BILLS DIGEST NO. 103, 2016–17              29 May 2017

Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017

Dr Rhonda Jolly
Social Policy Section 

Date introduced:  29 March 2017

House:  House of Representatives

Portfolio:  Communications and the Arts

Commencement: See page 4 of this Bills Digest.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s homepage, or through the Australian Parliament website

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website

All hyperlinks in this Bills Digest are correct as at May 2017.

The Bills Digest at a glance

During the 44th Parliament the Government introduced the Communications Legislation Amendment (Deregulation and Other Measure) Bill 2015, which addressed most of the proposals in this Bill.[1] The 2015 Bill was passed by the House of Representatives on 10 February 2016. It was passed by the Senate on 22 February 2016 with an amendment and returned to the House of Representatives, where the amendment was rejected.[2]

The Bill lapsed at prorogation on 17 April 2016.

This Bills Digest contains information prepared for the debate for the 2015 Bill. The Digest restates or updates that information and includes references to Schedules 7 and 8 which are additions to the 2015 Bill.

Purpose of the Bill

The purpose of the Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017 is to:

•       Amend administrative requirements imposed on broadcasters and datacasting licensees.

•       Remove tariff filing requirements for certain carriers and carriage service providers.

•       Amend the role of the Australian Communications and Media Authority (ACMA) and the Australian Competition and Consumer Commission (ACCC) with regards to monitoring and reporting of information.

•       Allow for the telecommunications industry to develop an industry scheme to manage telephone numbering.

•       Amend the Telecommunications Act 1997 to repeal the power of the NBN Co to issue a statement that it is not installing fibre in a new real estate development and for the company to maintain a register of these statements.

•       Amend the National Broadband Network Companies Act 2011 (NBN Companies Act) to allow NBN companies to dispose of surplus goods.

•       Abolish the requirement for ACMA to consult with an advisory committee before declaring a submarine cable protection zone.

The Bill also repeals redundant legislation and spent Acts and corrects an error in the Telecommunications Act which relates to the inadmissibility of evidence in certain proceedings.

Background

The Bill represents part of the Government’s commitment to reducing the cost to Australian businesses of red and green tape by repealing legislation and regulations which it considers unnecessary and counter-productive.

Stakeholder concerns

There has been little stakeholder comment on the issues raised in this Bill.

Key issues

•       Most of the proposed changes are administrative in nature. They will have the effect of delivering more flexibility to ACMA and the ACCC in their administrative and regulatory capacities.

•       Some aspects of the changes could be opposed because it may be argued that rather than simplifying administration, they make it easier for industry to disregard accepted public standards and expectations of quality of service delivery.

Commencement

Schedules 1 and 2, Schedule 3 Part 1 and Schedules 4-8 commence the day the Act receives Royal Assent.

Schedule 3 Part 2 Division 1 commences on Royal Assent, but does not commence at all if Royal Assent occurs after the commencement of item 5 of Schedule 2 to the Competition and Consumer Amendment (Misuse of Market Power Act) 2017.

Schedule 3 Part 2 Division 2 commences on the later of Royal Assent and immediately after the commencement of item 5 of Schedule 2 to the Competition and Consumer Amendment (Misuse of Market Power Act) 2017. However, the Division does not commence at all if that item does not commence.

Purpose of the Bill

The purpose of the Communications Legislation Amendment (Deregulation and Other Measures) Bill 2017 (the Bill) is to:

•       amend what the Government has deemed are unnecessary administrative requirements imposed on broadcasters and datacasting licensees under the Broadcasting Services Act 1992 (BSA) to:[3]

–      modify audit requirements

–      extend the classes of people able to make statutory declarations about gross earnings

–      provide the Australian Communications and Media Authority (ACMA) with discretion with regards to pursuing unpaid licence fees

–      remove duplicated requirements to notify ACMA about certain changes in the control of media assets

–      provide consistent classification arrangements for all television programs

–      remove duplication in ACMA’s complaint handling and investigation processes

–      provide greater flexibility to ACMA in choosing the way in which it publishes notices regarding program standards or standards relating to datacasting

•       remove tariff filing requirements for certain carriers and carriage service providers imposed under the Competition and Consumer Act 2010 (Competition Act)[4]

•       amend the role of ACMA under the Telecommunications Act and the Australian Competition and Consumer Commission (ACCC) under the Competition Act with regards to monitoring and reporting of information.[5] These amendments are intended to ensure that the regime for the statutory collection of information reflects changing markets and consumer behaviour[6]

•       amend the Telecommunications Act and the Telecommunications (Consumer Protection and Service Standards) Act 1999 so the telecommunications industry is able to develop an industry scheme to manage telephone numbering (provided certain safeguards for consumers are met)[7]

•       amend the Telecommunications Act to repeal the power of the NBN Co to issue a statement that it is not installing fibre in a new real estate development and for the company to maintain a register of these statements

•       amend the National Broadband Network Companies Act 2011 to allow NBN companies to dispose of surplus goods[8]

•       abolish the requirement for ACMA to consult with an advisory committee before declaring a submarine cable protection zone

•       correct an error in the Telecommunications Act which relates to the inadmissibility of evidence in certain proceedings and

•       repeal redundant legislation and spent Acts.

Structure of the Bill

The Bill consists of eight schedules. While Schedules 1 to 6 were included in the 2015 Bill, there are some differences between these Schedules as set out in the 2015 Bill and this Bill. Schedules 7 and 8 are new.

•       Schedule 1 removes audit and reporting requirements which have been deemed to be unnecessarily duplicative and burdensome for broadcasters, allows the NBN Co to dispose of surplus assets and removes the requirement for ACMA to consult with an advisory committee before declaring a submarine cable protection zone

•       Schedule 2 amends the BSA and the Australian Communications and Media Authority Act 2005 (ACMA Act) to redefine ACMA’s powers of investigation with regards to complaints made about commercial and national broadcasters and datacasting services[9]

•       Schedule 3 removes requirements that businesses provide the ACCC with certain tariff-related information within a specified period

•       Schedule 4 makes technical amendments to the Australian Broadcasting Corporation Act 1983 and the Special Broadcasting Service Act 1991 to repeal redundant provisions and provide for consistency in definitions across these Acts and the BSA[10]

•       Schedule 5 repeals spent and redundant legislation

•       Schedule 6 provides a framework by which a transition can occur from the current numbering system for carriage services that is regulated by ACMA, to a system which is industry managed

•       Schedule 7 allows for ACMA to make more flexible arrangements for notifying stakeholders it intends to determine, vary or revoke a program standard

•       Schedule 8 amends the Telecommunications Act to remove the requirement for NBN Co to issue a statement that it is not installing fibre in a new real estate development so as to remove confusion about whether developers are then required to provide fixed line infrastructure.

