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1996
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
TELECOMMUNICATIONS
(TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL
1996
EXPLANATORY
MEMORANDUM
(Circulated
by authority of Senator the Hon. Richard Alston, Minister for Communications and
the Arts)
79911 Cat. No. 96 5594 8 ISBN 0644 480262
TELECOMMUNICATIONS
(TRANSITIONAL PROVISIONS
AND CONSEQUENTIAL
AMENDMENTS) BILL 1996
OUTLINE
The Telecommunications (Transitional Provisions and Consequential
Amendments) Bill 1996 (‘the Bill’) contains transitional provisions
and consequential amendments related to the proposed Telecommunications Act
1996.
The Bill deals with the merger of the Australian
Telecommunications Authority (‘AUSTEL’) and the Spectrum Management
Agency (SMA) and the transfer of competition policy resources from AUSTEL to the
Australian Competition and Consumer Commission (‘ACCC’) on 1 July
1997. The merger on this date of AUSTEL and the SMA to form the Australian
Communications Authority (to be known as the ACA) is part of a proposed scheme
for regulating telecommunications in Australia from 1 July 1997 under the
proposed Telecommunications Act 1996.
The Bill also provides for
transitional provisions relating to a number of other matters including the
telecommunications access regime under proposed Part XIC of the Trade
Practices Act 1974 (‘TPA’) and to carrier licences. Access
agreements between carriers registered under s. 144 of the Telecommunications
Act 1991 immediately before 1 July 1997 will be deemed to have been
registered with the ACCC under the proposed new access regime arrangements.
They will therefore be enforceable as though they were a determination by the
ACCC under the access regime. Existing carriers will be deemed to have been
granted a carrier licence under the proposed Telecommunications Act 1996
on 1 July 1997. In addition, after 5 June 1997 the Minister will be able to
make, vary or revoke carrier licence conditions generally or in relation to each
specific licence. This will enable the Minister to vary existing carrier
licence conditions in line with the provisions of the new legislation.
As
a result of the proposed Telecommunications Act 1996, Schedule 1 to the
Bill makes a number of consequential amendments to other Commonwealth
Acts.
Schedule 2 to the Bill has four Parts dealing with amendments to
the Radiocommunications Act 1992. The first Part provides for minor
amendments consequential on the merger of the SMA and the ACA. The second Part
provides for minor amendments consequential on the enactment of the proposed
Telecommunications Act 1996. The third Part deals with the conduct of
public inquiries by the new ACA on radiocommunications matters. The fourth Part
provides for amendments relating to alignment of the technical regulation
regimes of the Radiocommunications Act and the proposed Telecommunications
Act 1996.
Schedules 3 and 4 to the Bill make minor amendments
consequential on the enactment of the proposed Commonwealth Authorities and
Companies Act 1996 and the Financial Management and Accountability Act
1996.
As a consequence of the proposed Telecommunications Act
1996, the proposed Telecommunications (Carrier Licence Charges) Bill
1996, the proposed Telecommunications (Numbering Charges) Act 1996
and the proposed Telecommunications (Universal Service Levy) Act 1996,
Schedule 5 to the Bill repeals the Telecommunications Act 1991, the
Telecommunications (Public Mobile Licence Charge) Act 1992, the
Telecommunications (Numbering Charges) Act 1991, the
Telecommunications (Universal Service Levy) Act 1991 and the
Telecommunications (Application Fees) Act 1991. Schedule 5 also repeals
the Radiocommunications (Permit Tax) Act 1983, which is now
defunct.
FINANCIAL IMPACT
The transition to the post-1997 regime and its initial implementation
will require considerable effort by the ACA, the ACCC, AUSTEL, the SMA and the
Department of Communications and the Arts. The ACCC is expected to receive
supplementary funding in the order of $1m for the necessary pre-commencement
tasks it needs to undertake and this will be recovered from carrier licence fees
in 1997/98.
Details of ongoing resource requirements will be considered
in the 1997/98 and subsequent budget processes.
ABBREVIATIONS
The following abbreviations are used in this explanatory
memorandum:
ACA: Australian Communications
Authority
ACCC: Australian Competition and Consumer
Commission
AUSTEL: Australian Telecommunications
Authority
Bill: Telecommunications (Transitional Provisions and
Consequential Amendments) Bill 1996
CAC Bill: Commonwealth
Authorities and Companies Bill 1996
FMA Bill: Financial Management and
Accountability Bill 1996
Radcom Act: Radiocommunications Act
1992
SMA: Spectrum Management
Agency
TIO: Telecommunications Industry
Ombudsman
TPA: Trade Practices Act 1974
NOTES ON CLAUSES
Part 1––Preliminary
Clause 1 – Short title
Clause 1 provides for the
citation of the Telecommunications (Transitional Provisions and Consequential
Amendments) Act 1996.
Clause 2 –
Commencement
Clause 2 provides for the Bill, when enacted, to
commence on Royal Assent with certain exceptions.
The provisions which
will commence on Royal Assent (to enable relevant preliminary work to be
undertaken) are:
• Part 1 of the Bill, dealing with preliminary
matters;
• Divisions 1 to 4 (inclusive) and 13 to 16 (inclusive) of
Part 3 of the Bill, dealing with transitional provisions relating
to:
– the merger of AUSTEL and the SMA;
– the transfer
of competition policy resources from AUSTEL to the ACCC;
– the
telecommunications access regime;
– anti-competitive conduct in the
telecommunications industry;
– the numbering plan made by the ACA
under cl. 439 of the Telecommunications Bill 1996;
– the exercise
of certain powers by AUSTEL on behalf of the ACA before 1 July 1997 (including
the determination of application charges for carrier licences, the receipt of
applications for carrier licences, the determination of allocation charges for
certain numbers, the determination of charges relating to the ACA’s costs
and the making of delegations); and
– eligible combined
areas.
The following provisions will commence on 1 July
1997:
(a) Part 2 and Schedule 5 which repeal:
– the
Radiocommunications (Permit Tax) Act 1983, which is now
defunct;
– the Telecommunications Act 1991, which is to be
replaced by the proposed Telecommunications Act 1996 – this Act
will also deal with matters currently dealt with by the Telecommunications
(Application Fees) Act 1991 which Schedule 5 will repeal;
and
– related taxing legislation, which is to be replaced by new
taxing legislation as part of the package of post-1997 telecommunications
legislation;
(b) Divisions 5 to 12 (inclusive) of Part 3 which deal with
transitional provisions relating to:
– technical standards under s.
244 of the Telecommunications Act 1991;
– indicative
performance standards;
– the universal service
regime;
– the chart of accounts and the cost allocation
manual;
– international aspects of carriers’
activities;
– cabling and customer equipment;
– the
protection of the confidentiality of communications; and
– reviews
and reports about the telecommunications industry;
(c) Part 4 and
Schedules 1 and 2 – which make consequential amendments to the
Radiocommunications Act 1992 and other Commonwealth legislation as a
result of the enactment of the proposed Telecommunications Act 1996 (cl.
2(2)).
Schedule 3 to the Bill, dealing with amendments consequential on
the enactment of the proposed Commonwealth Authorities and Companies Act
1996, will commence when that Act commences (cl. 2(3)).
Schedule 4 to
the Bill, dealing with amendments consequential upon the enactment of the
proposed Financial Management and Accountability Act 1996, will commence
when that Act commences (cl. 2(4)).
If the proposed Broadcasting
Services Amendment Act 1996 (which, among other things, makes an amendment
to s. 171 of the Broadcasting Services Act 1992) does not commence before
1 July 1997, the amendments made to that section by items 13 and 14 of Schedule
1 to the Bill will commence immediately after the commencement of the proposed
Broadcasting Services Amendment Act 1996 (cl. 2(5)).
If the
proposed Legislative Instruments Act 1996 (which, among other things,
specifies existing telecommunications and radiocommunications legislation as
legislation providing for legislative instruments likely to have an effect on
business) does not commence before 1 July 1997, the amendments made to this
specification by items 37, 38 and 39 of Schedule 1 to the Bill will commence
immediately after the commencement of the Legislative Instruments Act
1996 (cl. 2(6)).
Part 2––Repeals
Clause 3 – Repeals
Clause 3, when read with Schedule
5 to the Bill, provides for the repeal of:
(a) the Radiocommunications
(Permit Tax) Act 1983, which is now defunct;
(b) the
Telecommunications Act 1991, which is to be replaced by the proposed
Telecommunications Act 1996 – this Act will also deal with matters
currently dealt with by the Telecommunications (Application Fees) Act 1991
which Schedule 5 will repeal; and
(c) related taxing legislation,
which is to be replaced by new taxing legislation as part of the package of
post-1997 telecommunications legislation.
Clause 4 –
Compensation––constitutional safety-net
If, apart from
cl. 4, the operation of Part 2 of the Bill would result in the acquisition of
property from a person otherwise than on just terms in contravention of
paragraph 51(xxxi) of the Constitution, the Commonwealth will be liable to pay
reasonable compensation to the person in respect of the acquisition (cls. 4(1)
and (3)).
If the Commonwealth and the person cannot agree on the amount
of the compensation, the person will be able to institute proceedings in the
Federal Court for the recovery from the Commonwealth of such reasonable amount
of compensation as the Court determines (cl. 4(2)).
Part
3––Transitional
Division
1––Transitional provisions relating to
the merger of
AUSTEL and the SMA
Clause 5 – Definitions
Clause 5 sets out the definitions
of key terms used in Division 1 of Part 3.
Clause 6 – Transfer
of assets to the ACA
Clause 6 deals with the transfer to the ACA of
Commonwealth assets used, or proposed to be used, by the SMA (cl. 6(1)).
Unlike AUSTEL, the SMA is not a legal person and does not hold assets in its own
name.
The term ‘asset’ is defined widely in clause 5 to mean
any legal or equitable estate or interest in real or personal property, whether
actual, contingent or prospective, and any right, power, privilege and immunity,
whether actual, contingent or prospective.
The Minister will be empowered
to arrange for the transfer to the ACA of any asset the Minister considers
appropriate to be transferred to the ACA for the performance of its functions
and the exercise of its powers (cl. 6(2)). The Minister will also be empowered
to declare that a specified instrument (such as a written agreement) relating to
such an asset continues to have effect after the asset vests in the ACA as if a
reference in the instrument to the Commonwealth were a reference to the ACA
– the effect of this will be to ensure that any rights or obligations
under an instrument relating to the Commonwealth will become rights or
obligations of the ACA from 1 July 1997 (cls. 6(4) and (5)).
Assets will
also be able to be transferred to the ACA by other means (such as by a deed of
conveyance, assignment or transfer) (cl. 6(3)).
The transfer of SMA staff
to the ACA will be dealt with under s. 29 of the Public Service Act
1922.
Clause 7 – Re-transfer of assets
The
purpose of cl. 7 is to allow the correction of any errors in the transfer to the
ACA under cl. 6 of assets used, or proposed to be used, by the SMA (cl. 7(1)).
This correction will be effected by way of one or more of the following
Ministerial declarations:
• a declaration that a specified asset
vests in the Commonwealth at a specified time before 1 January 1998 without any
conveyance, transfer or assignment;
• a declaration that a
specified instrument (such as a written agreement) relating to a specified asset
continues to have effect after the asset vests in the Commonwealth as if a
reference in the instrument to the ACA were a reference to the Commonwealth
– the effect of this will be to ensure that any rights or obligations
under an instrument relating to the ACA will again become rights or obligations
of the Commonwealth from a date before 1 January 1998 specified in the
declaration;
• a declaration that the Commonwealth becomes the
ACA’s successor in law in relation to a specified asset immediately after
the asset vests in the Commonwealth (cls. 7(2), (3) and (4)).
