Report
Introduction
The Radiocommunications Legislation Amendment Bill 1999, the
Radiocommunications (Receiver Licence Tax) Amendment Bill 1999 and the
Radiocommunications (Transmitter Licence Tax) Amendment Bill 1999 were referred
to the Senate Environment, Communications, Information Technology and the Arts
Legislation Committee on 10 March 1999 by the Selection of Bills Committee
(Report No 3 of 1999). The Committee was required to report to the Senate by
the 26 April 1999. The tabling date was subsequently extended to Tuesday 11 May
1999.
The Bills
The Radiocommunications Legislation Amendment Bill 1999
makes various, unrelated minor amendments which have been requested by the
Australian Communications Authority (ACA), after consultations with the
telecommunications industry and consumers in order to aid the provision of
telecommunications services.[1]
In particular, the Bill amends the Radiocommunications Act
1992 and the Radiocommunications Taxes Collection Act 1983 to:
- allow the Australian Communications Authority (ACA) to regulate
communications with ‘space objects’ more broadly defined than those currently
defined as ‘Australian satellites’ for the purposes of the Act;
- enable the ACA and the Australian Broadcasting Authority to make
an agreement allowing the ACA to issue radiocommunications licences in the
broadcasting services bands;
- allow the Minister to limit to zero the amount of spectrum
specified persons may acquire;
- require that a frequency assignment certificate states clearly
that apparatus licences are only issued after correct frequency coordination
have been followed;
- enable the ACA to delegate the power to issue certificates of
proficiency to persons who have become qualified operators of transmitters (new
subsection 122A(1)
- ensure that when a licence is renewed, it commences from the time
of expiry;
-
ensure that the ACA may make conditions relating to matters
existing or arising at, before or after the time of accreditation;
- require that all relevant documents relating to products’
standards be produced for inspection by the ACA;
- enable the ACA to determine that bodies conducting approved
examinations, issuing certificates of proficiency, and performing accreditation
and approving functions may charge for the services they provide to users of
telecommunications services;
- simplify and reduce penalties payable in lieu of prosecution for
offences committed under the Act, and allow a penalty in lieu of prosecution to
be imposed on a manufacturer or importer who fails to meet requirements
including retaining appropriate records concerning a device covered by
mandatory standards;
- ensure that licence tax instalments are due on the anniversary of
the date the licence commenced rather than on the anniversary of the date of
issue.
The Radiocommunications (Receiver Licence Tax) Amendment
Bill 1999 and the Radiocommunications (Transmitter Licence Tax) Amendment Bill
1999 make the amendments necessary to ensure that in future the relevant
licence taxes will be calculated directly by reference to the periods for which
the licences are effective.
Scrutiny of Bills Committee Report
The Committee notes that the Scrutiny of Bills Committee
noted two concerns with the Radiocommunications Legislation Amendment Bill 1999
in its Alert Digest No. 3 of 1999 and reported on the Minister for
Communications, Information Technology and the Arts’ responses to its letters
on those concerns in its Fifth Report of 1999.
The Scrutiny of Bills Committee sought the Minister’s advice
in relation to proposed new subsection 122A(1). That amendment would allow the
Australian Communications Authority (ACA) to delegate the power to issue
certificates of proficiency in the operation of a specified class of
transmitters to a “body or organisation” with no further limit or qualification
on the categories of potential delegates.
In response to the Scrutiny of Bills Committee’s letter, the
Minister pointed out that since the ACA must act in a manner consistent with
the spirit of the Australian Communications Authority Act 1997, it would
be unlikely to use its powers of delegation inappropriately. The Minister also
considered that since the ACA must report its actions to the Minister, its
powers of delegation are subject to ministerial review, which constituted
‘sufficient oversight’ in his view.
The Scrutiny of Bills Committee also pointed to item 1 of
Schedule 3 to the bill which states that amendments to be made by items 8 and 9
of Schedule 2 (to ensure that Australia was able to assert its taxing rights
over income from the use of spectrum licences owned by non-residents) would
apply from 11 March 1998, the date the Treasurer issued a press release to that
effect. The Scrutiny of Bills Committee pointed to the fact that since more
than 6 months have elapsed since the press release was issued, the Senate’s
resolution of 8 November 1988 might apply.