Background

Administrative efficiency

The extent to which government rules and regulation which affect the communications sector have imposed excessively onerous burdens on the industry has been noted and considered in a number of documents in recent times. The final report of the Convergence Review Committee, commissioned under a Labor Government to examine Australia’s rapidly changing media landscape, for example, concluded that many elements of the current communications regulatory regime are outdated and unnecessary, while other rules are becoming ineffective as the communications landscape evolves.[11]

Soon after its election in late 2013 the Coalition Government appointed an independent body to review and report on the performance, functions and roles of the Commonwealth Government.[12] The peak representative organisation for free-to-air broadcasters, Free TV Australia, told this body, the National Commission of Audit (NCoA), in 2014 that the industry faced significant costs as the result of administrative inefficiencies. Free TV listed these as ‘excessive, onerous reporting requirements’ and ‘outdated complaints systems’.[13]

The Coalition vowed to reduce the cost to Australian businesses of red and green tape by repealing legislation and regulations which it considered unnecessary and counter-productive.[14] The communications portfolio was a particular target for red tape reduction with two Department of Communications’ discussion papers agreeing with industry that there were substantial levels of complex regulation that may not be appropriate in a twenty-first century media environment.[15]

In 2015 the Minister for Communications, Mitch Fifield, commented that the Government had delivered significant progress in the implementation of the Government’s regulatory reform agenda in the communications sector.[16] The Minister added that during 2014 and 2015 the Government had introduced more than 65 communications sector measures aimed at simplifying regulation and removed more than 3,400 pages of unnecessary regulation. This had ‘delivered an estimated cumulative annual savings of $340.0 million for businesses and consumers in the communications sector’.[17] These reductions were confirmed in the Government’s annual report on red tape reduction which was released in March 2016.[18]

Numbering plans

Telephone numbering was introduced after it became possible for telephone subscribers to connect to telephone exchanges outside their area and to by-pass the assistance of an operator in doing so. Australia’s telephone numbering has been re-organised a number of times to accommodate increases in the numbers of subscribers and the development of new technologies.[19] A major re-organisation took place in 1997 as mobile phones were first being developed. This re-organisation occurred in the context of the implementation of a new regulatory framework for the telecommunications industry which occurred with the introduction of the Telecommunications Act 1997.

Since 1997 the regulation and organisation of numbering has been the responsibility of ACMA. At that time, subsection 455(1) of the Telecommunications Act required the Australian Communications Authority (now ACMA) to devise a set of rules which regulated the use and administration of Australian telephone numbers. This was known as the Telecommunications Numbering Plan 1997 (the Numbering Plan).[20]

Consultations on the Telephone Numbering Plan have occurred since the introduction of the original Numbering Plan and a number of revisions have been made to the Plan. The latest consultations took place in 2012. These were in response to an ACMA discussion paper, Telephone numbering: future directions, which articulated ACMA’s medium- to long-term vision for numbering in Australia.[21] The paper proposed changes to increase the flexibility and efficiency of numbering arrangements and make pricing clearer for consumers.

A new version of the Plan was put in place in March 2015.[22]

Classification standard

When television was introduced in Australia in 1956 there were certain television standards, set by the Australian Broadcasting Control Board, applied to programming, but by 1986, after extensive criticism by industry and the public, these standards were revised.[23] and the Australian Broadcasting Tribunal (ABT, now known as ACMA) adopted interim standards which set out criteria for the classification of programs and advertisements and the times at which various programs could be broadcast.[24]

In 1991 the ABT undertook an inquiry into aspects of the interim standards and found that there was community support for a regime under which television programming was more ‘tightly regulated’ than cinema or video. This was in recognition of the fact that television was a ‘home medium’ easily accessible by children.[25] Hence, the ABT recommended adopting the Office of Film and Literature Classification (OFLC) Guidelines ‘with appropriate modifications’ as the basis for the self-regulatory codes for television which were to be developed under the BSA. The ABT saw the introduction of the modified OFLC guidelines as a way of reducing confusion about what standards applied to various programming and a means towards bringing standards closer together. The Tribunal also recommended the introduction of a family viewing period and that other scheduling of programs reflect the audience composition at the time.[26]

In December 1992 the Parliament passed legislation loosely based on the ABT recommendations. Since that time the television industry has developed codes of practice which are regularly reviewed through public consultation and which are approved by ACMA.

Policy position of non-government parties/independents

Jason Clare from the Australian Labor Party (Labor/ALP) noted in the House of Representatives debates on the 2015 Bill:

The opposition have consulted with the telecommunications industry, including the Communications Alliance. We have also consulted with the Australian Communications Consumer Action Network and Free TV Australia, and they have indicated to us that they support the amendments in this [B]ill. I thank the government for providing the opposition with a briefing on these [B]ills earlier this week, and, as I said, we will not oppose them in this place.[27]

In the Senate, Senator Ludlam from the Australian Greens commented on the 2015 Bill:

It appears to the Australian Greens that this is basically housekeeping. It is an omnibus [B]ill that sweeps up a number of different areas, particularly, streamlining the broadcast licensing regime; removing some of the licensing categories that I understand have never in fact been used in the entire time that they have been on the statute books; and maybe allowing ACMA to target its limited resources a little bit more directly at the areas where it needs to wave a stick or intervene.

The amendments on the telecom side around the ACMA and the ACCC's powers also appear to the Australian Greens to be reasonably sensible—again, streamlining recordkeeping, removing tariff fixing directions powers and a number of other fairly innocuous amendments, as far as we have been able to ascertain. I might put a couple of questions to the minister on the numbering arrangements when we get to the committee stage, but again I do not think there is anything here that we need to detain the Senate with overlong. This is sensible legislation that will clean up provisions that are either impediments to smooth functioning of the telecommunications and broadcast sector or are in fact completely redundant and have been placed in the statutes back in the mists of time and clearly have not been used and have not been all that necessary. As a housekeeping [B]ill, we would certainly be supporting it.[28]

At the time of writing this Digest there appears to have been no comments made by the non-government parties or independents on the 2017 Bill.

Position of major interest groups

There appears to have been no comments made by the broadcasting industry in relation to the changes proposed by this Bill.

Communications Alliance, the primary telecommunications industry body in Australia, welcomed the introduction of the 2015 Bill and the Telecommunications (Numbering Charges) Amendment Bill 2015, labelling them ‘sensible deregulatory reform, toward which industry has been working with Government for some time’.[29] The Alliance noted that similar arrangements elsewhere have produced ‘more agile, cost-effective and dynamic systems for managing numbering’ and this has been to the benefit of consumers and industry alike.[30]

While it appears that there has been no other comment made in relation to the introduction of an industry-based numbering scheme it is worth noting that in 2012 the Australian Communications Consumer Action Network commented on the importance of numbering policy in achieving ‘availability, accessible and affordable services that enhance the welfare of all Australians’.[31] The comments made by the member for Blaxland, Jason Clare in the House of Representatives debates on the 2015 Bill, appear to indicate that this interest group was supportive of the proposals in the 2015 Bill.[32]

ZOAK Solutions, the company involved in the administration of an updated Numbering Plan introduced by ACMA in early 2015 noted that feedback from ‘several industry participants is that the new system provides an outstanding customer experience because it is an intuitive system that is simple to use’.[33]

Financial implications

According to the Explanatory Memorandum to this Bill, it will not have a ‘significant impact’ on Government expenditure or revenue.[34]

Presumably, given the reduced role for ACMA and the ACCC in review and monitoring processes there will be some financial benefit to those agencies.

In addition, given that Free TV noted in its submission to the NCoA in 2013 that the cost to broadcasters of administering government regulations was ‘significant’, there is likely to be at least some financial benefits to business from a reduction in regulatory requirements.[35]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[36]

The Statement of Compatibility notes that the main implication for human rights in this Bill relates to the changes to the classification provisions under Schedule 1, item 5. This item repeals subsections 123(3A) to (3D) of the BSA so that the classification of all programs broadcast by commercial and community broadcasters and open narrowcasting services will solely reflect classifications under industry codes of practice. The Statement of Compatibility argues this is not contrary to Australia’s obligations under the Convention on the Rights of the Child as ‘the similarities that currently exist between the film and television classification ratings frameworks mean that there will be no significant change in a practical sense to the classification of films broadcast’.[37]

In addition, the Statement of Compatibility makes the point that safeguards exist in the BSA so that industry codes of practice should reflect prevailing community standards for all programs broadcast, including films.