Clause
8 – Transfer of liabilities to the ACA
Clause 8 deals with the
transfer to the ACA of Commonwealth liabilities relating to the SMA (cl. 8(1)).
Unlike AUSTEL, the SMA is not a legal person and does not incur liabilities in
its own name. Any liabilities relating to the SMA are incurred in the name of
the Commonwealth.
‘Liability’ is defined widely in cl. 5 to
mean any liability, duty or obligation, whether actual, contingent or
prospective.
A transfer to the ACA of a Commonwealth liability relating
to the SMA will be effected by way of one or more of the following Ministerial
declarations:
• a declaration that a specified liability ceases to
be a liability of the Commonwealth and becomes a liability of the ACA at 1 July
1997;
• a declaration that a specified instrument (such as a
written agreement) relating to a specified liability continues to have effect
after the liability becomes a liability of the ACA as if a reference in the
instrument to the Commonwealth were a reference to the ACA – the effect of
this will be to ensure that any obligations under an instrument relating to the
Commonwealth will become obligations of the ACA from 1 July
1997;
• a declaration that the ACA becomes the Commonwealth’s
successor in law in relation to a specified liability immediately after the
liability becomes a liability of the ACA (cls. 8(2) and (3) and cl. 5,
definition of ‘merging time’).
Clause 9 –
Re-transfer of liabilities
The purpose of cl. 9 is to allow the
correction of any errors in the transfer to the ACA under cl. 8 of liabilities
relating to the SMA (cl. 9(1)).
This correction will be effected by way
of one or more of the following Ministerial declarations:
• a
declaration that a specified liability ceases to be a liability of the ACA and
becomes a liability of the Commonwealth at a specified time before 1 January
1998;
• a declaration that a specified instrument (such as a
written agreement) relating to a specified liability continues to have effect
after the liability becomes a liability of the Commonwealth as if a reference in
the instrument to the ACA were a reference to the Commonwealth – the
effect of this will be to ensure that any obligations under an instrument
relating to the ACA will again become obligations of the Commonwealth from a
date before 1 January 1998 specified in the declaration;
• a
declaration that the Commonwealth becomes the ACA’s successor in law in
relation to a specified liability immediately after the liability becomes a
liability of the Commonwealth (cls. 9(2), (3) and (4)).
Clause 10
– Transfers of land may be registered
Clause 10 provides for a
simplified land registration procedure in connection with the re-transfer to the
Commonwealth of land used for SMA purposes under cl. 7.
This procedure is
as follows:
• The Minister signs a certificate identifying the land
and stating that a right, title or interest in the land has become vested in the
Commonwealth under proposed s. 7.
• The certificate is lodged with
a relevant State or Territory land registration official.
• The
land registration official may register the matter in the same way as, or in a
way similar to the way that, other dealings in land of that kind are registered
and may deal with and give effect to the Minister’s certificate (cls.
10(1) and (2)).
A document that appears to be the Minister’s
certificate is to be taken to be such a certificate, and to have been properly
given, unless the contrary is established (cl. 10(3)).
Clause 11
– This Division does not modify registers kept by land registration
officials
The effect of cl. 11 is that the provisions in Division 1
of Part 3 modifying references in documents to ‘the Commonwealth’
and ‘the ACA’ respectively to references to ‘the ACA’
and ‘the Commonwealth’ respectively do not result in any
modification to a land titles register.
Clause 12 – Exemption
from stamp duty and other taxes
Stamp duty and other State or
Territory taxes will not be payable in respect of the transfer of an asset or
liability under Division 1 of Part 3 or anything done in connection with such a
transfer (cl. 12).
Clause 13 – Lands Acquisition Act does not
apply to this Division
Clause 13 provides that the Lands
Acquisition Act 1989 (setting out procedures relating to the acquisition of
land by the Commonwealth and certain Commonwealth authorities and dealings with
land so acquired) does not apply to anything done under Division 1 of Part 3 in
connection with the transfer to the ACA of land used for SMA purposes or the
re-transfer of that land to the Commonwealth.
Clause 14 –
References in instruments to the SMA become references to the
ACA
Clause 14 allows the Minister to declare that an instrument (such
as a written agreement) that was in force on 30 June 1997 and that contains a
reference to the SMA or the Spectrum Manager has effect as if the reference were
to the ACA, or the Chairman of the ACA, as the case may be.
Clause 15
– Transfer of SMA records to the ACA
Clause 15 provides that
any records or documents that were in the possession of the Spectrum Manager
(whose role it is to control the operations of the SMA) immediately before 1
July 1997 (‘the merging time’ – see cl. 5) and that relate to
the SMA are to be transferred to the ACA from that date.
Clause 16
– Acts of the SMA to be attributed to the ACA etc.
Clause 16
provides that anything done by, or in relation to, the SMA under the
Radiocommunications Act 1992 (Radcom Act) before 1 July 1997 (‘the
merging time’ – see cl. 5) has effect as if the thing had been done
by, or in relation to the ACA (cls. 16(1) and (2)).
Examples of things
done by the SMA under the Radcom Act include issuing apparatus and spectrum
licences, class licences and permits (cl. 16(3)). Other examples
include:
• issuing certificates of proficiency under s.
121;
• issuing a permission to supply a non-standard device under
s. 174;
• issuing a compliance certificate under s.
184;
• issuing an identity card to an inspector under s.
268;
• issuing an evidentiary certificate under s.
305;
• giving a direction under ss. 116, 212, 240, 281;
• giving a notice under ss 33, 43, 54, 73, 75, 77, 78, 82, 100, 101,
111, 116, 121, 122, 124, 126, 128, 130, 132, 134, 135, 136, 145, 153, 167, 168,
171, 174, 182, 184, 190, 191, 193, 195, 205, 212, 213, 257, 264, 265, 287, 289;
the Schedule, Part 1, cls 3 and 5 and the Schedule, Part 2, cls 4 and
5;
• serving a pre-acquisition declaration under the Schedule, Part
1, cl. 2;
• giving an approval in relation to: (1) the form of
applications (ss. 99, 120, 131AA, 153, 167, 263, 268 and 288); (2) the form of a
request for an advice (s. 140); and (3) the form of a claim (the Schedule, Part
1, cl. 5 and the Schedule, Part 2, cl. 3);
• making a declaration
under s. 122, 190 or under Part 1, item 1 of the Schedule.
A condition
included in a licence or other instrument of a kind referred to above, or
imposed in connection with such an instrument, will have effect as if it had
been included or imposed by the ACA.
Examples of things done in relation
to the SMA will include applications for licences or permits under the Radcom
Act (cl. 16(4)).
Clause 17 – Pending
proceedings––Commonwealth a party
Clause 17 provides for
the substitution from 1 July 1997 of the ACA for the Commonwealth as a party to
proceedings relating to the SMA that were pending in any court or tribunal
before 1 July 1997.
Clause 18 – Pending
proceedings––Spectrum Manager a party
Clause 18 provides
for the substitution from 1 July 1997 of the ACA or the ACA Chairman for the
Spectrum Manager as a party to proceedings that were pending in any court or
tribunal before 1 July 1997 (cl. 18(1)). An example of such a proceeding would
be a proceeding brought against the Spectrum Manager, rather than the
Commonwealth or the SMA, under the Administrative Appeals Tribunal Act
1975.
If the proceedings relate to a thing done by the Spectrum
Manager in the name of, or on behalf of, the SMA, the ACA is, from 1 July 1997,
substituted for the Spectrum Manager as a party to the proceedings (cl.
18(2)).
In other proceedings to which the Spectrum Manager was a party
and that were pending in any court or tribunal before 1 July 1997, the ACA
Chairman is, from 1 July 1997, substituted for the Spectrum Manager as party to
the proceedings (cl. 18(3)).
Clause 19 –
Investigations
Clause 19 allows matters that arose before 1 July 1997
to be investigated by the ACA under Part 15 of the current Telecommunications
Act as if that Part had not been repealed. Sections 343 and 344 of that Act
will not, however, have any continued operation from 1 July 1997.
Section 343 of the Telecommunications Act 1991 provides that
AUSTEL may, as a result of an investigation, direct a carrier to remedy a breach
of a licence condition. From 1 July 1997, the ACA will be able to give a
carrier in breach of a licence condition or a service provider in breach of a
service provider rule a remedial direction or a formal warning under proposed
ss. 68, 69, 101 and 102 of the Telecommunications Act
1996.
Section 344 of the Telecommunications Act 1991 provides
that AUSTEL may direct a carrier to fulfil a prescribed carrier obligation. As
the concept of a prescribed carrier obligation has not been carried across to
the proposed Telecommunications Act 1996, a provision based on section
344 is not required.
Clause 20 – Public
inquiries
Clause 20 allows public inquiries begun, or required to be
begun, by AUSTEL under Part 14 of the current Telecommunications Act before 1
July 1997 to be completed by the ACA under that Part as if it had not been
repealed.
Clause 21 – Transfer of Ombudsman
investigations
Clause 21 provides for complaints made to the
Ombudsman but not finally resolved, or investigations begun by the Ombudsman,
before 1 July 1997 in relation to action taken by the SMA, to be dealt with by
the Ombudsman from 1 July 1997 as if that action had been taken by the
ACA.
Clause 22 – Committees
Section 53 of the
Telecommunications Act 1991 allows AUSTEL to establish advisory
committees to assist it in performing any of its functions (other than its
arbitration functions under Division 5 of Part 8 in relation to terms of access
to telecommunications networks and services). Such advisory committees consist
of such persons as AUSTEL appoints from time to time. AUSTEL may also give such
advisory committees written directions as to the way in which they are to carry
out their functions and conduct their meetings.
Section 240 of the
Radiocommunications Act 1992 allows the SMA to establish committees to
assist it in performing any of its functions. Such committees consist of such
persons as the SMA from time to time appoints. The SMA may also give such
advisory committees written directions as to the way in which they are to carry
out their functions and conduct their meetings.
Clause 22 provides that
any committee established by AUSTEL under
s. 53 of the Telecommunications
Act or by the SMA under s. 240 of the Radiocommunications Act that is in
existence immediately before 1 July 1997 will be taken to have been established
by the ACA on 1 July 1997 under proposed s. 51 of the Australian
Communications Authority Act 1996 (cls. 22(1) and (2)(a)). (Proposed
s.
51 allows the ACA to establish advisory committees to assist it in performing
any of its functions.)
Each appointment to an existing committee and each
direction relating to the way in which the committee is to carry out its
functions and conduct its meetings that was in force immediately before 1 July
1997 is taken to have been made or given by the ACA on 1 July 1997 under
proposed s. 51 of the ACA Bill (cls. 22(2)(b) and (c)).
In the case of a
committee established by AUSTEL under s. 53 of the current Telecommunications
Act, a reference in the instrument establishing the committee to AUSTEL is to be
taken to be a reference to the ACA (cl. 22(3)). In the case of a committee
established by the SMA under s. 240 of the Radiocommunications Act, a reference
in the instrument establishing the committee to the SMA is to be taken to be a
reference to the ACA (cl. 22(4)).
The ACA will have to review the
existence of any committee whose existence is continued by clause 22 before 30
June 1998 (cl. 22(5)).
