Chapter 2

Issues

2.1        A number of matters, including privacy issues and concerns about interference with terrestrial television transmissions, were raised in relation to the bill and these are discussed below.

Part 1 of the Bill – Information Sharing Provisions

2.2        Some submissions raised concerns about the consequences of the new information sharing arrangements created by the bill for personal privacy, and the committee put some of these concerns to DCITA and ACMA, seeking clarification.

Application of the Privacy Act and the Information Privacy Principles

2.3        One area affected by the information sharing provisions of the bill is the provision of information to, and by, ACMA and the Minister. Telstra argued that essentially any authorised disclosure information can be disclosed to the Minister or secretary of the department or an authorised departmental employee. Telstra suggested that a higher threshold should be placed on disclosure of information to Ministers or their advisors under sections 59A(2) and 59B(2) of the bill.[1] The committee sought information from the department on how the Privacy Act 1988 (Cth) and the Information Privacy Principles will apply to ACMA and the Minister under the bill.

2.4        DCITA stated that ACMA and the Minister are bound by the Privacy Act, which provides a framework for the collection, maintenance and disclosure of personal information collected by all government agencies. 

2.5        That Act lays down strict safeguards which 'agencies' must observe in their dealings with personal information. 'Agency' is defined in section 6 to include, inter alia, Ministers, departments (that is, each 'agency' within the meaning of the Public Service Act 1999) and certain bodies established for a public purpose by or under a Commonwealth enactment. The Act applies to ACMA and the Minister in the same way as it applies to other agencies.[2]

2.6        The department observed that the provisions of this bill will not override the protections provided by the Privacy Act as it applies to personal information (including the Information Privacy Principles contained in that Act). DCITA noted that:

Other than creating an authorised exemption in prescribed circumstances, it is not intended that the disclosure provisions included in the Bill should otherwise affect the application of Information Privacy Principles contained in the Privacy Act 1988.[3]

Section 3 – 'authorised disclosure information'

2.7        Section 3 would insert a new definition, 'authorised disclosure information', into section 3 of the Australian Communications and Media Authority Act 2005. As discussed in chapter 1, the definition sets out a number of categories of information that fall within the meaning of 'authorised disclosure information'. The Explanatory Memorandum stated that while the majority of 'authorised disclosure information' would be commercial in nature, to the extent that such information includes 'personal information', as defined in section 6 of the Privacy Act, the provisions of that Act will apply.[4]

2.8        The Office of the Privacy Commissioner (OPC) and the Victorian Privacy Commissioner argued that reference to the definition of 'personal information' that is also 'authorised disclosure information' and compliance with the Privacy Act should be included in the bill.[5] 

2.9        DCITA noted that advice provided to the department by the Office of the Parliamentary Counsel in drafting the Bill was that a specific provision noting the continued application of the Privacy Act 1988 would simply re-state the law and 'would therefore not be necessary (or indeed preferable from a legislative drafting perspective)': 

The Privacy Act 1988 will continue to apply to ACMA and the information it collects regardless of whether or not the Bill specifically notes its continued application or makes reference to the definition of 'personal information' as defined in the Privacy Act 1988. [6]

2.10      The OPC argued that, for 'authorised disclosure information':

• consideration be given to expressly excluding personal information from being authorised disclosure information (as the majority of 'authorised disclosure information' will be commercial in nature); or
• the bill be amended to provide that, where personal information is disclosed, those disclosures are made to jurisdictions that are assessed in ACMA's view, to be subject to a law, binding scheme or contract which upholds principles for fair handling of the information that are substantially similar to the Information Privacy Principles.[7]

2.11      DCITA noted that while the majority of information is likely to be commercial in nature some of ACMA’s regulatory functions are likely to result in the collection of personal information:

There are likely to be instances in which this information is of potential benefit to other regulatory entities in performing their duties and functions and it would therefore be counterproductive to exclude 'personal information' from the definition of 'authorise disclosure information'.

2.12      In relation to the suggestion that disclosure of personal information to regulatory entities in other jurisdictions only be permitted where appropriate privacy protections are in place in that other jurisdiction, DCITA noted that it is envisaged that the majority of 'authorised disclosure information' will be commercial in nature: 

In the limited circumstances in which 'authorised disclosure information' includes 'personal information', it should be noted that sharing of that information will only be permitted in circumstances where the ACMA Chairman is satisfied that the information will assist or enable the other party to perform any of its functions or exercise any of its powers.[8] 

2.13      DCITA also noted that:

Often most international jurisdictions that we would change information with have developed similar systems to our own, but they are not necessarily going to sign up to ours. It is on the basis that the level of information exchange is much more in our favour than theirs, so the matter of leverage we would generate would be a lot less. So we would prefer to leave the flexibility with the chair to determine the basis of the change.[9]

2.14        DCITA noted that the bill also makes provision for the Chairman of ACMA to impose conditions to be complied with in relation to the disclosure of information and it is envisaged that this will include conditions addressing the treatment and protection of any personal information:

