2.1
This chapter examines the key issues raised in evidence received by the committee. The committee acknowledges that these bills constitute a signification reform package and, due to the relatively short inquiry timeframe, the focus of its report is on the key issues raised during the examination of the Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 (the Reform and Modernisation Bill).
2.2
The chapter first sets out the broad support for the Reform and Modernisation Bill. This includes the positive response from many stakeholders to the Reform and Modernisation Bill's provisions for continuing the government's reform agenda, which adds greater flexibility and ensures that the Radiocommunications Act 1992 (the Act) remains fit for purpose in a rapidly changing environment.
2.3
The chapter then outlines evidence that raised concerns about key aspects of the Reform and Modernisation Bill including:
the licence renewal application period;
the definition of the 'public interest test';
the objective of the Act;
the information gathering powers of the Australian Media and Communications Authority (the ACMA); and
ministerial policy statements and annual work program.
2.4
Finally, this chapter sets out the committee view and recommendation.
Support for the Reform and Modernisation Bill
2.5
Evidence received by the committee supported the Reform and Modernisation Bill's intention to add flexibility to the legislative framework, remove unnecessary prescription and legislative barriers, and improve processes to help the framework remain fit for purpose. Support was received across a range of sectors, including from the telecommunications industry and community and government broadcasters.
2.6
The committee notes that a number of witnesses recognised the performance of the Department of Infrastructure, Transport, Regional Development and Communications (the department), the ACMA and the Hon. Paul Fletcher MP in bringing this suite of bills to the Parliament. Many stakeholders commented favourably on the consultation process conducted by the government that shaped the development of the Reform and Modernisation Bill. The Australian Mobile Telecommunications Association (AMTA) stated that:
…[t]his Bill is the result of a comprehensive consultation process conducted by the Department of Communications over several years and that the proposed reforms will establish the foundations for a modern and fit-for-purpose legislative framework for spectrum management in Australia.
2.7
The Community Broadcasting Association of Australia (CBAA) submitted that it has 'had long term constructive involvement with the departmental, industry and public policy considerations and consultations leading to this point'. The CBAA also acknowledged that the department is open to contact and discussion with stakeholders where any additional information or clarification in needed.
2.8
Submitters were also broadly supportive of the government's reform process. For example, the Communications Alliance stated that the Reform and Modernisation Bill is as an important opportunity to modernise and streamline interaction with the legal process required of industry stakeholders.
2.9
Similarly, Mr Chris Althaus, Chief Executive Officer, AMTA, highlighted the importance of spectrum reform for mobile telecommunications. In evidence to the committee, Mr Althaus said:
In the last three decades there has been no better example of the changing demand and dynamics in the spectrum market than mobile telecommunications. Australia is without doubt a mobile nation. There are 10 million more active mobile subscriptions in Australia than there are people…
Notably, the rise of smartphones and mobile broadband, and now 5G, has embedded mobile connectivity in our lives—a reality most prominently featured during the COVID pandemic, as our reliance on networks and connectivity, both fixed and mobile, dominated our personal and professional lives. From a mobile point of view, it all depends on spectrum. The 1992 Radiocommunications Act has served us well but it's overdue for an update to better reflect market conditions and the market conditions it serves.
2.10
Telstra supported the Reform and Modernisation Bill and strongly encouraged the passage of the suite of bills as they 'contain reforms urgently needed by the communications industry to support timely investment in 5G and other new wireless technologies'. Telstra added that:
To avoid further delays in introducing the benefits of the Bills we are keen to see them complete passage through Parliament this calendar year. If that means not all of the recommendations of the Committee can be implemented within the available time, we would prefer the Bills to be passed with those recommendations excluded, rather than further delay this tranche of reforms.