There is further provision that if industry codes of practice are deficient ACMA can determine programs standards.[38]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.[39]

Committee consideration

Senate Scrutiny of Bills Committee

2015 Bill

In February 2016 the Senate Scrutiny of Bills Committee referred questions on two matters relating to the 2015 Bill to the Minister for response.[40]

Schedule 5, item 2: inappropriate delegation of legislative power—consultation requirements

The Committee noted the intention of the Bill to repeal section 152ELB of the Competition and Consumer Act 2010 for the reason it was considered unnecessary in light of provisions in section 17 of the Legislative Instruments Act 2003 (the LI Act).[41] Currently section 152ELB of the Competition and Consumer Act ‘requires the ACCC to publish a draft of its procedural rules and invite interested persons to make submissions during a period of at least 30 days and to consider submissions received’. The Committee was of the opinion:

… consultation requirements under the LI Act are (a) less prescriptive and therefore leave more discretion to the rule-maker about what level of consultation is required, and (b) subject to exceptions specified in section 18. Furthermore, section 19 of the LI Act expressly provides that non-compliance with these requirements does not affect ‘the validity or enforceability of a legislative instrument’.[42]

It therefore sought advice from the Minister about what had led to the conclusion that section 152ELB was unnecessary.[43]

In reply the Minister considered that one of the significant benefits of the LI Act is that it does not purport to prescribe in detail exactly how consultation should occur, which provides for consultation that is both targeted and flexible ‘to ensure that the consultation meets the needs of stakeholders and also that unnecessary costs to the Government and stakeholders are minimised’.[44]

Schedule 6: adequacy of review rights

The Committee considered it was unclear what, if any, review rights are provided for in relation to the proposed industry-based management structure for the administration of numbering arrangements for carriage services.[45]

The Minister replied that he or she would not be able to appoint a numbering scheme manager unless satisfied that the person will administer the numbering scheme in accordance with the numbering scheme principles which were articulated in proposed section 454C of the 2015 Bill.

The Minister added that these principles include:

… making effective complaints processes available to both the telecommunications industry and users of carriage services (proposed new paragraph 454C(2)(n)). This principle will ensure that avenues are in place through which industry and consumers can have their complaints about actions which may affect their rights and obligations heard and addressed. The Minister may also supplement the statutory principles with new requirements by instrument if warranted (proposed new paragraph 454C(2)(q).[46]

The Committee asked for this information to be included in the Explanatory Memorandum to the Bill.[47]

2017 Bill

Schedule 3, items 15, 18 and 22: parliamentary scrutiny—removing requirements to table certain documents

In relation to this Bill, the Committee expressed concern that it proposes to remove requirements in the Competition and Consumer Act and the Telecommunications Act that the Minister table documents, including ACCC and ACMA annual reports, in Parliament.[48] The Committee acknowledges that some information will be published online but notes ‘that removing the requirement for certain information to be tabled in Parliament reduces the scope for parliamentary scrutiny’. It has asked the Minister for an appropriate justification for this proposal and adds that it does not consider costs involved in tabling a sufficient basis for removing the tabling requirement.[49]

Schedule 5, item 2: consultation prior to making delegated legislation

The Committee had expressed a similar concern about this section in the relation to the 2015 Bill. It was not convinced the consultation requirement was unnecessary as a result of consultation requirements set out in the Legislation Act 2003.[50] The Committee believes that section 17 of that Act does not actually require that consultation is undertaken before a rule is made. Rather, it requires that a person making the rule is satisfied that appropriate consultation has been undertaken. Nor does the Legislation Act 2003 set out consultation processes. It adds:

Where the Parliament delegates its legislative power in relation to significant regulatory schemes the Committee considers that it is appropriate that specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) are included in the Bill and that compliance with these obligations is a condition of the validity of the legislative instrument.[51]

It has asked the Minister to justify why the current consultation requirements should be removed. At the time of writing the Minister had not replied to the Committee.

Senate Selection of Bills Committee

The Senate Selection of Bills Committee recommended that the 2015 Bill was not referred to a committee for inquiry.[52] It has also recommended that this bill is not referred to an inquiry.[53]

Key issues and provisions

This section does not discuss all the provisions in this Bill. For a detailed analysis of all provisions, see the Explanatory Memorandum.

Schedule 1: streamlining regulation

Broadcasting Services Act 1992

Control and declarations

Part 5 of the BSA outlines the rules regarding control of commercial television and radio broadcasting licences, datacasting transmitter licences and newspapers that are ‘associated’ with commercial television or radio broadcasting licence areas (known as regulated media assets). This Part of the BSA requires that certain persons must notify ACMA when changes to the control of regulated media assets occur.

Section 63 of the BSA requires individual licensees and publishers to notify ACMA within ten business days when a person becomes, or ceases to be, in a position to exercise control of the licence or newspaper. Section 64 then requires the person who comes into a position of control of a regulated media asset also to notify ACMA within ten business days of the change. This duplication will be addressed by item 1, repealing section 64.

The current BSA requires that commercial television and radio broadcasting licensees provide to ACMA an annual statutory declaration of their gross earnings. Subsection 205B(4) of the BSA requires that the statutory declaration be made by the chief executive officer (CEO) or secretary of the licensee. Item 6 of Schedule 1 proposes to amend the subsection so that those eligible to make a statutory declaration concerning gross earnings will include a director of the licensee and a person who has knowledge of the financial affairs of the licensee (and is authorised to make the declaration by the CEO or secretary). Item 9 of Schedule 1 will make a corresponding amendment to subsection 205BA(2) to extend the class of office holders eligible to make a statutory declaration concerning gross earnings in relation to a channel A datacasting transmitter licence.[54]

Classification

Section 123 of the BSA requires that groups representing commercial broadcasting licensees, community broadcasting licensees, providers of subscription broadcasting and narrowcasting services and providers of open narrowcasting services develop codes of practice that apply to the broadcasting operations of those sections of the broadcasting industry.[55]

Under subsections 123(3A), (3B), (3C) and (3D), codes of practice developed for commercial and community television broadcasting licensees and providers of open narrowcasting television services must ensure that those licensees and providers apply the film classification system provided for by the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act) when broadcasting films, rather than the code-based television classification guidelines that apply to other television programmes broadcast.[56] It is argued in the Explanatory Memorandum that this represents another unnecessary regulatory task for broadcasters as the film and television classifications do not now differ significantly.[57] Item 5 of Schedule 1 proposes to remove the need for broadcasters to take into account classification under the Classification Act when classifying films for viewing on commercial and community television and on open narrowcasting services.[58]

Items 12 to 14 propose to repeal licence conditions that place restrictions on broadcasters in relation to the airing of films that have been classified as RC (Refused Classification), X18+ or R18+ by the Classification Board. With the repeal of the licence conditions, breaches in relation to the airing of these types of films will be treated as code of practice breaches, rather than licence condition breaches.[59]

ACMA discretion

Item 7 of Schedule 1 repeals subsection 205B(4A) of the BSA which requires that financial documents detailing balance sheets and profit and loss information provided to ACMA is audited. Proposed subsection 205B(4A) gives ACMA a new discretion, on a case by case basis to decide if it is necessary for these documents to be audited. The new subsection will authorise ACMA to notify licensees in writing if it requires a balance sheet or profit and loss account sheet to be audited.

Under the BSA, a person or entity providing a commercial broadcasting service on radio or television must hold a commercial radio or television broadcasting licence. The Television Licence Fees Act 1964, Radio Licence Fees Act 1964 and Datacasting Transmitter Licence Fees Act 2006, require commercial television and radio broadcasting licensees and channel A datacasting transmitter licensees to pay licence fees.[60] Licence fees are calculated by licensees using a formula and take into account any rebates that may apply to particular licence categories.