Clause 23 – Protected name and protected
symbol
Clause 23 provides for the protection given to the AUSTEL
name, acronym and symbol under s. 402A of the Telecommunications Act 1991
to continue to apply for 12 months after 1 July 1997 or such longer period (if
any) as is specified in the regulations.
The effect of the continued
operation of s. 402A is as follows:
• Unless the ACA agrees in
writing, a person will not be permitted to use the name ‘Australian
Telecommunications Authority’ or the acronym ‘AUSTEL’ or a
closely similar name or acronym in trade or commerce or as part of the name of
any firm, body, premises, vehicle, ship or craft, including aircraft. A similar
prohibition will apply to the use of the official symbol of AUSTEL, the design
of which will be set out in the regulations (TA ss. 402A(1) and
(6)).
• An individual who intentionally or recklessly contravenes
this prohibition will be guilty of an offence punishable on conviction by a fine
not exceeding 30 penalty units or, in the case of a body corporate, by a fine
not exceeding 150 penalty units (s. 402A(1) and s. 4B(3) of the Crimes Act
1914).
• Nothing in s. 402A(1) will limit anything else in that
subsection (s. 402A(2)).
• The prohibition in s. 402A(1) will not
affect rights in relation to AUSTEL’s name, acronym or symbol conferred by
a trade mark or design registered immediately before 26 June 1992 (s.
402A(3)).
• Nothing in s. 402A will affect a person’s legal
rights to use the AUSTEL name, acronym or symbol in a particular manner if
immediately before 26 June 1992 the person:
– was using the name,
acronym or the symbol in good faith in that manner; or
– would
have been entitled to take action to prevent another person from passing off
goods or services as the goods or services of the first-mentioned person (s.
402A(4)).
• The prohibition in s. 402A will not apply to a person
who uses or applies the AUSTEL name, acronym or symbol for the purpose of
labelling customer equipment in accordance with a permit in force under TA s.
258(1) (s. 402A(5)).
Clause 24 – Annual report
Clause
24 requires the ACA, as soon as practicable after 1 July 1997, to prepare and
give to the Minister a report of the SMA’s operations during the financial
year ending on 30 June 1997. The Minister must cause a copy of the report to be
laid before each House of the Parliament within 15 sitting days of the House
after the Minister received the report.
As a result of s. 63CA of the
Audit Act 1901, the ACA will be subject to Division 2 of Part XI of the
Audit Act. This will require the ACA, among other things, to prepare an annual
report of the ACA’s operations and submit it to the Minister together with
audited financial statements. The Minister will be required to have copies of
the annual report and financial statements, together with the
Auditor-General’s report, laid before each House of the Parliament within
15 sitting days of that House after their receipt by the
Minister.
Clause 25 – Delegation
The Minister will be
able to delegate, in writing, all or any of his or her powers under Division 1
of Part 3 to the Secretary, or an SES officer, in the Department (currently the
Department of Communications and the Arts – see Acts Interpretation Act
1901,
s. 19A). The delegate will exercise these powers subject to the
Minister’s directions (cl. 25).
Division 2––Transitional provisions relating to
the transfer of
competition policy resources from AUSTEL to the
ACCC
Clause 26 – Definitions
Clause 26 sets out the
definitions of key terms used in Division 2 of Part 3.
Clause 27
– Transfer of AUSTEL assets
Clause 27 is intended to deal with
the transfer from AUSTEL to the Commonwealth of assets devoted to the
performance of AUSTEL’s competition policy functions
(cl. 27(1)).
Although the ACCC has the ability to hold assets in its own name (see
s.
6A(2)(c) of the TPA) it does not in fact do so. Rather it uses Commonwealth
assets in the performance of its functions. Clause 27 does not, therefore, deal
with the transfer of specified AUSTEL assets to the ACCC direct but rather with
the transfer of these assets to the Commonwealth for the ACCC’s
purposes.
The term ‘asset’ is defined widely in cl. 26 to
mean any legal or equitable estate or interest in real or personal property,
whether actual, contingent or prospective, and any right, power, privilege and
immunity, whether actual, contingent or prospective.
The Minister will be
empowered to arrange for the transfer to the Commonwealth of any of
AUSTEL’s assets that the Minister considers appropriate to be transferred
to the Commonwealth for purposes connected with the performance and exercise of
the ACCC’s telecommunications functions and powers (cl. 27(2)). The
ACCC’s telecommunications functions and powers will have the same meaning
as in cl. 8 of the Telecommunications Bill 1996 (cl. 27(6)) and will mean the
functions and powers conferred on the ACCC by or under:
• the
proposed Telecommunications Act 1996 (such as Part 20 which provides that
the ACCC has the general administration of Rules of Conduct about dealings with
international telecommunications operators);
• the Telstra
Corporation Act 1991 (from 1 July 1997, the ACCC will have responsibility
for administering Part 6 of that Act dealing with Telstra’s
charges)
• Part XIB of the TPA, which sets up a special regime for
regulating anti-competitive conduct in the telecommunications
industry;
• Part XIC of the TPA, which sets out a
telecommunications access regime; and
• any other provision of the
TPA, in so far as that provision applies to a matter connected with
telecommunications – for this purpose ‘telecommunications’
means the carriage of communications by means of guided and/or unguided
electromagnetic energy.
The Minister will also be empowered to declare
that a specified instrument (such as a written agreement) relating to any such
asset continues to have effect after the asset vests in the Commonwealth as if a
reference in the instrument to AUSTEL were a reference to the Commonwealth
– the effect of this will be to ensure that any rights or obligations
under an instrument relating to AUSTEL will become rights or obligations of the
Commonwealth from 1 July 1997 (cls. 27(4) and (5)).
Assets will also be
able to be transferred to from AUSTEL to the Commonwealth by other means (such
as by a deed of conveyance, assignment or transfer) (cl. 27(3)).
The
transfer to the ACCC of staff members of AUSTEL devoted to competition policy
matters will be dealt with under s. 29 of the Public Service Act
1922.
Clause 28 – Re-transfer of assets
The
purpose of cl. 28 is to allow the correction of any errors in the transfer to
the Commonwealth under cl. 27 of AUSTEL assets to be used by the ACCC (cl.
28(1)).
This correction will be effected by way of one or more of the
following Ministerial declarations:
• a declaration that a
specified asset vests in the ACA at a specified time before 1 January 1998
without any conveyance, transfer or assignment;
• a declaration
that a specified instrument (such as a written agreement) relating to a
specified asset continues to have effect after the asset vests in the ACA as if
a reference in the instrument to the Commonwealth were a reference to the ACA
– the effect of this will be to ensure that any rights or obligations
under an instrument relating to the Commonwealth will become rights or
obligations of the ACA from a date before 1 January 1998 specified in the
declaration;
• a declaration that the ACA becomes the
Commonwealth’s successor in law in relation to a specified asset
immediately after the asset vests in the ACA (cls. 28(2), (3) and
(4)).
Clause 29 – Transfer of AUSTEL
liabilities
Clause 29 is intended to deal with the transfer from
AUSTEL to the Commonwealth of liabilities related to the performance of
AUSTEL’s competition policy functions
(cl. 29(1)). The transfer is
from AUSTEL to the Commonwealth rather than from AUSTEL to the ACCC because the
ACCC does not incur liabilities in its own name. Any liabilities relating to
the ACCC are incurred in the name of the
Commonwealth.
‘Liability’ is defined widely in cl. 26 to
include any liability, duty or obligation, whether actual, contingent or
prospective.
A transfer to the Commonwealth of a liability of AUSTEL will
be effected by way of one or more of the following Ministerial
declarations:
• a declaration that a specified liability ceases to
be a liability of AUSTEL and becomes a liability of the Commonwealth as at 1
July 1997;
• a declaration that a specified instrument (such as a
written agreement) relating to a specified liability continues to have effect
after the liability becomes a liability of the Commonwealth as if a reference in
the instrument to AUSTEL were a reference to the Commonwealth – the effect
of this will be to ensure that any obligations under an instrument relating to
AUSTEL will become obligations of the Commonwealth from 1 July
1997;
• a declaration that the Commonwealth becomes AUSTEL’s
successor in law in relation to a specified liability immediately after the
liability becomes a liability of the Commonwealth (cls. 29(2) and (3) and cl.
26, definition of ‘merging time’).
Clause 30 –
Re-transfer of liabilities
The purpose of cl. 30 is to allow the
correction of any errors in the transfer to the Commonwealth under cl. 29 of
liabilities relating to the performance of AUSTEL’s competition policy
functions (cl. 30(1)).
This correction will be effected by way of one
or more of the following Ministerial declarations:
• a declaration
that a specified liability ceases to be a liability of the Commonwealth and
becomes a liability of the ACA at a specified time before 1 January
1998;
• a declaration that a specified instrument (such as a
written agreement) relating to a specified liability continues to have effect
after the liability becomes a liability of the ACA as if a reference in the
instrument to the Commonwealth were a reference to the ACA – the effect of
this will be to ensure that any obligations under an instrument relating to the
Commonwealth will become obligations of the ACA from a date before 1 January
1998 specified in the declaration;
• a declaration that the ACA
becomes the Commonwealth’s successor in law in relation to a specified
liability immediately after the liability becomes a liability of the ACA (cls.
30(2), (3) and (4)).
Clause 31 – Transfers of land may be
registered
Clause 31 provides for a simplified land registration
procedure in connection with the re-transfer to the ACA of liabilities in
connection with land used by AUSTEL in connection with its competition policy
functions under cl. 28.
This procedure is as follows:
• The
Minister signs a certificate identifying the land and stating that a right,
title or interest in the land has become vested in the ACA under cl.
28.
• The certificate is lodged with a relevant State or Territory
land registration official.
• The land registration official may
register the matter in the same way as, or in a way similar to the way that,
other dealings in land of that kind are registered and may deal with and give
effect to the Minister’s certificate (cls. 31(1) and (2)).
A
document that appears to be the Minister’s certificate is to be taken to
be such a certificate, and to have been properly given, unless the contrary is
established (cl. 31(3)).
Clause 32 – This Division does not
modify registers kept by land registration officials
The effect of
cl. 32 is that the provisions in Division 2 of Part 3 modifying references in
documents to ‘AUSTEL’ and ‘the Commonwealth’
respectively to references to ‘the Commonwealth’ and ‘the
ACA’ respectively do not result in any modification to a land titles
register.
Clause 33 – Exemption from stamp duty and other
taxes
Stamp duty and other State or Territory taxes will not be
payable in respect of the transfer of an asset or liability under Division 2 of
Part 3 or anything done in connection with such a transfer (cl.
33).
Clause 34 – Lands Acquisition Act does not apply to this
Division
Clause 34 provides that the Lands Acquisition Act
1989 (setting out procedures relating to the acquisition of land by the
Commonwealth and certain Commonwealth authorities and dealings with land so
acquired) does not apply to anything done under Division 2 of Part 3 in
connection with the transfer to the Commonwealth of land used by AUSTEL in
connection with its competition policy functions or the re-transfer of that land
to the ACA under Division 2 of Part 3 of the Bill.
Clause 35 –
Delegation
The Minister will be able to delegate, in writing, all or
any of his or her powers under Division 2 of Part 3 to the Secretary, or an SES
officer, in the Department (currently the Department of Communications and the
Arts – see Acts Interpretation Act 1901,
s. 19A). The delegate
will exercise these powers subject to the Minister’s directions
(cl.