The Department believes that these measures, particularly when it is considered that the majority of 'authorised disclosure information' will be commercial in nature, provide an effective balance between the objectives of the Bill and the need to ensure appropriate controls are in place on potentially sensitive information.[10]

2.15      The ABC and FreeTV Australia argued that the bill should specify that, in circumstances where ACMA discloses authorised disclosure information that has been provided to it on a confidential basis to another entity, ACMA must impose a condition on the recipient entity that it not further disclose the information.[11]  

2.16      The department, argued, however, 'we are [of] the view that the Bill already includes adequate protection through the inclusion of a provision for the ACMA Chairman to place conditions on recipient entities'.[12]

2.17      DCITA stated that:

....when ACMA is given information in the commercial in confidence context it imposes that requirement [of no further disclosure] when it exchanges with somebody else. Again, in the cases where ACMA exchanges commercial in confidence information it is only with agencies that have a direct responsibility in relation to that information, so it is typically agencies like the ACCC. They will use it in that context and, where necessary, the chair can impose a requirement but we think it is for the chair to decide the nature of the information.[13]

DCITA also noted that the ACCC and ACMA have already publicly signalled their intention to work together to develop guidelines for the handling of shared information. 

Section 59F – disclosure of publicly available information

2.18      Clause 59F provides that an ACMA official may disclose authorised disclosure information if that information is already publicly available.

2.19      The Victorian Privacy Commissioner noted that 'publicly available information' is not defined in the bill and in its current form is 'extremely broad'. The Commissioner argued that the wording be amended to refer to a 'generally available publication' and that 'generally available publication' be defined in the bill.[14]

2.20      The department considered that the intention of this section is clearly expressed – 'this section clarifies that information that is already in the public domain may be disclosed by an ACMA official and has been included for the avoidance of doubt'. DCITA noted that the term 'publicly available' can be sufficiently understood through its ordinary meaning and that no express definition is required.[15]

2.21      The OPC argued that consideration should be given to excluding personal information from the operation of clause 59F.[16] DCITA stated that it did not consider exclusion of personal information from the operation of this clause is warranted: 

...it is envisaged that the majority of information ACMA is likely to share with other entities will be commercial in nature. Accordingly, it is envisaged that proposed new section 59F will primarily apply to information that is commercial in nature that is already publicly available.  This will provide certainty for ACMA in its dealings with information, such as business structures and commercial offerings, which are already in the public domain.[17]

Section 59H – disclosure authorised by regulations

2.22      Clause 59H provides for the regulations to authorise an ACMA official to disclose authorised disclosure information in specified circumstances, and to provide that the Chair may, in writing, impose conditions to be complied with in relation to disclosure in those circumstances.

2.23      The OPC argued that regulation making powers under this clause should expressly provide for the privacy of individuals to be a matter of consideration for the Chair of ACMA and that the process include consultation with the Privacy Commissioner.[18]  

2.24      The department stated, however, that the bill as currently drafted provides 'sufficient scope' for the consideration of privacy matters.  In addition, the department again emphasised the highly limited circumstances in which 'authorised disclosure information' is expected to include personal information.[19]

2.25      The Victorian Privacy Commissioner argued that the 'specified circumstances' envisaged by this clause should be clearly expressed in the bill and that the disclosure of authorised disclosure information that is also personal information should be excluded from this provision.[20]

2.26      DCITA noted that the reference to 'specified circumstances' in proposed new section 59H is deliberately broad:

The regulation-making power has been drafted in this way, to address future circumstances in which there may be a legitimate interest in ACMA sharing information, but which are not covered by the existing provisions.[21] 

The department stated that the exclusion of personal information from the operation of this provision would not be consistent with the objectives of the bill.

Part 2 of the Bill – Datacasting Provisions

Protection against interference to existing services from changes to frequencies for datacasting transmitter licences

2.27      Items 6 and 7 would amend paragraph 111(1)(d) of the Radiocommunications  Act to enable ACMA to vary spectrum frequencies specified in a datacasting transmitter licence (DTL).

2.28      The ABC argued that the proposed amendments to paragraph 111(1)(d) do not provide an adequate means of protecting terrestrial television transmissions from interference from Channel B mobile television services. The ABC suggested that thorough planning of the channels allocated to Channel B licences of the kind applied to the television services in adjacent channels is required.[22] Free TV also agued that the introduction of new services into the broadcasting services bands must be comprehensively planned to avoid interference from the outset.[23]

2.29      ACMA responded that:

...the entire planning process around planning for television channels is in fact fairly robust and is designed to prevent as far as possible interference happening and to put in place procedures for dealing with the problem should such problems arise. ACMA has been very clear in our consultative processes that we have been quite strongly committed to making sure that channel B will not actually interfere with any existing television services.[24]

2.30      DCITA stated that the proposed provisions are a technical amendment which would allow ACMA to have greater flexibility in future planning and use of spectrum used for DTLs: 