ACMA then calculates if the licence fee paid is correct and currently:

… arranges for any repayments to the licensee (in respect of an overpayment of licence fees) or additional payments (in respect of an underpayment of licence fees) through issuing notices to licensees in accordance with section 205C of the BSA. Penalties for any licence fees that are unpaid by their due date are payable under section 205D of the BSA.[61]

As the Explanatory Memorandum notes, ACMA is required under current legislation to pursue full payment of all licence fees, even if amounts of underpayment are insignificant. Hence, it may at times prove uneconomical for the regulator to take action. Item 11 of Schedule 1 proposes to amend section 205C of the BSA to provide ACMA with:

… the ability to waive the amount of license fees unpaid, and any additional penalty fees, if the ACMA considers that it would not be efficient to recover that amount from the licensee. However, it would be within the discretion of the ACMA as to whether it pursues the unpaid amount (and any related additional fees) …[62]

Comment

Schedule 1 of the Bill generally deals with the streamlining of ‘black letter law’, which is described by the Department of Communications as:

… legislation as well as regulations, standards, directions and rules made under legislation. Black letter law may apply obligations ex‐post or ex‐ante. Compliance is compulsory and legally binding sanctions are available to ensure compliance. Black letter law is developed, administered and enforced by Government or a Government regulator. Industry involvement is generally confined to consultation during the development phase.[63]

In its discussion paper released in May 2015, the Department noted that the communications portfolio ‘includes a vast range of black letter law provisions contained in legislation as well as subordinate instruments’.[64] The effect of the proposed changes in Schedule 1 is to remove a number of duplicative reporting requirements, while still providing ACMA with certain discretion to request financial documentation. These appear to be practical amendments that will benefit both the industry and have no foreseeable adverse effects for the public. Indeed, for some time there have been calls for broadcasting regulators to be given more flexibility in dealing with industry (and imposing regulatory sanctions). During the last major update of media regulation in 2006, for example, a report by Professor Ian Ramsay noted that the regulator lacked access to flexible, ‘middle range’ administrative powers and civil penalties.[65] Areas of particular concern included the issues of late notification of licence control and lodging of financial returns and licence fee payments. Professor Ramsay was of the view that it was inappropriate in many instances to penalise broadcasters for inadvertent breaches or for late payments of licence fees.[66]

While the major focus of the Ramsay report was about strengthening the powers of ACMA ‘to enable it to deal more effectively with breaches of the rules’, the report also made points which support the types of administrative changes proposed in this Bill.[67] These include that flexible enforcement powers are important ‘in motivating regulated entities to have internal compliance procedures that are effective’, they provide an environment where there is more room for manoeuvrability in applying pressure for voluntary compliance and they encourage alternative solutions to problems.[68]

With regards to classification, questions may be raised about whether it is appropriate to remove the licence condition regarding classifying films for viewing on commercial and community television and on open narrowcasting services. There may be concern that making breaches of classification a code of practice violation does not remove an ‘unnecessary’ task for broadcasters, rather it gives broadcasters more opportunity to infringe requirements, reduces the possibility that penalties will result from those infringements and may result in an increase in complaints about breaches.

Submissions to the Australian Law Reform Commission’s inquiry into the classification system noted concerns about existing television classification codes. The Australian Council on Children and the Media (ACCM), for example, maintained that self-regulatory codes do not stop the industry from ‘doing what it wants’ and that if limits are needed to protect the public interest those limits should be imposed by ‘public institutions’.[69] The Commissioner for Children and Young People (WA) also believed that industry codes of practice ‘are not sufficient to ensure the safety, protection and wellbeing of children and young people’.[70] It may be these groups will see the proposed change to the legislation as a further opportunity for broadcasters to ‘do as they want’.

While there may be some substance to these types of claims, it must be noted that ACMA retains the power to investigate complaints made by the public relating to industry codes of practice (under section 148 of the BSA). See Box 1 below:

Box 1: Broadcasting Services Act 1992, section 148

If:

(a) a person has made a complaint to a provider of broadcasting services on a matter relating to:

  (i) program content; or

(ii) compliance with a code of practice that applies to those services and that is included in the Register of codes of practice; and

(b) if there is a relevant code of practice relating to the handling of complaints of that kind—the complaint was made in accordance with that code of practice; and

(c) either:

(i) the person has not received a response within 60 days after making the complaint; or

(ii) the person has received a response within that period but considers that response to be inadequate;

the person may make a complaint to the ACMA about the matter.

National Broadband Network Companies Act 2011

Item 15 in Schedule 1 of this Bill addresses issues which were not dealt with in the 2015 Bill. Item 15 proposes to revise section 19 of the NBN Companies Act to lift certain restrictions relating to the disposal of goods by an NBN company. Currently an NBN company cannot sell surplus non-communications assets, such as office equipment, to another company or person unless the NBN company also supplies ‘eligible services’ to the intended purchaser.[71]

Item 15 proposes to allow an NBN corporation to supply goods to another person or company if one of the following conditions is met:

•       the goods are for use in connection with the supply of an eligible service by the NBN corporation

•       the NBN corporation did not obtain the goods for the purpose of supplying the goods or

•       the NBN corporation obtained the goods for the purpose of supplying the goods in connection with the supply, or prospective supply, of an eligible service and it considers the goods to be excess to its requirements.

The Explanatory Memorandum argues that easing the current restriction will allow for more efficient and financially effective management of NBN corporation assets.[72]

Comment

An Optus submission to a Senate Inquiry into the provisions of the Telecommunications Legislation Amendment (Access Regime and NBN Companies) Bill 2015 (Access Regime Bill) which, among other matters, dealt with line of businesses restrictions such as the one stated in item 15, did not object to a similar amendment proposed in that Bill. Optus added, however, that such a change to should not be used ‘to expand the role of NBN Co into telecommunications markets which are competitive and adequately served by commercial entities’.[73]

A further submission to the same Senate inquiry from the Competitive Carriers Coalition (CCC) noted that while the NBN company had argued the restrictions on its business activities were ‘so tight that it cannot even dispose of equipment or goods surplus to requirements’ it had offered no actual examples of the restrictions causing difficulty.[74] CCC acknowledged that while NBN should be able to dispose of surplus goods, line of business restrictions were put in place to ensure the company provided specific services. It added:

Once it has rolled out in a location, NBN enjoys a powerful monopoly over access to fixed line communications services to consumers in those locations.

It was Telstra’s systematic exploitation of this power to the detriment of consumers and competition that led to the decision to vest this power in an all-new, wholesale only network operator … NBN should remain strictly focused on the purpose for which it was created—addressing areas of market failure in wholesale markets.[75]

Macquarie Telecom was also wary of making changes to business activity restrictions. It was unclear what the NBN company was presently precluded from doing, and added that while current restrictions may be excessive, there needed to be further information advanced before a judgement could be made about removing this restriction.[76]

The proposed changes in item 15 mirror those in the 2015 Access Regime Bill and there appears to have been no further explanation proffered by the NBN company as to why the current restrictions are detrimental to efficiency or financial management.[77]

Telecommunications Act 1997

Item 16 corrects an error in paragraph 524(2)(d) of the Telecommunications Act. This protects individual carriers and carriage service providers against self-incrimination with regards to providing information to ACMA which concerns the exercise of the regulator’s powers and functions (section 521).[78] The intention of the provision is that information or documents can only be used in civil proceedings relating to their failure to comply with the obligation to provide ACMA with documents or information relevant to the exercise of ACMA’s telecommunications powers or the performance of its telecommunications functions. As a result of the error, however, proceedings relating to section 521 are the only civil proceedings where the information or documents are inadmissible.