35).
Division 3––Transitional provisions relating
to
the telecommunications access regime
Clause 36 – Modified application of Part XIC of the Trade
Practices Act 1974 before 1 July 1997
Before 1 July 1997, Part
XIC of the TPA will have effect as if references to carriers were references to
a carrier within the meaning of the Telecommunications Act 1991 and the
reference to a carrier in cl. 86 of the Telecommunications Bill 1996 were a
reference to a carrier within the meaning of the Telecommunications Act
1991.
Clause 37 – Phase-out of arbitrations under section
154 of the Telecommunications Act 1991
If AUSTEL is satisfied
that a matter which has been submitted for arbitration under the access
arbitration provisions in s. 154 of the Telecommunications Act 1991 could
be notified under proposed s. 152CM of the arbitration provisions in proposed
Part XIC of the TPA, then AUSTEL will be able to terminate the arbitration or
refuse to conduct the arbitration.
Clause 38 – Recognition of
pre-1 July 1997 consultations by the Telecommunications Access
Forum
If a body or association is declared to be the
Telecommunications Access Forum by the ACCC under proposed s. 152AI of the TPA
within 28 days of the commencement of
cl. 38 of the Bill, and that body
undertook consultation regarding a draft code with persons who are likely to
become access seekers or consumer representatives before the declaration and in
a manner which would comply with the requirements of proposed
ss. 152BF(a)
and (b) of the TPA, then the body or association is taken to have complied with
those provisions.
Clause 39 – Services covered by
pre-commencement access agreements
The ACCC will be required, in
consultation with AUSTEL, to prepare a statement specifying carriage services
and services which facilitate the supply of carriage services which will be
deemed as declared services for the purposes of the telecommunications access
regime. The statement of services will draw on those contained in access
agreements between the three existing carriers registered under s. 144 of the
Telecommunications Act 1991 as at 13 September 1996. (cl.
39(1))
If, however, the ACCC is satisfied that specifying a particular
service will not be in the long-term interests of end-users of the service or of
services supplied by means of the service, then the ACCC will not be required to
include the service in its statement
(cl. 39(2)). The question whether a
particular thing promotes the long-term interests of end-users is to be
determined in accordance with the test set out in proposed s. 152AB of the TPA
(cl. 39(3)).
Despite the general obligation, the ACCC must not specify a
service if it is supplied by means of an AMPS network and the ACCC is satisfied
that the specification of the service would be inconsistent with the AMPS
phaseout policy contained in Part 19 of the Telecommunications Bill 1996 (cl.
39(4)). This provision is intended to enable the ACCC to have regard to whether
the interests of end-users are promoted by the provision of regulated access
(and thus increased competition) to services which Government policy proposes
should be phased out over the next few years. Determination of whether the AMPS
phaseout arrangements should have any impact at all on the inclusion of AMPS
services in the statement can only be considered having regard to the services
in existing access agreements.
In addition to the general obligation, the
ACCC must also specify in the statement an eligible service that is necessary
for the purposes of enabling the supply of a broadcasting service by means of
line links and was of a kind that was used for those purposes on 13 September
1996 (cl. 39(5)). This is intended to require the ACCC to include in its
statement, and thus provide regulated access under Part XIC to, a service for
the carriage of broadcasting (particularly, subscription television broadcasting
services) over cable networks generally. Reference to 13 September 1996 is to
the date of the release of the exposure draft of the access legislation and is
primarily intended to direct the ACCC’s attention to services currently
being used to supply broadcasting services over cable based networks. Reference
to ‘of a kind’ is intended to avoid suggestions that the declaration
should be, for example, restricted only to service providers operating on 13
September 1996 or to the particular geographical regions in which they were
operating on that date.
In addition to the general obligation, if an
access agreement is registered under s. 144 of the Telecommunications Act
1991 (whether it be an entirely new agreement or a variation of an existing
agreement as envisaged by s. 153 of that Act), then the ACCC may also specify in
the statement an eligible service covered by the access agreement (cl.
39(6)).
Subclauses 39(7) and (8) require the ACCC to consult AUSTEL and
publish the draft statement, invite submissions and consider any submissions
received in its preparation (or variations to the statement by reason, for
example, of the circumstance described in subclause (6)).
A copy of the
ACCC’s statement, and of any variation of the statement, is to be
published in the Commonwealth Gazette (cl. 39(9)).
The
telecommunications access regime in proposed Part XIC of the TPA, contained in
the Trade Practices Amendment (Telecommunications) Bill 1996, will have effect
as if the ACCC had made an instrument declaring the services specified in the
statement under proposed s. 152AL(3) of the TPA and complied with the
requirements of that subclause in relation to the instrument (cl.
39(10)).
Services which have been declared by means of this deeming
provision will be able to be varied or revoked in accordance with the normal
procedures detailed in proposed
s. 152AO of TPA (cl. 39(11)).
The
ACCC will be entitled to inspect, make copies of, or take extracts from, any
part of the register of access agreements kept under s. 144 of the
Telecommunications Act 1991 for a purpose relating to the exercise of its
powers under this provision (cl. 39(12)).
Clause 40 – Certain
mobile services supplied by Telstra
Before 1 January 2000, in
determining for the purposes of the telecommunications access regime in proposed
Part XIC of the TPA whether a standard access obligation is imposed on Telstra
where a person requesting a service was a holder of a public mobile licence
immediately before 1 July 1997, the Part has effect as if any eligible service
which Telstra was obliged to supply to those persons by clause 4.1 of its public
mobile licence were a declared service.
This provision is intended to
give assurance to existing public mobile licence holders of their continued
rights to receive AMPS air-time from Telstra as required by its public mobile
licence. This clause does not prevent the inclusion of the same or similar
services in the ACCC’s statement made under cl. 39 of this Bill or a
declaration at any future date under proposed s. 152AL of the
TPA.
Clause 41 – Registration of pre-commencement access
agreements
Access agreements between carriers registered under s. 144
of the Telecommunications Act 1991 immediately before 1 July 1997 will be
deemed to have been registered with the ACCC under the proposed new access
regime arrangements under Division 6 of Part XIC of the TPA (cls. 41(1) and
(2)). They will therefore be enforceable as though they were a determination by
the ACCC under the new access regime (see proposed s. 152EE of TPA).
The
continuity of these agreements will not be affected by the repeal of the
Telecommunications Act 1991 (cl. 41(3)).
Nothing in cl. 41 will
prevent the parties to these agreements from varying or terminating the
agreements (cl. 41(4)).
The immunity those agreements currently enjoy
from application of Part IV of the TPA will continue initially until 31 December
1997, although the ACCC will be able to extend that protection for periods of up
to 90 days if renegotiations or arbitration procedures have not been completed
(cls. 41(5), (6) and (7)). This will provide a period of grace during which the
parties to the agreement can ensure it is consistent with Part IV of the TPA or
otherwise obtain an authorisation under Part VII of that Act.
Clause
42 – Pre-1 July 1997 operation of the telecommunications access regime
– references to the ACA to be read as references to
AUSTEL
Before 1 July 1997, any reference in Part XIC of the Trade
Practices Amendment (Telecommunications) Bill 1996 will have effect as if it
were a reference to AUSTEL. Anything done by, or in relation to, AUSTEL under
that Part before 1 July 1997 is to be considered to have been done by, or in
relation to, the ACA from that date.
Division 4––Transitional provisions relating to carrier licences
Clause 43 – Definitions
Clause 43 defines
‘ACA’ and ‘AUSTEL’ for the purposes of Division 4 of
Part 3.
Clause 44 – Replacement of existing carrier
licences
Persons holding carrier licences under the
Telecommunications Act 1991 as at 4 June 1997 will be deemed to have been
granted a carrier licence under the proposed Telecommunications Act 1996
on 1 July 1997 (cls. 44(1) and (2)). This will not, however, prevent the ACA
from cancelling the licence in accordance with proposed
s. 71 of the
Telecommunications Act 1996 (eg. for failing to pay the annual carrier
licence charge or the universal service levy (cl. 44(3)).
From 5–30
June 1997 inclusive, the Minister will be able to make carrier licence
conditions in relation to each existing carrier’s new licence without the
new (30 day) formal consultation requirements applying (cls. 44(4) and (6)). As
soon as practicable after the Minister does so, and before 1 July 1997, the
Minister will be required to give the carrier a copy of the instrument imposing,
varying or revoking the licence conditions (cl. 44(5)).
From 5–30
June 1997 inclusive, an existing carrier will be able to apply to AUSTEL for a
nominated carrier declaration in relation to a specified network unit (cls.
44(7) and (8)). (Under Division 4 of Part 2 of the Telecommunications Bill 1996,
a carrier will be able to apply for a nominated carrier declaration where the
owner or owners of a network unit wish to allow the unit to be used to supply
carriage services to the public, but:
• do not wish to be bound by
the carrier obligations; and
• the carrier is willing to accept
responsibility for those obligations.
Clause 45 – AUSTEL may
receive applications for carrier licences before 1 July 1997
AUSTEL
will be able to receive applications for carrier licences from 5–30 June
inclusive (cl. 45). It is intended that the decision whether or not to grant
such a licence would be made by the ACA on or after 1 July
1997.
Clause 46 – Acts of AUSTEL to be attributed to
ACA
Anything done by, or in relation to, AUSTEL under the proposed
Telecommunications Act 1996 before 1 July 1997 (such as the receipt of an
application for a carrier licence or the making of a nominated carrier
declaration) will be deemed to have been done by, or in relation to the ACA (cl.
46).
Division 5––Transitional provisions relating to
technical standards
under section 244 of the Telecommunications Act
1991
Clause 47 – Technical standards to continue in force as industry
standards
Under s. 244 of the Telecommunications Act 1991, the
Minister may direct AUSTEL to determine a technical standard about network
matters and AUSTEL is required to comply with such a direction.
Any
technical standard in force under s. 244 on 30 June 1997 will have effect from 1
July 1997 as if it were an industry standard determined by the ACA under cl. 121
of the Telecommunications Bill 1996 and as if the ACA had consulted with the
relevant section of the telecommunications industry, members of the public, the
ACCC, the TIO and the Privacy Commissioner as required by cls. 121(1) and (3),
129, 130 and 131 of that Bill (cls. 47(1) and (2)).
This does not,
however, prevent the deemed industry standard from being varied or revoked in
accordance with cls. 127 or 128 of the Telecommunications Bill 1996
(cl.
47(3)).
Division 6––Transitional provisions relating to
indicative performance standards
Clause 48 – Indicative performance standards to continue in
force
Paragraph 38(2)(b) of the Telecommunications Act 1991
provides that AUSTEL’s functions include developing indicative performance
standards relating to: the quality of standard telephone services that carriers
supply to consumers; goods and services that carriers supply to consumers in
connection with supplying standard telephone services to them: and other
telecommunications services in relation to which AUSTEL thinks it appropriate to
develop such standards. Paragraph 38(2)(c) requires AUSTEL to monitor and
report to the Minister on the performance of carriers and others in meeting
these indicative performance standards.
The ACA will be required to
monitor and report to the Minister on the performance of carriers and others in
meeting any indicative performance standard in force under paragraph 38(2)(b) of
the Telecommunications Act 1991 on 30 June (cl. 48(1) and (2)). This
obligation will cease if an industry code is registered, or an industry standard
is determined, under Part 6 of the Telecommunications Bill 1996 and is expressed
to replace the indicative performance standard under paragraph 38(2)(b) (cl.