2.11
Mr John Stanton, Chief Executive Officer, Communications Alliance, in giving evidence to the committee, emphasised the importance of satellite communication in Australia. In its submission, the Communications Alliance supported the Reform and Modernisation Bill and stated that:
The proposed amendments to the Radiocommunications Act 1992 create some timely and significant changes to apparatus licence tenure. These recognise the reality of investment in the satellite industry and, if implemented, will go a long way to delivering the assurance required by the industry when planning for long-term investment in Australia.
2.12
The Special Broadcasting Service (SBS) noted that spectrum is an essential infrastructure asset, having a wide range of uses across the Australian economy and is vital to the SBS for both receiving and delivering content for the benefit of Australian audiences.
2.13
Similarly, the Australian Broadcasting Corporation (ABC) noted that spectrum is a critical and scarce public resource vital for the delivery of a range of downstream broadcasting and telecommunications services. The ABC acknowledged the importance of updating and modernising the Act 'to ensure it remains fit-for-purpose in the modern media and technology environment'.
2.14
The ACMA submitted that there are 170,000 radiocommunications licences on issue and that demand for new spectrum and changes to existing arrangements for licensees continues to evolve quickly, especially given ongoing innovation in the area.
2.15
Mr Althaus, AMTA, told the committee that '[t]his reform has taken some time, but it's now time to get this bill into operation'. However, he also cautioned that the legislation 'should not been seen as a 'set and forget'. This isn't "job done"'.
2.16
Under the provisions in the bills, there will continue to be a licencing regime that consists of spectrum licences, apparatus licences and/or a mix of both in any given band of spectrum. The Communications Alliance submitted that it would support the continuation of this arrangement. Furthermore, the department noted that movement to a single licensing system would be onerous, would introduce inefficiencies for both spectrum users and the ACMA, and would in effect require the establishment of two parallel licensing regimes. The department therefore supported continuing with a mixed licensing regime, despite earlier suggestions that a single licensing system might be viable.
2.17
Ms Rachel Blackwood, Assistant Secretary, Spectrum and Telecommunications Deployment Policy Branch, the department, told the committee that consultation on the Reform and Modernisation Bill has focused on priority reforms, working with the ACMA and industry but that the department will continue 'to have a conversation with stakeholders about potential further advice to government over time about possible additional changes'.
2.18
The Reform and Modernisation Bill also proposes to give the ACMA new exemption powers, which are intended to facilitate development, testing and manufacturing of equipment (including equipment that is subject to an interim or permanent ban). These exemption provisions would allow the ACMA to facilitate domestic manufacturing of radiocommunications equipment. They would also allow for research and development opportunities, for example, in the defence industry and technology sectors.
2.19
Regarding the utilisation of spectrum for defence and/or national security interests, it was confirmed at the committee's public hearing that such concerns would be taken into account by the ACMA in its decision-making. The ACMA said that arrangements were in place to allow for scenarios such as defence exercises underway and the usage of particular equipment for the purposes of relevant exercises.
Concerns raised
2.20
As outlined above, evidence received by the committee was broadly supportive of the suite of bills. However, stakeholders raised some concerns with the Reform and Modernisation Bill, including:
the licence renewal application period;
the definition of the 'public interest test';
the objective of the Act;
the information gathering powers of the ACMA; and
ministerial policy statements and annual work program.
Licensing arrangements
2.21
This section considers issues raised by submitters around licensing arrangements, which primarily relate to the licence renewal process. Under the proposed arrangements in the Reform and Modernisation Bill, the ACMA would gain additional decision-making powers regarding spectrum, apparatus and class licensing that would allow it to:
decide what parts of the spectrum would be available for licensing;
decide what parts of the spectrum would be 're-allocated by issuing spectrum licences, apparatus licences, or both'; and
set allocation limits in relation to the allocation of spectrum or apparatus licences (after consulting with the Australian Competition and Consumer Commission).
2.22
The ACMA would also be able to make decisions about license durations, which have been broadly extended. The ACMA would decide whether a licence ought to be renewed. If the renewal period for a licence is for 10 years or longer, the ACMA would be required to be satisfied that it is in the public interest to renew the licence for that period.