ACMA can declare protection zones for submarine communications cables installed, or proposed to be installed in Australian waters.[79] In so doing, currently ACMA is required to consult with an advisory committee. Items 17 to 23 of Schedule 2 will remove a requirement for ACMA to consult with such a committee, because ACMA is already required to consult with the Environment Secretary and the public regarding submarine cables. As such, according to the Explanatory Memorandum, the added consultation requirement is an unnecessary added cost.[80]

Schedule 2: ACMA complaints handling

Under section 147 of the BSA complaints may be made to ACMA about offences relating to, or breaches of licence conditions. ACMA may investigate these complaints if it chooses to do so. Under section 150 of the BSA (Division 2, Part 11 of the BSA) a complaint can also be made to ACMA about the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service (SBS). If ACMA chooses to investigate the complaint and finds it substantiated, then it can encourage the ABC or SBS to take action to deal with the complaint.

In addition to the power authorised under Part 11 (sections 147 to 153), ACMA is given a general power under Division 2 Part 13 of the BSA to investigate broadcasters and datacasters. The Explanatory Memorandum to the Bill argues that as complaints of the type referred to in Part 11 can be investigated under the general investigation powers in Part 13, the powers in Part 11 duplicate those in Part 13. This Bill proposes therefore to repeal Part 11 of the BSA. It is intended that in addition to the repeal of Part 11, item 4 of Schedule 2 would then insert proposed section 170A ‘to make clear that under Part 13 persons have the same ability to make, and the ACMA has the same powers to investigate, complaints about licensed and national broadcasters as were available under Part 11’.[81]

Further amendments under item 5 would insert proposed section 171A which would make clear that investigations are at the discretion of ACMA (proposed subsection 171A(1)) and that the regulator must publish on its website the procedures it will usually follow in investigating complaints, although the regulator is not prevented from adopting different procedures in relation to a particular complaint (proposed subsection 171A(2)).

Item 6 will insert proposed sections 181 and 181A into Part 13 of the BSA to address actions which specifically relate to complaints about the national broadcasters currently dealt with in Division 2 of Part 11. These proposed sections reflect current sections 150 to 153 of the BSA by providing that unresolved complaints about code of practice violations by the national broadcasters and complaints about failure of the broadcasters to comply with captioning obligations in Part 9D of the BSA can be investigated at ACMA’s discretion. As is currently the case, ACMA will be able to recommend the action the broadcasters should take to remedy the situation and, if this is not acted upon, make a report to the Minister.

Comment

Changes in Schedule 2 are proposed in response to a 2015 decision in the Federal Court in Harbour Radio Limited v the Australian Communications and Media Authority (see brief background in Box 2 below).

In this case, Justice Buchanan found that ACMA has ‘discretion to investigate under section 170 [the general investigations power], whereas it had an obligation to do so in an appropriate case under section 149 [the power to investigate complaints relating to offences and breaches of licence conditions or codes of practice]’. [82] At the same time the Court held that the operation of sections 149 and 170 of the BSA are not mutually exclusive. The operation of section 149 does not prevent ACMA from also exercising the discretion afforded to it by section 170 of the BSA. In other words, there is nothing to prevent ACMA from commencing what is called an ‘own motion’ investigation into a matter which is already under an obligatory investigation by the Regulator under section 149. This is essentially the basis for the contention by the Explanatory Memorandum that Part 11 duplicates the regulator’s powers in Part 13.[83]

In proposing to repeal Part 11 and retain Part 13, this Bill is in keeping with the Government’s stated intention of providing the Regulator with more discretion and flexibility in handling complaints. ACMA’s powers to deal with breaches of Codes of Practice will not be affected by this change. The Regulator continues to have a range of powers to deal with breaches. These include requiring broadcasters to agree to enforceable undertakings to secure future compliance with a code or imposing additional licence conditions requiring licensees to comply with codes.

Box 2: Harbour Radio complaints investigations

Harbour Radio is a commercial broadcasting licensee which broadcasts as station 2GB in Sydney and syndicates its programs to a number of other stations.

In Harbour Radio Limited v the Australian Communications and Media Authority the Federal Court considered ACMA investigations into complaints made by listeners regarding on-air statements by Alan Jones in 2013.

Complaints alleged that Mr Jones had breached the Commercial Radio Code of Practice in commenting on a [then forthcoming] report on climate change in September 2013 and on a proposal to build an airport in Toowoomba in Queensland in November and December 2013.

Harbour Radio argued that ACMA could not investigate the climate change complaints as the complainants had not fulfilled requirements under the Commercial Radio Code for lodging complaints. After ACMA considered this response it then decided to investigate the matter under section 170 of the BSA.[84]

The second complaint was made by the company which intended to build an airport at Toowoomba. Harbour Radio again claimed that the complaint was not legitimate and that ACMA lacked the jurisdiction to investigate after ACMA notified the broadcaster that it had commenced an investigation under the BSA.[85]

Schedule 3: monitoring the telecommunications industry

Part 1

Competition Act

Part XIB of the Competition Act sets out the obligations which apply to the telecommunications industry with regards to anti-competitive conduct and record-keeping.[86]

Item 2 of Schedule 3 to this Bill proposes to repeal Divisions 4 and 5 of Part XIB. Division 4 of Part XIB requires the ACCC to collect certain tariff information from telecommunications carriers and carriage service providers (CSPs) that hold a substantial degree of power in the market. Division 5 sets out the tariff filing requirements that apply specifically to Telstra.

According to the Explanatory Memorandum, these requirements impose an unnecessary regulatory burden on business as the information that it is required to provide to the ACCC is ‘readily available’ through ‘other avenues’.[87] The Explanatory Memorandum considers also that as the information supplied to the ACCC is of little benefit in assisting in the investigation of anti-competitive behaviour, it ‘cannot be justified’.[88]

Division 6 of Part XIB currently provides that the ACCC can require carriers and CSPs to keep and retain records and to provide reports on certain matters. These include ascertaining whether the ‘competition rule’ has been, or is being, complied with or whether tariff filing directions have been, or are being, complied with (subsection 151BU(4)).[89] The ACCC introduced record keeping rules, Division 12 Record-Keeping and Reporting Rules in December 2004 under Division 12 of Part XIB and it has revised these rules on a number of occasions in response to changes in industry trends.[90]

Item 4 of Schedule 3 will insert proposed subsections 151BU(4A) and (4B) to make it a formal requirement that the ACCC review its record-keeping rules within one year of commencement of the Bill and then at least once every five years to ‘ensure that they remain up-to-date, reflect changing markets and consumer behaviour and minimise the regulatory burden on industry’.[91] In reviewing rules the ACCC would need to take into account whether information is publicly available, whether consumer demand for goods and services about which the information relates has changed and what use the information will be for consumers, industry, the Minister and the Parliament.

As the Explanatory Memorandum notes, while the proposed subsections represent ‘a statutory minimum level of review’, there is nothing in the legislation that would prevent the ACCC from undertaking more regular reviews ‘if circumstances warrant’.[92]

Division 12 of Part XIB of the Competition Act requires the ACCC to monitor charges paid by consumers for listed carriage services and goods and services used in connection with those carriage services. The ACCC must provide an annual report on these matters and include in the report information on Telstra’s compliance with the price control arrangements under Part 9 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.