48(3)).
Division 7––Transitional provisions relating to
the universal service regime
Subdivision A––Certain
instruments to continue in force
Clause 49 – Universal service obligation––payphones at
specified locations
Subsection 288(1) of the Telecommunications
Act 1991 provides that the universal service obligation is the
obligation:
(a) to ensure that the standard telephone service is
reasonably accessible to all people in Australia on an equitable basis, wherever
they reside or carry on business; and
(b) to supply the standard
telephone service to all people in Australia; and
(c) to ensure that
payphones are reasonably accessible to all people in Australia on an equitable
basis, wherever they reside or carry on business; and
(d) to supply,
install and maintain payphones in Australia.
Subsections 288(2) and (3)
of the Telecommunications Act 1991 empower the Minister to determine, by
notice in the Commonwealth Gazette, that it is part of the universal
service obligation to supply, install and maintain payphones at specified
locations in Australia. The Minister will have similar power under cls. 144(3)
and (4) of the Telecommunications Bill 1996.
Any determination made by
the Minister under s. 288(2) of the Telecommunications Act 1991 will have
effect under the proposed Telecommunications Act 1996 as if it had been
made under cl. 144(3) on 1 July 1997 and as if it had been gazetted as required
by cl. 144(4) of that Bill (cl. 49(2)).
Clause 50 – National
universal service provider
Under s. 290(1) of the
Telecommunications Act 1991, the Minister may declare a carrier to be the
universal carrier for Australia.
Clause 50 provides that any such
declaration in force immediately before 1 July 1997 will have effect as if it
were a declaration made immediately before 1 July 1997 under proposed s. 145(1)
of the Telecommunications Act 1996 stating that the person is the
national universal service provider
Clause 51 – Regional
universal service provider
Under s. 290(2) of the
Telecommunications Act 1991, the Minister may declare a carrier to be the
universal service carrier for a specified service area.
Clause 51
provides that any such declaration in force immediately before 1 July 1997 will
have effect as if it were a declaration made immediately before 1 July 1997
under proposed s. 145(2) of the Telecommunications Act 1996 stating that
the person is the regional universal service provider for that
area.
Clause 52 – Directions about declaring net cost
areas
Under s. 295 of the Telecommunications Act 1991, the
Minister may give AUSTEL directions about the criteria it should apply or the
matters to which it should have regard in deciding whether or not to declare an
area as a net cost area for a financial year.
Clause 52 provides that the
proposed Telecommunications Act 1996 has effect, in relation to a
direction made under s. 295 of the Telecommunications Act 1991 and in
force immediately before 1 July 1997 as if the direction had been given to the
ACA under proposed s. 173 of the proposed Telecommunications Act 1996
(which is based on s. 295 of the Telecommunications Act 1991) at the
beginning of 1 July 1997.
Clause 53 – Determinations about
working out net universal service costs
Under s. 302 of the
Telecommunications Act 1991, AUSTEL may make written determinations about
working out a carrier’s net universal service cost. In particular, AUSTEL
may make determinations in relation to determining the amount referred to in
certain paragraphs of the definition of ‘avoidable costs’ and in the
definition of ‘revenue forgone’ in s. 301(2) of that
Act.
Clause 53 provides that the Telecommunications Act 1996 will
have effect in relation to a determination in force under s. 302 of the
Telecommunications Act 1991 immediately before 1 July 1997 as
if:
• the determination had been made under s. 180 of the proposed
Telecommunications Act 1996 (which deals with ACA determinations about
working out a universal service provider’s net universal service cost) at
the beginning of 1 July 1997;
• each reference in the determination
to s. 302(2) of the Telecommunications Act 1991 were a reference to s.
177(2) of the proposed Telecommunications Act 1996 (which deals with the
meaning of ‘avoidable costs’ and ‘revenue forgone’);
and
• the requirements of proposed ss. 180(2) and (3) of the
proposed Telecommunications Act 1996 (which provide that the
determination is a disallowable instrument and may only be made with the
Minister’s consent and following consultation with participating carriers)
had been satisfied.
Clause 54 – Revocation and variation of
instruments
Nothing in Subdivision A of Division 7 will prevent the
revocation or variation of an instrument of a kind dealt with in that
Subdivision.
Subdivision B––Phase-out of former universal service regime
Clause 55 – Phase-out of former universal service
regime
Notwithstanding the repeal of the current Telecommunications
Act by Schedule 5 to the Bill, Part 13 of that Act, dealing with the assessment,
collection and distribution of the universal service levy, will continue to
apply on and after 1 July 1997 in relation to:
• levy, and levy
debit balances, in relation to the current and previous financial years;
and
• payments under s. 325 of that Act, dealing with levy
distribution to participating carriers, and levy credit balances, in relation to
the current and previous financial years;
as if the current
Telecommunications Act had not been repealed, each reference in Part 13 of that
Act to AUSTEL were a reference to the ACA and a general telecommunications
licence or a public mobile licence in force under that Act as at the end of 30
June 1997 had remained in force after 30 June 1997 (cl. 55(1)).
The
repeal of the Telecommunications (Universal Service Levy) Act 1991 by
Schedule 5 to the Bill will not affect the application of that Act
to:
• levy and levy debit balances in relation to the current and
previous financial years; and
• a declaration under s. 4(1) of that
Act (that a specified carrier is a participating carrier) that was in force at
any time before 1 July 1997 (cl. 55(2)).
Subdivision C––The Universal Service Fund and
the Universal Service Reserve
Section 322 of the Telecommunications Act 1991 establishes an account
called the Universal Service Fund, which is a trust account for the purposes of
s. 62A of the Audit Act 1901 and is currently administered by the
Department of Communications and the Arts. Among other things, amounts of levy
paid under Part 13 of the Telecommunications Act 1991 are paid into this
Fund. Clause 202 of the proposed Telecommunications Act 1996 establishes
the same account as the Universal Service Reserve.
The Financial
Management and Accountability Bill 1996 (‘FMA Bill’) is one of a
package of 3 Bills that are intended to replace the Audit Act 1901. The
FMA Bill is concerned with the regulatory/accounting/accountability framework
for dealing with and managing the money and property of the Commonwealth. Under
the FMA Bill, the Universal Service Reserve will become part of the Reserved
Money Fund.
Clause 56 – Transition from the Universal Service
Fund to the Universal Service Reserve in a case where the Financial
Management and Accountability Act 1996 commences on 1 July
1997
If the FMA Bill is passed and commences on 1 July 1997, money in
the Universal Fund established under s. 322 of the Telecommunications Act
1991 immediately before 1 July 1997 will be required to be transferred to
the Universal Service Reserve referred to in
cl. 202 of the
Telecommunications Bill 1996 on 1 July 1997 (cls. 56(1) and
(2)).
Subdivision B of Division 7 continues the operation of Part 13 of
the current Telecommunications Act, dealing with the assessment, collection and
distribution of the universal service levy, on and after 1 July 1997, for
certain purposes. The effect of
cl. 56(3) is that for the purpose of this
continued operation:
• the Universal Service Fund established under
s. 322 of the current Act is to be treated as if it were the Universal Service
Reserve established under cl. 202 of the Telecommunications Bill
1996;
• amounts equal to amounts of universal service levy and
amounts equal to interest from money in the Universal Service Fund paid into the
Consolidated Revenue Fund are to be transferred to the Universal Service
Reserve;
• s. 324 of the current Act, dealing with the purposes of
the Universal Service Fund, is to treated as if it dealt with the purposes of
the Universal Service Reserve; and
• for the purposes of s. 325 of
that Act, where a participating carrier has a levy credit balance for a
financial year, an amount equal to the amount of that balance is payable to the
carrier out of the Universal Service Reserve.
On and after 1 July 1997, a
reference in an instrument to the Universal Service Reserve is to be read as
including a reference to the Universal Service Fund, unless the context
otherwise requires (cl. 56(4)).
The Trust Fund established under the
Audit Act 1901 is appropriated for the purposes of cl. 56 (cl. 56(5)).
(The Trust Fund is the accounting category of moneys earmarked for specific
future spending purposes.)
The Consolidated Revenue Fund is appropriated
for the purposes of s. 323 of the Telecommunications Act 1991 (which, as
modified by cl. 56, deals with payments into the Universal Service
Reserve).
Clause 57 – Transitional provisions that apply in a
case where the Financial Management and Accountability Act 1996 commences
after 1 July 1997
If the FMA Bill is passed and commences after 1
July 1997, during the period beginning on 1 July 1997 and ending when the FMA
Bill commences, the Universal Service Reserve established by cl. 202 of the
Telecommunications Bill 1996 will be treated as a continuation of the Universal
Service Fund established under s. 322 of the current Telecommunications Act
(cls. 57(1) and (2)).
Subdivision B of Division 7 continues the operation
of Part 13 of the current Telecommunications Act, dealing with the assessment,
collection and distribution of the universal service levy, on and after 1 July
1997, for certain purposes. The effect of
cl. 57(3) is that for the purpose
of this continued operation after the commencement of the FMA
Bill:
• the Universal Service Fund established under s. 322 of the
current Act is to be treated as if it were the Universal Service Reserve
established under cl. 202 of the Telecommunications Bill
1996;
• amounts equal to amounts of universal service levy and
amounts equal to interest from money in the Universal Service Fund paid into the
Consolidated Revenue Fund are to be transferred to the Universal Service
Reserve;
• s. 324 of the current Act, dealing with the purposes of
the Universal Service Fund, is to treated as if it dealt with the purposes of
the Universal Service Reserve; and
• for the purposes of s. 325 of
that Act, where a participating carrier has a levy credit balance for a
financial year, an amount equal to the amount of that balance is payable to the
carrier out of the Universal Service Reserve.
Money in the Universal
Service Reserve established by cl. 202 of the Telecommunications Bill 1996
immediately before the commencement of the FMA Bill will be required to be
transferred to the new Universal Service Reserve (being part of the Reserved
Money Fund under the FMA Bill) immediately after that time (cl.
57(4)).
After the commencement of the FMA Bill, a reference in an
instrument to the new Universal Service Reserve (being part of the Reserved
Money Fund under the FMA Bill) is to be read as including a reference to the old
Universal Service Reserve (established under cl. 202 of the Telecommunications
Bill), unless the context otherwise requires (cl. 57(5)).
The Trust Fund
established under the Audit Act 1901 is appropriated for the purposes of
cl. 57 (cl. 57(6)). (The Trust Fund is the accounting category of moneys
earmarked for specific future spending purposes.)
The Consolidated
Revenue Fund is appropriated for the purposes of s. 323 of the
Telecommunications Act 1991 (which, as modified by cl. 57, deals with
payments into the Universal Service Reserve).
Division 8––Transitional provisions relating to
the
chart of accounts and the cost allocation manual
Clause 58 – Chart of accounts and cost allocation manual to remain
binding until record-keeping rules made
Under s. 80 of the current
Telecommunications Act, AUSTEL is required to develop a chart of accounts and a
cost allocation manual for use by the carriers. The chart or manual is binding
on a carrier from either the day when a copy of it is received by the carrier or
the day specified in the chart or manual as its day of effect, whichever is the
later (s. 81). AUSTEL may declare that the chart or manual is binding on a
particular carrier with certain modifications (s. 82). A carrier is required to
keep books and records in accordance with the chart and manual (s. 83). AUSTEL
is able to give directions to carrier about how the carrier is to comply with
its obligations under s. 83
(s. 85). The obligations of a carrier under s.
