse to answer a
question or produce a document on the ground that the answer or production of
the document may tend to incriminate him or her, or expose him or her to a
pecuniary penalty.
Contravention of this provision will be an offence
punishable on conviction by imprisonment for up to 6 months and/or a fine of up
to 30 penalty units (a penalty unit is currently worth $100) (proposed section
152DF and sections 4AA and 4B of the Crimes Act 1914).
Amendment
(7) will insert a Note at the end of proposed section 152DF to draw the
reader’s attention to the relevant provisions of the Crimes Act discussed
above.
AMENDMENT (8)
Proposed section 152DG of the Trade Practices Act 1974 provides
that it is an offence for a person appearing before an ACCC arbitration
knowingly to give evidence that is false or misleading in a material
particular.
Contravention of this provision will be an offence punishable
on conviction by imprisonment for up to 12 months and/or a fine of up to 60
penalty units (a penalty unit is currently worth $100) (proposed section 152DG
and sections 4AA and 4B of the Crimes Act 1914).
Amendment (8)
will insert a Note at the end of proposed section 152DG to draw the
reader’s attention to the relevant provisions of the Crimes Act discussed
above.
AMENDMENT (9)
Proposed section 152DH provides that a person complying with a summons
under proposed section 152DD to give evidence before an ACCC arbitration must
not produce a document that, to the knowledge of the person, is false or
misleading in a material particular, unless it is accompanied by a statement
detailing the false or misleading nature of the document.
Contravention
of this provision will be an offence punishable on conviction by imprisonment
for up to 12 months and/or a fine of up to 60 penalty units (a penalty unit is
currently worth $100) (proposed section 152DH and sections 4AA and 4B of the
Crimes Act 1914).
Amendment (9) will insert a Note at the end of
proposed section 152DH to draw the reader’s attention to the relevant
provisions of the Crimes Act discussed above.
AMENDMENTS (10) AND (11)
Proposed section 152DI of the Trade Practices Act 1974 establishes
as an offence intimidation of witnesses (or proposed witnesses) and persons who
produce (or who propose to produce) documents to the ACCC for the purposes of an
arbitration.
The maximum penalty currently attaching to a contravention
of this provision is imprisonment for 5 years. The level of this penalty was
arrived at on the basis of section 36A of the Crimes Act 1914 which
imposes a maximum penalty of 5 years’ imprisonment for intimidating a
witness in a judicial proceeding. By contrast, the maximum penalty attaching to
a breach of section 44ZK of the Trade Practices Act, on which proposed section
152DI is based, is imprisonment for 12 months.
To ensure consistency with
section 44ZK, Amendment (10) will reduce the maximum term of imprisonment
attaching to proposed section 152DI from 5 years to 12 months.
As a
consequence, contravention of proposed section 152DI will be an offence
punishable on conviction by imprisonment for up to 12 months and/or a fine of up
to 60 penalty units (a penalty unit is currently worth $100) (proposed section
152DI and sections 4AA and 4B of the Crimes Act 1914).
Amendment
(11) will insert a Note at the end of proposed section 152DI to draw the
reader’s attention to the relevant provisions of the Crimes Act discussed
above.
AMENDMENT (12)
Proposed section 152DJ of the Trade Practices Act 1974 provides
that it is an offence for a person, in relation to an arbitration of an access
dispute, to insult or disturb a member of the ACCC, interrupt an arbitration
hearing, use insulting language towards a member of the ACCC or create a
disturbance or take part in the creation or continuation of a disturbance in a
place where the ACCC is holding an arbitration hearing.
Contravention of
this provision will be an offence punishable on conviction by imprisonment for
up to 6 months and/or a fine of up to 30 penalty units (a penalty unit is
currently worth $100) (proposed section 152DJ and sections 4AA and 4B of the
Crimes Act 1914).
Amendment (12) will insert a Note at the end of
proposed section 152DJ to draw the reader’s attention to the relevant
provisions of the Crimes Act discussed above.