Items 17 and 18 of the Bill amend the ACCC’s monitoring and reporting function with the intention to deliver a ‘more flexible regime’.[93] According to the Explanatory Memorandum, this also reflects the fact that the current monitoring and reporting obligations apply largely to traditional providers of services, and as such, they may not fully reflect the telecommunications market.[94]

Telecommunications Act

Subsections 105(1) to (4) of the Telecommunications Act currently require that ACMA monitors and reports to the Minister on certain aspects of the telecommunications industry.[95] Item 20 of this Bill will repeal these subsections, according to the Explanatory Memorandum because the ‘policy rationale’ for such reporting is no longer ‘compelling’.[96] Item 20 therefore reduces the reporting requirements to include only those relating to national interest matters under Part 14 of the Telecommunications Act, the costs of compliance with Part 14 and the costs of compliance with data retention under the Telecommunications (Interception and Access) Act 1979.

Part 2

Part 2 of Schedule 3 sets out proposed amendments to the Competition Act that will be dependent on the commencement of amendments proposed in the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 (Market Power Bill).[97] The Explanatory Memorandum explains that due to uncertainties relating to the passage and timing of commencement of this Bill and the Market Power Bill, it has been necessary to insert timing options contingent on the passage of each Bill. These are set out in detail in the Explanatory Memorandum.[98]

Comment

The Explanatory Memorandum states that the legislative requirement imposed almost twenty years ago in the Telecommunications Act for ACMA to monitor and report annually on consumer satisfaction with, consumer benefits of and the quality of service delivered by the telecommunications industry ensured there was a high degree of oversight of the industry when it was needed. The Explanatory Memorandum argues this is no longer a compelling argument for this requirement to continue, because of increased competition in the industry and in light of the introduction of a new regulatory framework.[99] Hence, it is more beneficial to industry and the Government if ACMA produces targeted reports.

While the reports produced by ACMA in response to the legislative requirements under section 105 have been prepared using information supplied by the industry and not by means of independent analysis, they have nevertheless been excellent sources of information on the telecommunications industry. It is unlikely that targeted reports will provide information which can give rise to the same degree of comparative analysis as would result from ACMA continuing to collect and publish this information.

Schedule 6: numbering

Under the Telecommunications Act ACMA is required to make a plan which deals with the numbering of telecommunications carriage services and the use of numbers in connection with the supply of these services. The Numbering Plan for Australia specifies rules for the allocation, transfer, surrender, portability and use of different types of numbers in connection with the supply of carriage services. Rights and responsibilities relating to numbers are contained in a number of legislative and regulatory instruments. Industry codes and guidelines and contractual arrangements between parties also affect how numbers are managed.[100]

The Numbering Plan covers geographic numbers, free phone numbers (1800), local rate numbers (13 and 1300), premium rate numbers (19) and mobile phone numbers. The Numbering Plan also specifies emergency services numbers.

Schedule 6 of this Bill will set up a framework under which the responsibility for numbering, with the exception of emergency numbers, may be transferred to industry and be undertaken by a numbering scheme manager, who will be approved by the Minister. The numbering scheme manager will be able to be a person or a body corporate.

Item 1 proposes to repeal the reference to ACMA’s role in regulating telecommunications numbers by means of a numbering plan in the simplified outline of the Telecommunications Act. The item will substitute the statement that numbering may be administered by a numbering scheme manager (or ACMA in the case that a numbering scheme manager is not appointed by the Minister). The Explanatory Memorandum explains that emergency numbers will remain the responsibility of ACMA given their importance to the community.[101]

Item 10 will insert a new subdivision (Subdivision AA) into Division 2 of Part 22 of the Telecommunications Act to deal with the management of the numbering scheme by the numbering manager. Proposed section 454A in this subdivision will allow the Minister to determine the numbering scheme manager by legislative instrument. The numbering scheme manager must administer the scheme in accordance with ‘numbering scheme principles’ (proposed subsection 454C(1)). Before determining the numbering scheme manager the Minister must consult with ACMA and the ACCC. It is proposed that the Minister will be able to direct the numbering scheme manager to amend the rules of the numbering scheme or to changes its processes (proposed subsection 454E(1)) and that ACMA and the ACCC will also be able to give directions to the numbering scheme manager following consultation with the Minister and the manager (proposed subsections 454E(3) to (6)). The numbering scheme manager must comply with these directions (proposed subsection 454E(7)). Failure to do so could result in the imposition of a civil penalty (proposed subsection 454E(8)).

The proposed numbering scheme principles are detailed in proposed section 454C. These are shown in Box 3 below:

Box 3: numbering scheme: proposed principles

(a) there must be an adequate and appropriate supply of numbers for carriage services;

(b) future needs for numbering must be planned for, having regard to community needs, industry needs and global trends;

(c) numbering arrangements must be effective and efficient and support the effective and efficient supply of carriage services;

(d) numbering arrangements must have regard to recognised international standards and ensure that numbering in Australia operates in conjunction with international numbering arrangements;

(e) there must be fair and transparent access to numbers for all carriage service providers, and numbering arrangements must support competition in the supply of carriage services;

(f) the interests of users of carriage services must be protected, including in relation to the use and portability of numbers;

(g) the numbering scheme’s provisions for the portability of numbers must be consistent with any directions made by the ACCC to the ACMA under subsection 458(2) in relation to portability of numbers;

(h) the numbering scheme must support the use of emergency call services;

(i) numbering arrangements must meet the requirements of Australian law enforcement and national security agencies;

(j) numbering arrangements must provide for the collection of charges imposed under the Telecommunications (Numbering Charges) Act 1997;

(k) the Register of allocated numbers must be kept up to date;

(l) the rules and processes of the numbering scheme, including a plan for numbering of carriage services:

(i) must be adhered to by the numbering scheme manager; and

(ii) must be published and available at no charge;

(m) the numbering scheme must include compliance mechanisms to provide for enforcement of scheme rules;

(n) the numbering scheme must make effective complaints processes available to both the telecommunications industry and users of carriage services;

(o) the recovery of costs in relation to the management of the numbering scheme must reasonably reflect costs and must be fair and transparent;

(p) public consultation must be undertaken before any significant change is made to the numbering scheme;

(q) any additional principles determined by the Minister by legislative instrument.

Comment

As noted earlier in this digest, Communications Alliance, the primary telecommunications industry body in Australia considers that an industry based numbering scheme will be more cost effective and efficient and similar schemes overseas have delivered benefits for customers and industry.[102] The Alliance provides no example or detail to substantiate this claim. There are, however, examples of the proposed type of scheme.

Administration of the North American Numbering Plan, for example, is not undertaken by governments; the overall administration of the Plan is undertaken by a company appointed by the United States Government regulator and other members involved in the Plan appoint individual country administrators (see Box 4 below for more detail).

Box 4: North American Numbering Plan Administration

The North American Numbering Plan is administered by the North American Numbering Plan Administration (NANPA). NANPA is allocated to a company by the American Federal Communications Commission (FCC). This last occurred in 2012 when the FCC allocated the administration to the Neustar Company for a period of five years.

Legislation requires the FCC to create or designate one or more impartial entities to administer telecommunications numbering and to make numbers available on an equitable basis. It also requires that costs of number administration and number portability are borne by all telecommunications carriers.

NANPA is required to administer numbering resources in a neutral manner; it is not a policy-making entity and is subject to regulatory directives and industry-developed guidelines. NANPA’s responsibilities are defined in FCC rules and in technical requirements drafted by the telecommunications industry and approved by the FCC.

Regulatory authorities in various NANPA countries name national administrators to oversee the numbering resources assigned by NANPA. Neustar is the national administrator for the United States and its territories. In other participating countries, regulatory authorities either serve as the national administrator or delegate the responsibility to the dominant carrier.