83 are additional to, and do not derogate from, obligations imposed by or under
any other law such as the Income Tax Assessment Act 1936 or the
Corporations Law (s. 87).
Sections 80, 81, 82 and 83 of the current
Telecommunications Act and ss. 85 and 87 of that Act, in so far as they relate
to s. 83, are referred to in cl. 58(6) as the COACAM provisions. From 1 July
1997 until the ACCC first makes record-keeping rules under proposed s. 151BU of
the TPA, the COACAM provisions will continue to apply in relation to an existing
carrier as if they had not been repealed by Schedule 5 to the Bill, as if each
reference in the COACAM provisions to AUSTEL were a reference to the ACCC and
each reference in those provisions to a carrier (within the meaning of the
current Telecommunications Act) were a reference to a carrier within the meaning
of the proposed Telecommunications Act 1996 (cl. 58(1) and
(2)).
Anything done by AUSTEL in relation to an existing carrier under
the COACAM provisions before 1 July 1997 will have effect, during the period
from 1 July 1997 and ending when the ACCC makes record-keeping rules, as if the
thing had been done by the ACCC (cl. 58(3)).
An existing carrier will be
required to comply with the COACAM provisions during the period from 1 July 1997
and ending when the ACCC first makes record-keeping rules as if those provisions
were sections of the proposed Telecommunications Act 1996. Failure to
comply with those provisions will amount to a breach of a carrier licence
condition for the purposes of that Act (cl. 58(4)).
The powers under ss.
80(2) and 82 of the current Telecommunications Act to revise the chart of
accounts or cost allocation manual, or to declare the chart or manual to be
binding on a particular carrier with such modifications as the declaration
specifies, will not be able to be exercised in relation to an existing carrier
during the period from 1 July 1997 and ending when the ACCC first makes
record-keeping rules (cl. 58(5)).
Division 9––Transitional provisions relating to
the
international aspects of carriers’ activities
Clause 59 – INTELSAT and Inmarsat––policy
notifications and directions to continue in force
Under s. 74 of the
current Telecommunications Act, the Minister may notify a carrier that is a
Signatory to the INTELSAT Agreement or that is a Signatory to the Convention on
the International Maritime Satellite Organization (Inmarsat) of the general
policies of the Commonwealth Government that are to apply in relation to the
carrier’s performance of its functions as a Signatory. The Minister may
also give the carrier such directions as he or she thinks necessary in order to
give effect to these policies. It is a carrier licence condition that the
carrier must perform its functions as Signatory in a way that is consistent with
such Ministerial notifications or directions.
Notwithstanding the repeal
of the current Telecommunications Act by Schedule 5 to the Bill, a notification
or direction given under s. 74 of the current Act that is in force on 30 June
1997 will continue to apply to an existing carrier that is a Signatory to
INTELSAT or Inmarsat during the period beginning on 1 July 1997 and ending on
the first occasion when the Minister gives a direction to a Signatory under cl.
350 of the Telecommunications Bill 1996 (which is based on s. 74 of the current
Act).
Division 10––Transitional provisions relating to cabling and customer equipment
This Division provides for the continued effect of certain provisions of
the Telecommunications Act 1991 (the 1991 Act) relating to customer
equipment and cabling connection orders, connection permits, cabling licences,
and declarations about application of cabling provisions.
Clause 60
– Continued effect of orders relating to the connection of customer
equipment and customer cabling
Subsection 281(6) of the 1991 Act
allows AUSTEL to issue an order requiring a carrier to provide a service
necessary for the connection of customer equipment or cabling to the
carrier’s network, where AUSTEL is satisfied that such a connection would
not be a threat to the safety of a person or of the proper functioning of the
network. Such an order is usually applied for when a carrier disconnects a
person’s equipment or cabling.
Subsection 282(1) of the 1991 Act
allows an order under s. 281(6) to include a direction that the carrier pay
compensation to the applicant for the order, where AUSTEL is satisfied the
applicant suffered a loss as a result of the disconnection.
Clause 60
applies to a person who was a carrier immediately before 1 July 1997, and any
such order or direction (with which the carrier has not yet complied) made
before that date applies to that carrier (cl. 60(1)).
Subclause 60(2)
provides that any such order or direction continues to have effect despite the
repeal of the 1991 Act.
Subclause 60(3) provides that after 30 June 1997,
the carrier continues to be required to comply with the order or
direction.
Subclause 60(4) provides that the carrier licence condition,
specified in Part 1 of Schedule 1 to the proposed Telecommunications Act
1996 which requires a carrier to comply with that Act, applies to this
clause as if it were a provision of that Act.
Subclause 60(5) makes it
clear that after 30 June 1997, the ACA may revoke or vary any such order or
direction by virtue of s.33 of the Acts Interpretation Act
1901.
Subclause 60(6) defines the meaning of
‘ACA’.
Clause 61 – Continued effect of cabling
licences
Section 271 of the 1991 Act allows AUSTEL to issue cabling
licences that authorise a person to perform cabling work in relation to types of
customer cabling. AUSTEL may also impose conditions on those
licences.
Clause 61 applies to all such licences that were in force
immediately before 1 July 1997 (cl. 61(1)).
Subclause 61(2) continues the
effect of all such licences from 1 July 1997 as if they were licences issued by
the ACA under proposed s. 411 of the Telecommunications Act 1996
authorising any type of cabling work determined by the ACA for the purposes of
Division 9 of Part 21 of that Act which is a kind of cabling work to which the
former licence related. All conditions applying to such licences also continue
to apply as if they were conditions imposed under proposed s. 416 of that Act
(cl. 61(2)(c)). The requirements under proposed s. 411 in relation to the
issuing of licences are deemed to have been complied with (cl.
61(2)(d)).
Subclause 61(3) makes it clear that the ACA may exercise the
powers under proposed ss. 421, 422 and 416 of the Telecommunications Act
1996 respectively to suspend or cancel such licences or change the
conditions applying to the licences.
Subclause 61(4) carries over the
original period specified in those licences as if they were periods specified
under proposed s. 415 of the Telecommunications Act
1996.
Clause 62 – Declarations about application of cabling
provisions
Section 280 allows AUSTEL to limit the application of the
cabling licence provisions in Division 7 of Part 12 of the 1991 Act in relation
to specified kinds of customer cabling.
Clause 62 applies to such
declarations that were in force immediately before 1 July 1997 (cl. 62(1)).
Subclause 62(2) continues the effect of all such declarations from 1
July 1997 as if they were declarations made by the ACA under proposed s. 423(1)
of the Telecommunications Act 1996.
Subclause 62(3) makes it clear
that after 30 June 1997, the ACA may revoke or vary any such declaration by
virtue of s.33 of the Acts Interpretation Act 1901.
Division 11––Transitional provisions relating
to the
protection of the confidentiality of
communications
This Division provides for the continued protection of information,
concerning an individual’s personal particulars or that relates to the
contents of a communication carried over a telecommunications network, that came
into another person’s knowledge or possession before 1 July 1997. Such
information is currently protected under s. 88 of the Telecommunications Act
1991 (the 1991 Act).
Clause 63 – Confidentiality of
communications carried before 1 July 1997
This clause applies to
information, concerning an individual’s personal particulars or that
relates to the contents of a communication carried over a telecommunications
network, that came into another person’s knowledge or possession before 1
July 1997 (cl. 63(1)).
Subclause 63(2) continues the effect of s. 88 of
the 1991 Act after 1 July 1997 in relation to such information despite its
repeal. That section provides for primary prohibitions on the use or disclosure
of such information.
Subclause 63(3) provides that terms used in this
clause have the same meaning as in
s. 88 of the 1991 Act.
Clause
64 – Confidentiality of communications carried on or after 1 July
1997
Part 13 of the proposed Telecommunications Act 1996
provides for the protection of information obtained in connection with the
provision of certain carriages services and emergency call services. Clause 64
provides that this Part does not apply to information obtained before 1 July
1997 unless it is information of a kind covered by the Part.
Division 12––Transitional provisions relating
to reviews
and reports about the telecommunications
industry
Clause 65 – Reviews and reports for the year ending on 30 June
1997
Under s. 399(1) of the current Telecommunications Act, AUSTEL is
required to review, and report to the Minister on, competitive safeguards within
the telecommunications industry. Under s. 399(2), AUSTEL is required to review,
and report to the Minister on, carrier performance. AUSTEL’s reports
under ss. 399(1) and (2) are to be provided to the Minister as soon as
practicable after each 1 July (s. 399(4)) and are to be tabled in
Parliament.
As a result of the proposed transfer on 1 July 1997 of
competition policy functions from AUSTEL to the ACCC, the ACCC will be required
to prepare the competitive safeguards report with respect to the 1997/98 and
following financial years (see proposed s. 151CL of the TPA). With respect to
the 1996/97 financial year, cl. 65 of the Bill will impose on the ACCC
AUSTEL’s obligations to report to the Minister under
ss. 399(1) and
(4) of the Telecommunications Act 1991 as soon as practicable after
1
July 1997.
Under cl. 104 of the Telecommunications Bill 1996, the ACA
will be required to monitor, and report each financial year to the Minister on,
all significant matters relating to the performance of carriers, as well as
service providers. The ACA will be required to provide the Minister with its
report as soon as practicable after 1 July 1998 and each subsequent 1 July.
With respect to the 1996/97 financial year, cl. 65 of the Telecommunications
(Transitional Provisions and Consequential Amendments) Bill 1996 imposes on the
ACA AUSTEL’s obligation to report to the Minister under
s. 399(2) and
(4) as soon as practicable after 1 July 1997.
Division 13––Transitional provisions relating
to anti-competitive
conduct in the telecommunications
industry
Clause 66 – Modified application of Part XIB of the Trade
Practices Act 1974
Before 1 July 1997, proposed Part XIB of the
TPA, dealing with anti-competitive conduct, will have effect as if a reference
in that Part to a carrier were a reference to a carrier within the meaning of
the Telecommunications Act 1991 and a reference to a carrier in cl. 86 of
the Telecommunications Bill 1996 (dealing with carriage service providers) were
a reference to a carrier within the meaning of the Telecommunications Act
1991.
Division 14––Transitional provisions relating to the numbering plan
This Division provides for the carryover of numbers allocated before 1
July 1997 to the new numbering regime under the proposed Telecommunications
Act 1996.
Clause 67 – Numbers taken to have been allocated
at the beginning of 1 July 1997
Prior to the passage of the
Telecommunications Act 1991, Telstra and its predecessors were solely
responsible for allocating numbers. Notwithstanding AUSTEL’s current role
in allocating numbers, Telstra still holds some number ranges not allocated by
AUSTEL and has continued to allocate those numbers to its
customers.
Clause 67 allows the ACA to make a declaration, in the new
numbering plan made by the ACA under proposed s. 439 of the
Telecommunications Act 1996, that these numbers will be taken to have
been allocated to a specified person at the beginning of
1 July 1997 (cl.
67(1)).
Subclause 67(2) makes it clear that the deemed allocation of
these numbers will not be subject to payment of an allocation charge determined
under Part 2 of the proposed Telecommunications (Numbering Charges ) Act
1996.
Subclause 67(3) makes it clear that such numbers may be
transferred, surrendered, or withdrawn under the numbering plan made under
proposed s. 439 of the Telecommunications Act 1996.