2.23
The ACMA noted that it 'expects to consult further with licensees about licence terms and renewal statements once the [Reform and Modernisation] Bill is passed', indicating that it is open to further negotiation and refinement in this area.
2.24
Mr Stanton, Communications Alliance, noted that the Communications Alliance supported the transition to longer licence durations, stating that '[i]t provides greater certainty, and we think it will generate investment'. Likewise, at the committee's public hearing, Mr Althaus, the AMTA, noted that the industry requires certainty regarding licence renewal.
A clear, transparent and predictable renewal pathway is critical. Spectrum licences are major investments, and not only in terms of securing access to the spectrum itself; that investment underpins an equally significant investment in network infrastructure to deliver services using the spectrum. Spectrum licences are for 15 years—and soon to be 20 years under the reform bill—so these are long-term instruments. With literally billions invested in servicing millions of customers, the process of renewal when a spectrum licence is approaching its end date is a big deal. It's complex and it can take literally years to work through that.
Licence renewal
2.25
The Reform and Modernisation Bill proposes changes to licence length, renewal time and the conditions upon which licences can be issued. The reforms impact both spectrum licences and apparatus licences. Submitters were generally supportive of these changes, but raised concerns relating to the timing of the licence renewal process.
2.26
The provisions of the Reform and Modernisation Bill propose that spectrum licences be issued for a period of up to 20 years. Currently, a spectrum licence can only be issued for a period of up to 15 years. All submitters were supportive of this extension of the licences.
2.27
Regarding the licence renewal process for spectrum licences, the AMTA supported the inclusion of a renewal pathway for spectrum licences, via the proposed process of renewal statements, but submitted that it would like greater certainty around the timelines for this process. The AMTA proposed that this could be achieved by a longer licence renewal process.
We suggest that this could be achieved by having a renewal process that does not start any later than 5 years prior to licence expiry and that the terms of renewal should be finalised 3 years prior to expiry (providing a maximum of 2 years for the renewal decision-making process). After the decision, payment should be possible any time before the expiry date.
2.28
The AMTA's argument that a longer default renewal application period for spectrum licenses is required (five years, instead of the two years as proposed by the Reform and Modernisation Bill) is based on the historical evidence of how long it has taken licensees to exit a band. The AMTA was also concerned that ACMA's decision-making role would also add to the time taken to renew a licence. It is the AMTA's view that:
As currently drafted, the Bill does not allow a reasonable timeframe for licensees to exit spectrum that is not being renewed without causing potentially significant disruption to the services received by customers.
2.29
Mr Althaus expanded on this point at the committee's public hearing, arguing that a five-year application period was more appropriate given the realities of the licencing system. He noted that the licences are a decade in length, involving billions of dollars and millions of customers, and that the process requires a high degree of certainty.
2.30
Telstra also recommended that a longer default license renewal application period should be put in place for both spectrum and apparatus licence types, proposing a default renewal application period of five years for spectrum licences and two years for apparatus licences (as opposed to two years and six months respectively, which is the proposed length of time). Telstra argued that such a short renewal period would not allow it to give sufficient notice to its customers when clearing a band (such as the 3G network) and that, historically, such changes have required four years to occur.
2.31
The AMTA also requested more clarification for the 'specified circumstances' test that would apply to the renewal of certain spectrum licences. The AMTA requested greater clarity regarding what a 'specified circumstance' may constitute, and how it will differ from criteria that forms part of the 'public interest test'. The AMTA further noted that ideally this would be defined within the Reform and Modernisation Bill or Explanatory Memorandum. The AMTA also noted:
…while section 73 has been tightened to only allow variation of the specified circumstances without agreement of the spectrum licence holder and where the ACMA is satisfied that exceptional circumstances exist, this does not placate our concerns that the specified circumstances for renewal may be varied or that the renewal statement can be replaced overall.