Whilst interference issues may be one issue which would require a change in frequency for a DTL, they are not the only issue and the primary purpose of the amendments is not interference mitigation per se.[25]

2.31      DCITA further stated that:

The amendment really is a very technical amendment which is designed to give ACMA the kind of ability to, for example, reallocate frequencies for an apparatus licence which is what the datacasting transmitter licence is a form of. At the moment it is the only class of licence and there was no particular policy reason behind this, it is the way the legislation was drafted, it is the only category of apparatus licence which ACMA does not have the ability to change a frequency for after it is allocated. At the moment it allocates a frequency to the licence when it allocates and that is then essentially locked in and ACMA does not have any ability to change it.[26]

2.32      The department further noted that there are already provisions relating to management of interference. The Technical Planning Guidelines (TPGs) made under section 33 of the BSA are specifically designed to guard against interference with existing television services, by minimising the likelihood of interference occurring and providing a means of appropriately managing any interference that does occur. The TPGs set out rules relevant to the planning and commencement of broadcasting services and services operating under a DTL.[27]

2.33      The TPGs contain mandatory technical requirements to be met by commercial, community (including temporary community) and datacasting transmitter licensees using the broadcasting services bands, when planning and operating new transmission facilities or proposing changes to existing facilities. Paragraph 109A(1)(f) of the Radiocommunications Act requires a licensee of a DTL to comply with the TPGs. If interference with television reception does occur, the DTL licensee transmitting the interfering service must take immediate action to prevent the interference.[28]

Planning processes for the allocation or variation of frequencies

2.34      FreeTV Australia argued that it is important that the introduction of mobile television services in Channel B is carefully planned to ensure the new mobile services do not compromise the availability and quality of free-to-air digital terrestrial television services and disrupt the smooth transition to digital television services for Australian viewers. FreeTV argued that the proposed amendments to the Radiocommunications Act should be revised to require ACMA to undertake a planning process for the allocation or variation of frequencies for datacasting services, consistent with the existing approach for broadcasting services.[29] Telstra noted the potential costs involved providing a mobile TV service.[30] Free TV argued that in the current bill ACMA is not required to undertake any planning or prior consultation before making changes to frequencies for channel A and channel B licensees.[31]

2.35      DCITA stated that the amendments to the bill do not reduce the need for consultation in relation to changes to frequencies in relation to DTLs. The legislation 'simply empowers ACMA to make these changes after the licence is issued':

A power enabling ACMA to change frequency allocations after the issue of a licence already exist in relation to transmitter licences for broadcasting services...The amendments make the situation in relation to DTLs consistent with the situation for transmitter licences for these broadcasting services.[32]

2.36      The department noted that ACMA already plans channels for digital television in Digital Channel Plans (DCPs) which are subject to consultation requirements.  ACMA would, in the case of significant changes to frequencies, conduct a public consultation process as a matter of course as a consequence of these frequency allocations being part of the DCPs. 

2.37      ACMA noted that:

All this amendment really does is bring the DTL arrangements into line with all of the other planning arrangements for other licences. There are processes in place for consultation. Free TV has not criticised our processes in the past for any other licences.

...Free TV actually said we had consulted with them a lot—fully in relation to the construction of the existing digital channel plan. There has been no move to amend the digital channel plan at all and were there to be, we would consult.

Senator CONROY—I think they were suggesting that there is an existing framework that did not apply to channel B.

Mr Loney—I think that might be where we disagree with Free TV.[33]

2.38      DCITA stated that although digital channels not relating to the conversion of analog television services do not need to be planned in a DCP (though they may be), ACMA would only undertake such planning without consultation with relevant stakeholders if it were satisfied that there was a low risk of interference:

ACMA's usual practice is to conduct public consultation. In any event, ACMA is required to comply with the objects of the Acts it administers. ACMA recognises the importance of existing free-to-air television services and will continue to ensure that there are appropriate safeguards in place.[34]

2.39      DCITA advised the committee that ACMA has undertaken a significant amount of analysis and planning in relation to mobile television use of Channel B. ACMA has also conducted public consultation on the frequencies that could be used for the licences for Channel B, the technical arrangements, the approach to planning and interference management. This consultation has included the release of discussion papers in March and December 2006 as well as specific consultation on the changes to the Technical Planning Guidelines.[35]

Conclusion

2.40      The committee is satisfied with the bill as a whole. The committee believes the amendments in the bill in relation to information sharing will provide ACMA with an appropriate level of certainty and enhance the efficiency of the regulator's enforcement activities. The committee also supports the provisions relating to the Government's decisions concerning Channel A and Channel B datacasting transmitter licences.

2.41      The committee recognises the need, emphasised by the ABC and FreeTV, for careful planning to precede the introduction of mobile television services. The committee is confident that DCITA and ACMA are committed to processes that will ensure successful implementation in this area, and that this bill is just one element of preparation for decisions in relation to Channels A and B.

Recommendation 1

2.42      The committee recommends that the bill be passed.

 

Senator Alan Eggleston
Chair

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