NANPA costs are allocated to participating countries based on population, and then further adjusted based on NANPA services used by each country. Participants pay their share of the costs of the NANPA services they require. Regulatory authorities in each participating country determine how to recover these costs.[103]

It should be noted that there is no indication of the order of savings to industry which will result from the change to an industry-managed scheme.

While it appears that there have been no other comments made in relation to the introduction of an industry-based numbering scheme, in 2012 the Australian Communications Consumer Action Network commented on the importance of numbering policy ‘in achieving availability, accessible and affordable services that enhances the welfare of all Australians’.[104] It is likely, therefore, that this group, and perhaps other consumer groups, may want to know the details of any industry-based scheme before voicing support for change. This would especially apply with reference to the question of whether an industry-managed scheme would impose any financial burdens on customers.

A paper produced for the International Telecommunications Union (ITU) makes the point that there is widespread agreement that national telephone numbering plans are a national resource and that they should be managed in the overall national interest. In a competitive telecommunications environment, it is the job of an independent regulator to ensure this happens, with one of the prime roles of the regulator being to resolve conflicts of interest.[105] There may therefore be some question of the extent to which potential conflicts of interest may be exacerbated if the Numbering Plan is managed by an industry body.

The ITU argues that it is possible for a regulator not to take a role in the day-to-day running of a plan, however, and avoid such conflicts of interest, provided that it is given the capacity to maintain a long-term vision for a numbering scheme and that vision is structured to foresee potential capacity shortages, instigate reviews of a Plan and take overall responsibility for its operation with the national interest as its objective.[106] There may be some question about the extent to which this role is possible for ACMA if the proposed changes are enacted. It appears that the role of planning for future needs, for example, is to be undertaken by the numbering scheme manager (proposed subsection 454C(2)(b)). It could be argued that powers provided to the Minister and ACMA to enable them to direct the numbering scheme manager to amend rules, change processes or refrain from acting in a certain manner in relation to the proposed scheme are sufficient, but there could be a countervailing argument that these powers are reactive, and dealing with numbering in an ever-changing telecommunications environment needs to be proactive.

In light of the above comments ZOAK Solutions, the company involved in the administration of ACMA’s updated Numbering Plan, noted that feedback from ‘several industry participants is that the new system provides an outstanding customer experience because it is an intuitive system that is simple to use’.[107] The updated Plan reflects ACMA’s own assessment in 2011 that the Plan as it existed then was:

… a cumbersome legislative artefact that has the potential to unnecessarily raise information costs for industry and—to the extent that it is unnecessarily complex and prescriptive—raise barriers to innovation.[108]

The recent revision has been informed by design principles. These intend to inform future development of the Plan and are as follows:

•       broad-based use of numbers—so that the use of numbers is not unduly restricted by the Numbering Plan

•       technical neutrality—so that the specification of numbers based on the technical characteristics of the service or the platform over which it is provided is minimised in the Numbering Plan

•       price transparency—so that where it is necessary to use numbering to facilitate end users recognising the costs of calls, this is supported by the structure of the Numbering Plan and

•       clarity—so that the structure of the Numbering Plan is simple and capable of being readily understood.[109]

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[1].              Parliament of Australia, ‘Communications Legislation Amendment (Deregulation and Other Measures) Bill 2015 homepage’, Australian Parliament website.

[2].              The amendment was to change the National Broadband Network Companies Act 2011 to require the NBN Co Board to prepare a report setting out NBN Co's financial and deployment forecasts for the period beginning on 1 July 2015 and ending on 30 June 2022. ‘Communications Legislation Amendment (Deregulation and Other Measures) Bill 2015, Telecommunications (Numbering Charges) Amendment Bill 2015’, House of Representatives, Debates, 22 February 2016, p. 509.

[3].              Broadcasting Services Act 1992.

[4].              Competition and Consumer Act 2010.

[5].              Telecommunications Act 1997.

[6].              Explanatory Memorandum, Communications Legislation Amendment (Deregulation and Other Measure) Bill 2017, p. 20.

[7].              Telecommunications (Consumer Protection and Service Standards) Act 1999.

[8].              National Broadband Network Companies Act 2011.

[9].              Australian Communications and Media Authority Act 2005.

[10].              Australian Broadcasting Corporation Act 1983 and Special Broadcasting Service Act 1991.

[11].              Convergence Review Committee, Convergence review: final report, report prepared for the Department of Broadband, Communications and the Digital Economy (DBCDE), DBCDE, Canberra, March 2012, p. 1.

[12].              National Commission of Audit (NCoA).

[13].              Free TV Australia, Submission to NCoA, General call for submissions, 29 November 2013, p. 4.

[14].              T Abbott (Prime Minister) and J Frydenberg (Parliamentary Secretary to the Prime Minister), Reducing red tape to build a strong and prosperous economy, joint media release, 19 March 2014.

[15].              Department of Communications (DoC), Deregulation in the communications portfolio, policy background paper, 1, DoC, Canberra, November 2013, p. 3; and DoC, Regulating harms in the Australian communications sector: observations on current arrangements, policy background paper, 2, DoC, Canberra, May 2014.

[16].              M Fifield (Minister for Communications), Regulation reform agenda continues to benefit the communications sector, media release, 2 December 2015.

[17].              Ibid.

[18].              Department of the Prime Minister and Cabinet (PM&C), Annual red tape reduction report 2015, PM&C, Canberra, 2016.

[19].              AH Freeman, History of telephone switching technology in Australia: 1880 to 1980, Telecommunication Society of Australia, Sydney, [1990], p. 12.

[20].              Telecommunications Numbering Plan 1997.

[21].              Australian Communications and Media Authority (ACMA), Telephone numbering: future directions, ACMA, Canberra, November 2011.

[22].              Telecommunications Numbering Plan 2015.

[23].              The Broadcasting and Television Act 1956 gave this power to the Australian Broadcasting Control Board, the predecessor of the Australian Broadcasting Tribunal.

[24].              Australian Broadcasting Tribunal (ABT), Inquiry into the classification of program material on television: report and recommendations, ABT, Sydney, June 1992.

[25].              Ibid.

[26].              Ibid.

[27].              J Clare, ‘Second reading speech: Communications Legislation Amendment (Deregulation and Other Measures) Bill 2015, Telecommunications (Numbering Charges) Amendment Bill 2015’, House of Representatives, Debates, 10 February 2016, p. 1195.

[28].              S Ludlam, ‘Second reading speech: Communications Legislation Amendment (Deregulation and Other Measures) Bill 2015, Telecommunications (Numbering Charges) Amendment Bill 2015’, Senate, Debates, 22 February 2016, p. 586.

[29].              Communications Alliance, Industry welcomes government move to facilitate an industry-based scheme to manage telephone numbering, media release, 2 December 2015.

[30].              Ibid.

[31].              Australian Communications Consumer Action Network (ACCAN), Submission to ACMA, Telephone numbering: future directions, February 2012.

[32].              J Clare, ‘Second reading speech: Communications Legislation Amendment (Deregulation and Other Measures) Bill 2015, Telecommunications (Numbering Charges) Amendment Bill 2015’, op. cit.

[33].              ZOAK Solutions, ‘ZOAK Solutions switches on Australia’s new numbering system’, ZOAK Solutions website, 3 August 2015.

[34].              Explanatory Memorandum, op. cit., p. 3.

[35].              Free TV Australia, Submission to NCoA, op. cit.

[36].              The Statement of Compatibility with Human Rights can be found at pages 5–8 of the Explanatory Memorandum to the Bill.

[37].              Explanatory Memorandum, op. cit., p. 7.

[38].              Ibid.