2.32
The AMTA expressed a view that consultation should be required for any decision affecting licence renewal and that the ACMA ought to be required to consult with spectrum licensees on any decision affecting licence renewal when determining whether to renew a licence, varying a renewal statement or proposing new conditions on a renewed licence. Furthermore, the AMTA proposed that if the ACMA fails to make a decision on spectrum licence renewal within the decision-making period, then the ACMA ought to be deemed to have accepted the renewal application and the presumption of licence renewal ought to be the default.
2.33
In addition, while the Communications Alliance also supported the general proposed licence duration of 20 years, it proposed that licences with a duration of 10 years or more ought to have a default renewal application period of two years, as opposed to the six months proposed by the Reform and Modernisation Bill. The Communications Alliance argued that this would increase investment certainty for licensees.
2.34
In response to these concerns, the ACMA submitted that the setting of licence terms would take into account a wide range of considerations, including band replanning status, the degree of international harmonisation, the likelihood that spectrum may move to an alternative use, and the budgetary and investment requirements of individual spectrum user. Ms Caruso, General Manager, Communications Infrastructure Division, the ACMA, explained how the proposed changes to the regulatory framework would improve the ACMA's overall ability to allocate spectrum. Ms Caruso stated:
The bill does allow for direct allocation of spectrum. That's not really allowed under the Radiocommunications Act at the moment and that could be of use in the future. I will give examples of how it could be of use. In circumstances where you've only got one licensee to be allocated to spectrum, it would make sense to be able to directly allocate spectrum to that licensee rather than go through what at the moment is a very structured process for spectrum licencing that has involved the minister in designating spectrum for spectrum licencing.
2.35
Regarding the proposed licence variation arrangements, changes to the licence need not be made only as part of the renewal process. Ms Caruso noted that licensees could approach the ACMA in the middle of their licence term and seek to vary the licence, although this was subject to some limitations:
At the moment, if you are a spectrum licensee, there are protections for spectrum licensees in place, and the bill will continue those protections. In a sense, the ACMA cannot willy-nilly change arrangements for a spectrum licensee where they're locked in, but, if a licensee seeks a change from the ACMA and seeks to vary their licence, that is something that we can work with the licensee to do.
2.36
The Reform and Modernisation Bill proposes that the ACMA issue apparatus licences for a period of up to 20 years. At present, an apparatus licence can only be issued for up to five years. The Reform and Modernisation Bill would also enable consideration of enduring limits for administratively-issued apparatus licences, including the capacity to have regard to aggregate spectrum holdings when deciding whether or not to issue or renew an apparatus licence. Submitters were generally satisfied with the proposed changes made to apparatus licences, although the AMTA and Telstra did request that the licence renewal process be extended from the proposed six months to two years.
2.37
Comparable to spectrum licences, the Reform and Modernisation Bill also proposes amendments to the apparatus licence tax legislation. This would enable the ACMA to determine whether licensees of particular classes of apparatus licence pay the licence tax for the licence period entirely upfront or by annual payment.
Trial licences and equipment exemptions
2.38
The Reform and Modernisation Bill proposes that the ACMA be permitted to make equipment rules, which could broaden the range of parties in the equipment supply chain on whom compliance obligations may be imposed. Furthermore, the proposed amendments would give the ACMA new powers to issue temporary bans and recall notices for equipment. The ACMA submitted that these new exemption powers are 'principally intended to facilitate development, testing and manufacturing of equipment (including equipment subject to an interim or permanent ban)' and would 'allow the ACMA to facilitate domestic manufacturing of radiocommunications equipment, and research and development opportunities, for example, in the defence industry and technology sectors'.
2.39
The Communications Alliance submitted that it supported provisions that allow for apparatus licences to be used for scientific and/or trial purposes, but recommends that an extended period of beyond one year would be warranted in this area. It further noted that the determination of technical regulation requirements through equipment rules would reduce the burden on suppliers and manufacturers.