Subclause
67(4) defines terms used in this clause.
Clause 68 – Modified
procedural requirements for the first numbering plan
Proposed s. 444
of the new Telecommunications Act 1996 requires the ACA to follow certain
procedural requirements in making a numbering plan under proposed s. 439 of that
Act. Preparations are underway to have a new numbering plan prepared for
commencement on 1 July 1997, the commencement of the new Act and
telecommunications regime. It is not clear that there will be sufficient
available time following passage of the new legislation to follow the procedures
set out in s. 444. Clause 68 provides that s. 444 does not apply to the making
of a plan before 1 July 1997 (which AUSTEL will be permitted to do by clause 69
of this Bill and s.4 of the Acts Interpretation Act 1901).
Division 15––Exercise of powers by AUSTEL before relevant commencement dates
Clause 69 – Exercise of powers by AUSTEL before 1 July 1997
– general
Section 4 of the Acts Interpretation Act 1901
provides that where an Act that is not to come into operation immediately upon
its enactment confers power to make an appointment or to make an instrument of a
legislative or administrative character (including rules and regulations) then,
unless the contrary intention appears, the power may be exercised, and anything
may be done for the purpose of enabling the exercise of the power or of bringing
the appointment or instrument into effect, before the Act concerned comes into
operation as if it had come into operation.
The relevant appointment or
instrument cannot take effect before the commencement of the relevant provisions
of the new Act.
Clause 69 applies if:
• a provision of the
proposed Telecommunications Act 1996 (other than section 56, dealing with
the grant of carrier licences); or
• a provision of Division 5 of
Part 5 of the proposed Australian Communications Authority Act 1996
(dealing with the power of the ACA to delegate its functions and powers);
or
• a provision of Part 7 of the proposed Australian
Communications Authority Act 1996 (dealing, among other things, with the
power of the ACA to make determinations fixing its charges and to make a
definitions determination);
(called ‘eligible provisions’, as
defined in cl. 70) confers, or will confer, a power on the ACA and, assuming
that Part 3 of the proposed Australian Communications Authority Act 1996
(dealing, among other things, with the establishment of the ACA) had commenced
at the commencement of cl. 69, s. 4 of the Acts Interpretation Act 1901
would have authorised the ACA to exercise that power, or do a particular thing
in relation to the exercise of that power, before 1 July 1997 (cl.
69(1)).
Section 4 of the Acts Interpretation Act 1901 will be
taken to authorise AUSTEL to exercise that power, or do that thing, before 1
July 1997 as if a reference in that eligible provision to the ACA were a
reference to AUSTEL (cl. 69(2)).
Anything done by AUSTEL in accordance
with cl. 69 before 1 July 1997 will have effect, on and after 1 July 1997, as if
it had been done by the ACA (cl. 69(3)).
This mechanism will enable
preparatory work for the commencement of much of the new regime on 1 July 1997
to be done in the period between Royal Assent to the legislation and 1 July.
Note, however, that clause 45 of this Bill creates a special rule for
applications for carrier licences which enables them to be made from 5 June
1997.
Although AUSTEL will be able to do any necessary preliminary work
in relation to the grant of such licences in the lead up to 1 July, any decision
to grant a carrier licence in response to such an application will only be able
to be made by the ACA on or after 1 July 1997.
Clause 70 –
Definitions
Clause 70 sets out definitions of terms used in Division
15. The definition of the key term ‘eligible provision’ is
discussed in the above commentary on cl. 69.
Division 16––Transitional provisions relating to eligible combined areas
Clause 71 – Eligible combined areas
Under s. 16(1) of
the Telecommunications Act 1991, the Minister may determine that
specified combined areas are eligible combined areas for the purposed of s.
12(3)(b) of that Act. That provision provides that places are in the same area
if they are situated in properties each of which forms part of a combined area
and, because of a determination in force under s. 16, that combined area is an
eligible combined area for the purposes of s. 12(3)(b). On 26 July 1991, the
then Minister made the Telecommunications (Eligible Combined Areas)
Determination No. 1 of 1991 under s. 16(1).
Clause 71 applies to a
determination in force under s. 16(1) of the Telecommunications Act 1991
immediately before the commencement of Part 2 of the proposed
Telecommunications Act 1996 (which, in Division 4, deals with rules about
distinct places, including the concept of eligible combined areas) (cl.
71(1)).
The proposed Telecommunications Act 1996 will have effect
as if:
• the determination had been made by the Minister under s.
40(1) of the proposed Telecommunications Act 1996 (dealing with the
Minister’s power to determine that specified combined areas are eligible
combined areas) immediately after the commencement of that
provision;
• a reference in the determination to the
Telecommunications Act 1991 were a reference to the proposed
Telecommunications Act 1996;
• a reference in the
determination to s. 13 of the Telecommunications Act 1991 (dealing with
the circumstances in which an area of land is a property for the purposes of the
rules about distinct places) were a reference to s. 37 of the proposed
Telecommunications Act 1996 (which is based on s. 13 of the current Act);
and
• a reference in the determination to s. 12(3)(b) of the
Telecommunications Act 1991 were a reference to corresponding s. 36(3)(b)
of the proposed Telecommunications Act 1996 (cl. 71(2)).
Proposed
s. 71(2) will not prevent the determination referred to in that provision from
being varied or revoked in accordance with s. 33(3) of the Acts
Interpretation Act 1901 (cl. 71(3)).
Division 17––Transitional provisions relating
to actions under
sections 95 and 186 of the Telecommunications Act
1991
Clause 72 – Actions under sections 95 and 186 of the
Telecommunications Act 1991
Despite the repeal of ss. 95 and
186 of the Telecommunications Act 1991 (dealing with carriers’
rights, with AUSTEL’s consent, to apply to the Federal Court for relief in
connection with a contravention of their reserved rights and the rights of
certain persons to apply to the Federal Court for relief in connection with a
contravention of the non-discrimination rules in s. 183 or 184), these
provisions will continue to apply, on and after 1 July 1997, in relation to a
contravention that occurred before that date, as if:
• those
sections had not been repealed;
• a person who was a carrier
immediately before 1 July 1997 had remained a carrier on and after that date;
and
• in the case of s. 95 of the current Act, a reference in that
section to AUSTEL included a reference to the ACA (cl. 72(1)).
Section
395 of the Telecommunications Act 1991 (dealing with the Federal
Court’s powers to grant injunctions) will continue to apply, on and after
1 July 1997, in relation to a contravention of s. 95 or s. 186 that occurred
before that date, as if:
• s. 395 had not been
repealed;
• a person who was a carrier immediately before 1 July
1997 had remained a carrier on and after that date; and
• in the
case of s. 95, a reference in that section to AUSTEL included a reference to the
ACA (cls. 72(2) and (3)).
Division 18––Transitional provisions relating to interception capabilities
Clause 73 – Interception capabilities
Under s. 73A of
the Telecommunications Act 1991, the Minister may give the holder of a
general telecommunications licence or a public mobile licence a written notice
requiring that a telecommunications system operated, or proposed to be operated,
by the holder have a specified kind of interception capability.
The
proposed Telecommunications Act 1996 will have effect as if a notice in
force under s. 73A(3) of the Telecommunications Act 1991 immediately
before 1 July 1997 had been given under proposed s. 307 of the
Telecommunications Act 1996 (which enables the Minister to give a carrier
or carriage service provider a written notice requiring that a controlled
network, a controlled facility or a controlled carriage service have a specified
kind of interception capability) (cls. 73(1) and (2)).
The proposed
Telecommunications Act 1996 will not, however, have this effect unless
the notice would have been authorised under proposed s. 307 of the
Telecommunications Act 1996 if it had been given under that section at
the beginning of 1 July 1997 (cl. 73(3)).
A notice in force under s. 73A
of the Telecommunications Act 1991 immediately before 1 July 1997 will be
able to be varied or revoked in accordance with s. 33(3) of the Acts
Interpretation Act 1901 (cl. 73(4)).
Division 19––Transitional provisions relating to the AMPS plan
Clause 74 – AMPS plan
Clause 2.2 of the
Telecommunications (Public Mobile Licences) Declaration (No. 1) of 1992 provides
that between 1 January 1996 and 1 January 2000, the holder of a public mobile
licence must comply with any plan in writing determined by the Minister in
relation to ceasing installation or operation of an Advanced Mobile Phone System
(AMPS) network, ceasing the supply of AMPS services or ceasing to use the
radiocommunications spectrum used in relation to AMPS services.
The
proposed Telecommunications Act 1996 will have effect as if such a plan
in force immediately before 1 July 1997 had been determined by the Minister
under proposed
s. 346(2) of that Act (dealing with the Minister’s
power to determine a plan to phase out AMPS) (cls. 74(1) and (2)).
This
will not prevent any current plan being varied or revoked in accordance with
s. 33(3) of the Acts Interpretation Act 1901 (cl. 74(3)).
Division 20––Transitional provisions relating
to technical
standards about customer equipment and customer
cabling
Clause 75 – Technical standards about customer equipment and
customer cabling
Section 246 of the Telecommunications Act
1991 (the 1991 Act) allows AUSTEL to make technical standards for customer
equipment and customer cabling that is connected to a telecommunications
network. Proposed s. 361 of the Telecommunications Act 1996 allows the
ACA to make standards for customer equipment and customer cabling used in
connection with a telecommunications network.
The standards-making power
under the 1991 Act is much broader than that under the proposed
Telecommunications Act 1996.
Clause 75 gives transitional
operation to any standards made under the 1991 Act (old standards) (cl. 75(1)),
that were in force immediately before 1 July 1997, and deems them to have been
made under proposed s. 361 of the Telecommunications Act 1996 (cl.
75(2)). The procedural requirements under proposed s. 363 of that Act for
making standards under proposed s. 361 are deemed to have been complied with in
relation to an old standard that is given transitional operation.
If,
however, there is anything in an old standard that is inconsistent with proposed
s. 361(2) of the Telecommunications Act 1996 (which provides for the
matters in relation to which a standard may be made under that provision), then
the old standard will not be given transitional operation, and will expire upon
the repeal of the 1991 Act (cl. 75(3)).
Subclause 75(4) makes it clear
that after 30 June 1997, the ACA may revoke or vary any such standard by virtue
of s.33 of the Acts Interpretation Act 1901.
Division 21––Transitional provisions relating
to tariffs for
the supply of carriage services
Clause 76 – BCS tariff to continue to apply
BCS
tariffs, within the meaning of the current Telecommunications Act, in force
immediately before 1 July 1997, will continue in force as if they were a
standard form of agreement formulated under Part 23 of the proposed
Telecommunications Act 1996 during the period beginning on 1 July 1997
and ending at the earliest of the following times:
• the end of 31
December 1997;
• the time when the tariff is
varied;
• the time when the tariff is revoked.
Part 23 of
the proposed Telecommunications Act 1996 will have effect during this
period in relation to such a BCS tariff (cls. 76(1), (2), (5) and (6)). A copy
of the BCS tariff will not, however, be required to be given to the ACA (cl.
76(4)).
Notwithstanding the continued operation of a BCS tariff by cl.
76, it will still be able to be varied or revoked (cl. 76(3)).