The Senate’s Resolution states that:
Where the Government has announced, by press release, its
intention to introduce a Bill to amend taxation law, and that Bill has not been
introduced into the Parliament or made available by way of publication of a
draft Bill within 6 calendar months after the date of the announcement, the
Senate shall, subject to any further resolution, amend the Bill to provide that
the commencement date of the Bill shall be a date that is no earlier than
either the date of introduction of the Bill into the Parliament or the date of
publication of the draft Bill.[2]
In response to the Scrutiny of Bills Committee’s letter on
this matter, the Minister advised that he had sought the advice of the
Treasurer who had replied that it was “desirable to maintain the date of effect
at 11 March 1998 to preclude problems of tax avoidance” by owners of spectrum
licences. Since none of the spectrum licences have been used to date, the
Scrutiny of Bills Committee did not find the reason given sufficient for the
Senate to fail to apply the terms of its resolution of 8 November 1988.[3]
This Committee’s Inquiry
The Senate Environment, Communications, Information
Technology and the Arts Committee advertised its inquiry in The Australian and
The Australian Financial Review and wrote to a number of organisations
with an interest in the radiocommunications industry inviting submissions. The
Committee received 3 submissions, one from the Department of Communications,
Information Technology and the Arts, one from Motorola Australia and one from
J.R.D. Communications Proprietary Limited.
Meetings
The Committee considered the Bill and the issues raised in
submissions at 2 private meetings. It decided not to hold a public hearing.
However, the Committee contacted the three organisations that had sent in
submissions to offer them the opportunity to make further written comment on
the bills. Committee members also asked the Department of Communications,
Information Technology and the Arts to answer a number of specific questions.
The answers to those questions are at Appendix 1.
The Issues
In its submission, Motorola was supportive of the amendments
proposed in the Radiocommunications Legislation Amendment Bill 1999 stating:
Motorola Australia gives wholehearted support to the proposed
amendments and can state that their effect will be to expedite our plans to
expand our trunked radio systems and offer a wider range of services to many
more members of the community.[4]
Motorola’s main concern was with the issue of sharing
broadcasting spectrum with radiocommunications services. It supports the
amendments proposed in the Bill (Schedule 2, sections 3,4,5 and 10) which it
believes “will greatly facilitate the sharing of Television spectrum and
provide an expansion path for (our) trunked radio systems.[5]
The Department of Communications, Information Technology and
the Arts (DOCITA) explained in its submission that under the current
legislative framework there are restrictions on sharing spectrum in spite of
the fact that:
There are a number of radiocommunications services that can
share broadcasting spectrum without any risk of interfering with broadcasting
services.
In DOCITA’s view, the current bill would improve the
situation:
The proposed amendments will allow the ACA and the ABA to make
written agreements allowing the licensing of other radiocommunications services
in the broadcasting services bands. They will also provide a mechanism for
cancelling such agreements. This will provide greater certainty to the
marketplace by providing criteria under which any agreement reached between the
ACA and the ABA may subsequently be revoked.[6]
J.R.D. Communications Proprietary Limited’s main concern was
with Subsection 100(4A) of the proposed legislation. It sought an assurance
that:
In the event that the existing and new licences have both been
allocated in accordance with ‘correct frequency coordination procedure under
section 266A of the Act” ... the rights of the existing licence holder, who may
well have considerable financial investment in communications infrastructure
and a responsibility of service to his clients, must take precedence in the
real event of “unacceptable” interference, without the need to resort to
expensive Civil litigation.[7]
J.R.D. would like the ACA to maintain a role in “policing”
the spectrum and in resolving any dispute that might arise. In discussions with
the Committee, officers of the Department of Communications, Information
Technology and the Arts stated that in their view, the incumbents have priority
to the frequency being used and any new entrant will have to co-ordinate with
the existing players to eliminate interference.[8]
Conclusion
In view of the fact that no more than 3 submissions were
received to this inquiry, the Committee concludes that the consultation process
with the industry was conducted satisfactorily and that the amendments proposed
in the bills are supported by the majority of players in the
radiocommunications industry. Accordingly,
The Committee recommends to the Senate that the Bills
proceed.
Senator Alan Eggleston
Chair
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