Public interest test
2.40
The provisions of the Reform and Modernisation Bill would introduce a public interest test for licence renewals of 10 years or more and for renewals where a public interest statement has been included in the licence. The purpose of such a test is to prevent spectrum being locked up in uses that are no longer considered the highest value use. The Communications Alliance submitted that it is concerned that this consideration may not be balanced against 'the high upfront and long-lasting investments that are typically made – especially in the satellite sector – for the provision of valuable services to the public'. The Communications Alliance suggested that a market testing model is not appropriate, as satellite spectrum can be reused and re-licensed in the same spectrum space numerous times by different operators.
2.41
Commpete also suggested that the ACMA consider competition issues as part of its administration of the radiocommunications licensing regime, proposing an explicit competition objective in order to recognise this element. Commpete suggested that an explicit competition objective—consistent with the Competition and Consumer Act 2010—could be incorporated into section 3 of the Act, as opposed to 'leaving competition as a discretionary consideration mentioned only in the Explanatory Memorandum'.
National broadcasters
2.42
The SBS proposed that the public interest test for applications and renewals, as outlined in section 103A(15) of the Reform and Modernisation Bill in relation to apparatus licences, ought to be further clarified. The SBS proposed that 'national broadcasting' be explicitly inserted into the public and community services' category, as public broadcasters use spectrum to supply essential public services and are therefore 'inherently in the public interest'. The SBS argued that it should be exempt from the public interest test when applying for new licences or the renewal of existing licences. It stated:
provides an essential public service, through the provision of broadcasting under the SBS Act, which demonstrates the services it provides are clearly in the public interest.
2.43
The ABC also submitted that the term public interest is not adequately defined in the Reform and Modernisation Bill and that it would not adequately recognise non-commercial entities. The ABC suggested that, given the importance of spectrum for non-commercial users, 'the Bill would be considerably strengthened by the introduction of a mechanism to provide clarity and certainty about how the ACMA will determine what constitutes the public interest'.
2.44
Mr Bowman, ABC, further elaborated that the ABC was not of the view that it ought to be regarded over other broadcasters in this space, rather that the nature of public broadcasting warranted particular attention:
The ABC would submit that the needs of the ABC are one of the factors that should be taken into account when it comes to making these decisions. We shouldn't be given primacy, but by the same token we should not have zero consideration either. There needs to be a balance. We would submit that appropriate inclusion in the legislation would help strike that balance, as would a definition of 'public interest'.
2.45
In response to the concerns raised by both the ABC and the SBS, Ms Blackwood, the department, stated that the department felt confident that the new radiocommunications regime would not disrupt the operations of national broadcasters and broadcasters more generally. Further to this, Ms Caruso, representing the ACMA, noted that the national broadcasters were already sufficiently protected under other pieces of legislation:
…under the provisions of the Broadcasting Services Act there's essentially a carve-out for the national broadcasters to get access to the spectrum. The minister can reserve spectrum for the national broadcasters and, as Ms Blackwood said, those provisions are not being changed at all. The ACMA would need to have regard to those other pieces of legislation and essentially the rights that accrue to the national broadcasters under the Broadcasting Services Act. That exists independently. We would have to have regard to those other pieces of legislation. For the national broadcasters, there are particular provisions reserving spectrum for the national broadcasters under the BSA.
Object of the Act
2.46
The Reform and Modernisation Bill proposes to amend the object of the Act and replace it with a new, simpler object to promote the long-term public interest derived from the use of spectrum. The ACMA submitted that the proposed new object of the Act would facilitate both commercial and
non-commercial uses of spectrum and would support the communications policy objectives of the government.
2.47
The ABC submitted that while there are conceptual and practical benefits in clarifying the overarching object of the Act, it is important that the aims reference both the commercial and non-commercial uses of spectrum. It stated that the proposed object of the Act should explicitly include the term 'national broadcasting purposes' as one of the non-commercial uses of the spectrum to highlight the importance of public broadcasting.