[39].              Parliamentary Joint Committee on Human Rights, Report, 4, 2017, The Senate, Canberra, 9 May 2017, p. 74.

[40].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 1, 2016, The Senate, 3 February 2016, p. 6.

[41].              The Legislative Instruments Act 2003 is now the Legislation Act 2003.

[42].              Ibid.

[43].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 1, 2016, The Senate, 3 February 2016, p. 7.

[44].              Senate Standing Committee for the Scrutiny of Bills, Report, 2, 2016, The Senate, 24 February 2016, pp. 60–61.

[45].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 1, 2016, op. cit., p. 7.

[46].              Senate Standing Committee for the Scrutiny of Bills, Report, 2, 2016, op. cit., p. 62.

[47].              Ibid., p. 63.

[48].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 5, 2017, The Senate, 10 May 2017, p. 9.

[49].              Ibid., p. 10.

[50].              Ibid., p. 11.

[51].              Ibid.

[52].              Senate Selection of Bills Committee, Report, 1, 2016, The Senate, 4 February 2016.

[53].              Senate Selection of Bills Committee, Report, 5, 2017, The Senate, 11 May 2017.

[54].              Under the Radiocommunications Act 1992 persons can be issued licences that authorise them to operate specified radiocommunications transmitters of a specified kind (section 98). Conditions on channel A datacasting transmitter licences include that persons must not operate a transmitter for transmitting a datacasting service unless: the service is provided under, and in accordance with the conditions of, a BSA datacasting licence, and the service is capable of being received by a domestic digital television receiver or the service is an open narrowcasting television service that is capable of being received by a domestic digital television receiver or the service is a community television broadcasting service that is capable of being received by a domestic digital television receiver (section 109A).

[55].              Explanatory Memorandum, op. cit., p. 11.

[56].              Ibid., and Classification (Publications, Films and Computer Games) Act 1995.

[57].              Explanatory Memorandum, op. cit., p. 12.

[58].              Narrowcasting services are defined in the BSA under sections 17 and 18 as broadcasting services whose reception is limited by: being targeted to special interest groups; intended only for limited locations; provided during a limited period of time; because they provide programs of limited appeal or for some other reason. The difference between open and subscription narrowcasting services is that subscription narrowcasting services are made available only on payment of a subscription fee.

[59].              Explanatory Memorandum, op. cit., p. 14.

[60].              Television Licence Fees Act 1964; Radio Licence Fees Act 1964 and Datacasting Transmitter Licence Fees Act 2006.

[61].              Explanatory Memorandum, op. cit., p. 13.

[62].              Ibid.

[63].              DoC, Regulating harms in the Australian communications sector, op. cit., p. 6.

[64].              Ibid., p. 7.

[65].              L Maddock, foreword to report by I Ramsay, Reform of the broadcasting regulator’s enforcement powers, ACMA, Sydney, November 2005, p. iii.

[66].              Ramsay, Reform of the broadcasting regulator’s enforcement powers, op. cit., pp. 9–10.

[67].              Ibid., p. 5.

[68].              Ibid., pp. 9–10.

[69].              Australian Council on Children and the Media, Submission to the Australian Law Reform Commission (ALRC), Inquiry into the classification system, cited in ALRC, Classification: content regulation and convergent media: final report, report, 118, ALRC, Sydney, February 2012, p. 309.

[70].              Commissioner for Children and Young People Western Australia, Submission to the Australian Law Reform Commission, Inquiry into the classification system, cited in Classification—content regulation and convergent media, op. cit., p. 310.

[71].              The meaning of ‘eligible services’ is as defined in the Competition and Consumer Act section 152AL as ‘a listed carriage service (within the meaning of the Telecommunications Act 1997) or a service that facilitates the supply of a listed carriage service (within the meaning of that Act) where the service is supplied, or is capable of being supplied, by a carrier or a carriage service provider (whether to itself or to other persons).

[72].              Explanatory Memorandum, op. cit., p. 14.

[73].              Optus, Submission to Senate Environment and Communications Legislation Committee, Inquiry into Telecommunications Legislation Amendment (Access Regime and NBN Companies) Bill 2015, December 2015, p. 7.

[74].              Competitive Carriers’ Coalition (CCC), Submission to Senate Environment and Communications Legislation Committee, Inquiry into Telecommunications Legislation Amendment (Access Regime and NBN Companies) Bill 2015, 2015, p. 6.

[75].              Ibid.

[76].              Macquarie Telecom, Submission to Senate Environment and Communications Legislation Committee, Inquiry into Telecommunications Legislation Amendment (Access Regime and NBN Companies) Bill 2015, Attachment 1, 2015, p. 4.

[77].              See item 31 of Schedule 1 to the Telecommunications Legislation Amendment (Access Regime and NBN Companies) Bill 2016.

[78].              Telecommunications Act, section 521.

[79].              ACMA advises that ‘Australia’s submarine communications cables carry the bulk of our international voice and data traffic and are a vital component of our national infrastructure, linking Australia with other countries’, ACMA, ‘About submarine cable protection’, ACMA website.

[80].              Explanatory Memorandum, op. cit., p. 16.

[81].              Explanatory Memorandum, op. cit., p. 17.

[82].              Harbour Radio Pty Limited v Australian Communications and Media Authority (2015) 231 FCR 329, [2015] FCA 371. Note that section 149 was amended by the Omnibus Repeal Day (Autumn 2014) Act 2014. The amended section replaced ‘the duty to investigate with a general discretion to investigate’, Explanatory Memorandum, Omnibus Repeal Day (Autumn 2014) Bill 2014, p. 12.

[83].              Explanatory Memorandum, op. cit., p. 17.

[84].              ACMA, Radio investigation report 3151, ACMA2013/1548, ACMA, Canberra, 24 September 2014.

[85].              There is no further information on the Toowoomba complaint on the ACMA radio investigation page on its website.

[86].              Competition and Consumer Act 2010.

[87].              Explanatory Memorandum, op. cit., p. 19.

[88].              Ibid.

[89].              The competition rule is contained in section 151AK of the Competition Act and states that ‘a carrier or carriage service provider must not engage in anti-competitive conduct’. The circumstances in which a carrier will engage in anti-competitive conduct are set out at section 151AJ.

[90].              ACCC, Division 12 report: record-keeping and reporting rules, ACCC, Canberra, July 2013.

[91].              Explanatory Memorandum, op. cit., p. 20.

[92].              Ibid.

[93].              Ibid., p. 21.

[94].              Ibid.

[95].              Ibid., p. 22.

[96].              Ibid.

[97].              The Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 is before the Senate (since 29 March 2017). For more information on the Bill see P Davidson, Competition and Consumer Amendment (Misuse of Market Power) Bill 2017, Bills digest, 87, 2016–17, Parliamentary Library, Canberra, 29 March 2017.

[98].              Explanatory Memorandum, op. cit., pp. 22–24.

[99].              Ibid., p. 22.

[100].              ACMA, ‘Numbering plan’, ACMA website, 26 September 2016.

[101].              Explanatory Memorandum, op. cit., p. 33.

[102].              Communications Alliance, media release, op. cit.

[103].              Information in this box derived from the North American Numbering Plan Administration website and the Federal Communications Commission’s information pages on the Plan.

[104].              ACCAN, Submission to ACMA, op. cit.

[105].              C Milne, Numbering trends: a global overview, paper prepared for the International Telecommunications Union (ITU), ITU, 20 December 2002, pp. 54–55.

[106].              Ibid.

[107].              ZOAK Solutions, news item, ZOAK Solutions website, op. cit.

[108].              ACMA, Telephone Numbering: future directions, op. cit., p. 2.

[109].              Ibid.