2.48
Similarly, Ms Natasha Eves, External Affairs Manager, SBS, told the committee that clarification was required to recognise national broadcasting in the objective of the Act. Both the ABC and SBS told the committee that national broadcasting could either be defined in the object of the Act or through the public interest test, but the preference would be for it to be defined in both.
2.49
Some concerns were raised about whether the proposed changes to the object of the Act could also impact community broadcasters. The CBAA told the committee that 'it would seem wise that the word 'broadcasting' be significantly mentioned in the object of this act'.
2.50
Responding to concerns regarding adding specific references to the object of the Act, the department stated that:
…a decision was taken that, consistent with the principle of leaving the object high level, we would avoid calling out too many specific users and thereby creating, almost unintentionally, what might be seen as an exhaustive list, rather than leaving it high level and allowing for a range of different users to fall within that category of non-commercial uses of the spectrum.
The role of the ACMA
2.51
The Reform and Modernisation Bill proposes to expand the role of the ACMA to provide additional powers to manage the use of spectrum. The ACMA's submission stated that:
The Bill amendments propose to decriminalise some prohibitions under the Act, and to introduce a civil penalties regime, along with the power to give remedial directions.
2.52
The ACMA noted that these provisions would help it when conducting investigations, as part of the new civil penalties regime that was described above:
These provisions would assist the ACMA in both planning for spectrum use and in conducting investigations. The ACMA's experience is that information gathering powers are particularly important where this a wide and diverse variety of parties involved in the market.
2.53
However, both the ABC and the SBS were concerned by the proposed introduction of these new information gathering powers. The ABC submitted that while it does not object to the concept of new information gathering powers for the ACMA in order to better manage issues with respect to interference or health and safety concerns, it was concerned that these powers were overreaching.
…as drafted, the powers appear to go well beyond these matters and would enable the ACMA to request information from spectrum holders about future or planned uses of spectrum. There is a risk that this could force the ABC to disclose commercially sensitive information. The ABC submits that these information-gathering powers should be narrowed in order to avoid this risk.
2.54
Likewise, the SBS was concerned that the scope of the proposed information gathering powers outlined in Schedule 7 of the Reform and Modernisation Bill could require the SBS to provide sensitive or confidential information regarding potential future uses of spectrum, which may be commercially sensitive. It requested that such powers ought to be reduced or narrowed to avoid this outcome.
2.55
Further, the SBS was concerned that, as currently written, the proposed information gathering powers could have an impact on their commercial practices:
SBS would be concerned if these information gathering powers, including those relating to future spectrum uses, were used in a way that compromises the independent decision making of the national broadcasters in discharging their obligations under their respective enabling Acts. Decisions regarding the appropriate use of spectrum, including future uses of spectrum, may be made across a range of time frames, and for different reasons. Disclosure of information about these uses may also have an adverse impact on commercial negotiations.
2.56
The SBS noted that it is already required to keep the responsible Minister informed about its activities under section 19(1)(a) of the Public Governance, Performance and Accountability Act 2013, and that the ACMA's proposed new powers may unnecessarily replicate this requirement:
Use of the ACMA's information-gathering powers relating to future or potential uses of spectrum may duplicate this requirement to the extent that it requires advance notice of an intention to make a significant decision in relation to SBS's use of spectrum.
The current arrangements for the national broadcasters balance the need to keep Government informed about the use of spectrum with the appropriate legislative independence. This requirement should be amended to preserve the current arrangements which enable SBS to use its allocated spectrum at its discretion, in discharging its obligations under the SBS Act.
2.57
The SBS was also concerned by the ACMA's proposed new powers to investigate and act on issues that include spectrum interference. SBS submitted that it would not be reasonable for the costs of the ACMA's dispute resolution processes to fall on a broadcaster:
…it would not be reasonable to impose costs on a broadcaster impacted by interference for any action the ACMA takes to resolve the dispute. The costs of interference management should fall to the at-fault spectrum users, whether the costs are part of a civil or criminal contravention. Interference resolution must also be enforced by an appropriate authority.
2.58
At the committee's public hearing, the committee raised this issue with both the ABC and the SBS, seeking information on whether the proposed new powers could compromise the independent decision-making of the national broadcasters. Ms O'Neil, Director, Corporate Affairs, SBS, noted that the SBS was already bound by the Public Governance, Performance and Accountability Act 2013 to keep the responsible minister informed of SBS's activities. Ms O'Neil further noted that SBS was particularly concerned regarding how the information gathering powers may cause difficulties with the SBS's commercial activities.
2.59
In response to these concerns, Ms Caruso, the ACMA, noted that the information gathering provisions in the Reform and Modernisation Bill are 'fairly tightly construed to the ACMA's planning, compliance, enforcement and investigation functions' and further explained that the ACMA is bound by the Privacy Act 1988 with regard to these matters:
As a Commonwealth agency, there are those normal obligations that apply to—the Privacy Act applies, I'll say, general disclosure provisions. So, where information is given to us in confidence, it is treated in that form. We engage with many licensees on their commercial interests, and that information is treated with due respect. So I'd say that it's the full range of the Commonwealth's information and privacy provisions that applies to ACMA generally, as a regulatory agency in the Commonwealth.
2.60
Regarding the overall proposed additions to the ACMA's powers, the ACMA views these changes as a proportionate set of powers and submits that such a civil penalty regime would be better suited to managing unintentional spectrum interference. The ACMA also noted that these proposed new powers would decriminalise unnecessarily punitive provisions and allow the ACMA to have access to a wider suite of compliance tools, which could be used on an as-needed basis. The ACMA noted that the proposed new powers were very welcome, as previously the ACMA had been somewhat curtailed in its enforcement activities.
Ministerial policy statements and annual work program
2.61
The Reform and Modernisation Bill would introduce two new means of clarifying the roles and responsibilities of the Minister for Communications, Cyber Safety and the Arts in setting government policy and the regulator in implementing that policy. This includes ministerial policy statements and an annual work program.
2.62
Under the current Act, the Minister has the power to reserve spectrum capacity for community and national broadcasting services under the Broadcasting Services Act 1992 (BSA). Some concerns were raised from stakeholders regarding potential disruption to these allocations by a minister through a ministerial policy statement.
2.63
The department said that the Reform and Modernisation Bill does not intend to disrupt access to spectrum for broadcasters. Ms Blackwood from the department told the committee that:
…there's nothing in this package of reforms that is intended to disrupt the arrangements for broadcasters to access spectrum under the current planning arrangements. Under the Broadcasting Services Act, if you get a broadcast licence, you're entitled to spectrum in the broadcast services bands. Similarly, the national broadcasters work with ACMA through their planning arrangements to access the spectrum they require to deliver their services, and there are no amendments in this package that seek to amend those arrangements in any way.
2.64
However, in its submission, the SBS noted that the ACMA should ensure each national broadcaster would be entitled to use the spectrum capacity necessary to enable it to fulfil the objectives in its Act, for example the Special Broadcasting Services Act 1991, and continue to have access to the equivalent capacity to that which it currently holds.
2.65
Ms Blackwood, the department, also said that while the ACMA would be required to report on how ministerial policy statements have been taken into account, they are intended to be of a guiding nature and could not undermine the legislated requirements set out in the BSA in terms of spectrum planning arrangements and entitlements to spectrum.
2.66
Concerns were also raised that the ministerial policy statements would be notifiable instruments, and so while they would be published, they would not be legislative instruments and therefore not disallowable. The CBAA submitted that certainty of spectrum to be designated for broadcasting purposes is essential, and should only be amended by a process of legislative change and that ministerial policy statements would not be sufficient to provide that certainty.
2.67
The department also highlighted that the Minister already issues high level strategic policy indications of the government's policy objects for the regulator to take into account in making operational decisions under the legislation, and the intention is that ministerial policy statements will formalise this process.
2.68
Further, the department told the committee that ministerial policy statements would not be of a legislative character in terms of the decisions and the content, but rather guidance for the regulator that would be subject to consultation as appropriate when they are developed.
2.69
The Reform and Modernisation Bill also sets out that the ACMA would have to determine an annual work program each financial year, a practice that is already undertaken but not formalised in legislation. The ACMA noted that the annual work program would not significantly change the ACMA's current operational practices, but would ensure that it involves consideration of ministerial policy statements in its relevant decision-making processes.
2.70
The SBS supported the increased transparency regarding proposed changes and decisions relating to spectrum planning, including that the ACMA be required to determine a work program in relation to its spectrum management functions and spectrum management powers. The SBS submitted that as the ACMA is required to undertake appropriate consultation prior to finalising the work program, this should not increase the burden on stakeholders in relation to the consultation processes.
2.71
The ACMA submitted that the proposed 'changed objects and annual work program provisions do not significantly change the ACMA's current operational practices'.
Committee view
2.72
The committee recognises the significance of this critical suite of bills. Radiofrequency spectrum is an essential resource which underpins Australia's digital economy and is vital for daily activities of everyday Australians, particularly in rural, regional and remote communities. Almost all Australians are affected by the operation of fixed and mobile wireless communication networks and the committee is highly appreciative of the importance of these networks functioning consistently in times of uncertainty, such as the current COVID-19 pandemic.
2.73
These bills serve to streamline the processes for locating and re-allocating spectrum, which will result in a reduction in red tape and will provide greater certainty for small and large industry stakeholders alike. The proposed reforms are a much-needed response to the changes in markets and technology that have occurred since the previous legislative framework was established. The modernisation of the spectrum management framework is necessary and timely.
2.74
The committee commends the department and the ACMA for their in-depth consultation process, particularly the highly collaborative exposure draft processes. The committee recognises that this is a technologically complex area and acknowledges the substantial in-department expertise that allowed these bills to be drafted to such a high standard.
2.75
Regarding issues raised by submitters, it is the committee's view that the proposed bills strike a balance between technological realities, industry needs and regulatory stability. A mixed licensing arrangement remains the most practicable regime for spectrum management and provides licence holders with the greatest amount of certainty. With regard to spectrum and apparatus licencing arrangements, the department and the ACMA have sought to strike a balance between flexibility and certainty. The committee is satisfied that ACMA's ability to alter the default period for renewal applications, as well as ACMA's overall flexibility in this area, should assuage any concerns raised by submitters.
2.76
Similarly, the committee notes that the rights of national broadcasters are already protected in the BSA, therefore making any addition of national broadcasters to the object of the Act or to the public interest test unnecessary.
2.77
The committee is also comfortable with ministerial policy statements being notifiable instruments rather than legislative instruments as they are not of a legislative character, but instead provide guidance for the regulator, which is subject to consultation. The committee understands that the regulator already takes into account policy objectives for operational decisions and these proposed reforms formalise this process.
2.78
The committee is of the view that the proposed expansion of the ACMA's powers will be a significant improvement to the current radiocommunications regime, empowering the ACMA to take civil action where necessary and to manage unintentional spectrum interference in a proportionate manner. Given the ACMA's role as a regulatory agency and its exemplary past conduct, it is the committee's view that the ACMA's wider remit of powers is unlikely to pose a risk to the commercial practices of the national broadcasters or broadcasters more generally.
2.79
The committee considers that it is of the utmost important that these bills are passed as soon as practicable in order to ensure certainty for industry and to legislate long-awaited changes to the market. The bills are the products of a highly consultative process that represents a best-case example of considered, informed and collaborative regulatory change.
2.80
The committee recommends that the bills be passed.
Senator the Hon David Fawcett
Chair