Part
4––Amendments
Clause 77 – Schedule(s)
Clause 2 of the Bill provides
that Part 4 and Schedule 1 to the Bill commence on 1 July 1997. It also
provides that:
• if the proposed Broadcasting Services Amendment
Act 1996 (which, among other things, makes an amendment to s. 171 of the
Broadcasting Services Act 1992) does not commence before 1 July 1997, the
amendments made to that section by items 13 and 14 of Schedule 1 to the Bill
will commence immediately after the commencement of the proposed Broadcasting
Services Amendment Act 1996 (cl. 2(5)); and
• if the proposed
Legislative Instruments Act 1996 (which, among other things, specifies
existing telecommunications and radiocommunications legislation as legislation
providing for legislative instruments likely to have an effect on business) does
not commence before 1 July 1997, the amendments made to this specification by
items 37, 38 and 39 of Schedule 1 to the Bill will commence immediately after
the commencement of the Legislative Instruments Act 1996 (cl.
2(6)).
Clause 78 provides that, subject to cl. 2, the Acts specified in a
Schedule to the Bill are amended in accordance with the applicable items in that
Schedule, and that the other items in that Schedule (dealing with transitional
matters) have effect according to their terms.
Schedule 1––General
amendments
Items 1 and 2 – Amendments to section 77 of the Australian
Broadcasting Corporation Act 1983
Section 77 of the Australian
Broadcasting Corporation Act 1983 provides that for the purpose of providing
and operating a transmitting station, a person acting under the authority of the
Minister may:
(a) erect, place and maintain any electric line that is
necessary for conveying electric current to, or for the operation of, the
transmitting station; and
(b) arrange for and obtain from any person the
supply of any electric current that is necessary or advisable for the operation
of the transmitting station.
In respect of the erection, placing and
maintenance of an electric line by a person under paragraph (a) above, that
person has the same powers, and is subject to the same obligations, as are
conferred or imposed on a general carrier under Division 3 of Part 7 of the
Telecommunications Act 1991 to install or maintain a facility within the
meaning of that Act (which relates to carriers’ powers to enter
land).
Part 24 of the proposed Telecommunications Act 1996 gives
effect to the carriers’ powers and immunities set out in Schedule 3 to
that Act. As a consequence, items 1 and 2 amend s. 77 of the Australian
Broadcasting Corporation Act 1983 to provide, in effect, that in respect of
the erection, placing and maintenance of an electric line by a person under
paragraph (a) above, that person has the same powers, and is subject to the same
obligations, as are conferred or imposed on a carrier under Schedule 3 to the
proposed Telecommunications Act 1996 to install or maintain a facility.
The terms ‘carrier’ and ‘facility’ will have the same
meaning as in the proposed Telecommunications Act 1996 and the term
‘maintenance’, in relation to a facility, will have the same meaning
as in proposed cl. 6 of Schedule 3 to that Act.
Items 3 and 4 –
Amendments to subsection 16(4) of the Australian National Railways Commission
Act 1983
Paragraph 16(4)(c) of the Australian National
Railways Commission Act 1983 prohibits the Commission from altering
‘the position of any electricity or telecommunications cable or
wire’ unless it has given reasonable notice, in writing, of its intention
to do so to the authority having the care and management of the road, main,
pipe, cable or wire.
Item 3 replaces the reference in the prohibition to
a telecommunications cable or wire with a reference to a line within the meaning
of the proposed Telecommunications Act 1996. ‘Line’ is
defined in cl. 7 of the Telecommunications Bill 1996 to mean a wire, cable,
optical fibre, tube, conduit, waveguide or other physical medium used, or
capable of being used, or for use, as a continuous artificial guide for or in
connection with carrying communications by means of guided electromagnetic
energy.
Item 4 replaces the final words ‘or wire’ in s. 16(4)
of the Australian National Railways Commission Act with the words ‘wire or
line’. This reference to ‘line’ will mean a line within the
meaning of the proposed Telecommunications Act 1996.
Item 5
– Amendment to section 11 of the Australian Postal Corporation Act
1989
Section 11 of the Australian Postal Corporation Act
1989 provides that that Act has effect subject to the Radiocommunications
Act 1992 and the Telecommunications Act 1991. Item 3 omits the
reference in s. 11 to ‘Telecommunications Act 1991’ and
substitutes a reference to the proposed Telecommunications Act
1996.
Item 6 – Amendment to paragraph 18(da) of the
Australian Postal Corporation Act 1989
Paragraph 18(da) of the
Australian Postal Corporation Act 1989 provides that Australia Post has
power, for or in connection with the performance of its functions, to supply
telecommunications services as defined in section 5 of the Telecommunications
Act 1991.
Item 6 replaces paragraph 18(da) with a provision the
effect of which will be that Australia Post has power, for or in connection with
the performance of its functions, to supply carriage services and content
services within the meaning of the proposed Telecommunications Act
1996.
‘Carriage service’ is defined by cl. 7 of the
Telecommunications Bill 1996 to mean a service for carrying communications by
means of guided and/or unguided electromagnetic energy. The proposed definition
of ‘carriage service’ has the same effect as the definition of
‘telecommunications service’ under the existing Telecommunications
Act.
‘Content service’ is defined by cl. 15 of the
Telecommunications Bill 1996 to mean:
(a) a broadcasting service within
the meaning of the Broadcasting Services Act 1992;
(b) an on-line
information service such as a dial-up information service;
(c) an on-line
entertainment service such as a video-on-demand service or an interactive
computer game service;
(d) any other on-line service such as an education
service provided by a State or Territory government; or
(e) a service of
a kind specified in a Ministerial determination.
Items 7 to 12 –
Amendments to subsection 6(1) and paragraph 158(a) of the Broadcasting
Services Act 1992
Subsection 6(1) of the Broadcasting Services
Act 1992 provides that in that Act, unless the contrary intention appears,
‘line’ has the same meaning as in the Telecommunications Act
1991. Item 7 replaces this definition with a definition which provides
that, unless the contrary intention appears, ‘line’ has the same
meaning as in the proposed Telecommunications Act 1996.
‘Line’ is defined in cl. 7 of the Telecommunications Bill 1996 to
mean a wire, cable, optical fibre, tube, conduit, waveguide or other physical
medium used, or capable of being used, or for use, as a continuous artificial
guide for or in connection with carrying communications by means of guided
electromagnetic energy.
As a consequence of the proposed merger of AUSTEL
and the SMA from 1 July 1997 to form the ACA, item 8 omits the definition of
‘SMA’ from s. 6(1) of the Broadcasting Services Act 1992,
item 11 inserts a definition of ‘ACA’ and item 12 replaces the
reference in paragraph 158(a) of the Broadcasting Services Act to ‘the
SMA’ with a reference to ‘the ACA’.
Subsection 6(1) of
the Broadcasting Services Act defines ‘subscription television
satellite’ as meaning a satellite operated under the general
telecommunications licence that was granted to AUSSAT Pty Ltd (now Optus
Networks Pty Ltd) and notified on 26 November 1991 in Gazette No. S323.
Item 9 amends this definition by omitting the word ‘operated’ and
substituting ‘that was, at any time before 1 July 1997, operated’.
(As a result of proposed s. 44 of the Telecommunications (Transitional
Provisions and Consequential Amendments) Bill 1996, persons holding carrier
licences under the Telecommunications Act 1991 as at 4 June 1997 will be
deemed to have been granted a carrier licence under the proposed
Telecommunications Act 1996 on 1 July 1997.)
Subsection 6(1) of
the Broadcasting Services Act provides that in that Act, unless the contrary
intention appears, ‘telecommunications carrier’ means the holder of
a general telecommunications licence or a public mobile licence under Part 5 of
the Telecommunications Act 1991. Under the proposed
Telecommunications Act 1996, the distinction between a general
telecommunications licence and a public mobile licence will be removed.
Accordingly, item 10 replaces the definition of ‘telecommunications
carrier’ in subsection 6(1) of the Broadcasting Services Act with a
definition defining ‘telecommunications carrier’, unless the
contrary intention appears, to mean a carrier within the meaning of the proposed
Telecommunications Act 1996. ‘Carrier’ is defined in cl. 7
of the Telecommunications Bill 1996 to mean the holder of a carrier licence.
‘Carrier licence’ is defined to mean a licence granted by the ACA
under cl. 56 of the Telecommunications Bill.
Items 13 and 14 –
Amendments of section 171 of the Broadcasting Services Act
1992
Section 171 of the Broadcasting Services Act, as amended by
the proposed Broadcasting Services Amendment Act 1996, empowers the
Minister to direct the ABA to investigate any matter with respect to which the
Parliament is given power to make laws by paragraph 51(v) of the Constitution.
Subsection 171(2) provides, among other things, that without limiting the
generality of the foregoing, the Minister may direct the ABA to investigate any
matter relating to the future regulation or operation of a telecommunications
service. ‘Telecommunications service’ is defined in s. 171(3) to
have the same meaning as in the Telecommunications Act 1991.
As a
result of items 13 and 14, with effect from 1 July 1997 the Minister will be
able to direct the ABA to investigate any matter relating to the future
regulation or operation of a carriage service or a content service as defined by
the proposed Telecommunications Act 1996.
‘Carriage
service’ is defined by cl. 7 of the Telecommunications Bill 1996 to mean a
service for carrying communications by means of guided and/or unguided
electromagnetic energy. The proposed definition of ‘carriage
service’ has the same effect as the definition of
‘telecommunications service’ under the existing Telecommunications
Act.
‘Content service’ is defined by cl. 15 of the
Telecommunications Bill 1996 to mean:
(a) a broadcasting service within
the meaning of the Broadcasting Services Act 1992;
(b) an on-line
information service such as a dial-up information service;
(c) an on-line
entertainment service such as a video-on-demand service or an interactive
computer game service;
(d) any other on-line service such as an education
service provided by a State or Territory government; or
(e) a service of
a kind specified in a Ministerial determination.
Item 15 –
Amendment to subsection 600F(2) of the Corporations Law
Paragraph (d)
of the definition of ‘essential service’ in subsection 600F(2) of
the Corporations Law refers to ‘a telecommunications service within the
meaning of the Telecommunications Act 1991’. The effect of item 15
is to replace this definition with a definition providing that ‘essential
service’ includes a carriage service within the meaning of the proposed
Telecommunications Act 1996. ‘Carriage service’ is defined
by cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying
communications by means of guided and/or unguided electromagnetic energy. The
proposed definition of ‘carriage service’ has the same effect as the
definition of ‘telecommunications service’ under the existing
Telecommunications Act.
Item 16 – Amendment to subsection 76A(1)
(definition of carrier) of the Crimes Act
1914
Subsection 76A(1) of the Crimes Act 1914 provides
that, unless the contrary intention appears, in Part VIA of that Act, which
contains offence provisions relating to computers, ‘carrier’ means a
general carrier or a mobile carrier within the meaning of the
Telecommunications Act 1991 or a person who supplies eligible services
within the meaning of that Act under a class licence issued under s. 209 of that
Act.
Under the proposed Telecommunications Act 1996, the
distinction between a general telecommunications licence and a public mobile
licence will be removed. In addition, under that Act, rather than operating
under a class licensing system, service providers will operate under a system of
standard conditions (known as service provider rules) applying to their
operations. Accordingly, item 16 replaces the definition of
‘carrier’ in s. 76A(1) of the Crimes Act 1914 with a
definition defining ‘carrier’, unless the contrary intention
appears, to mean a carrier or a carriage service provider within the meaning of
the proposed Telecommunications Act 1996. ‘Carrier’ is
defined in cl. 7 of the Telecommunications Bill 1996 to mean the holder of a
carrier licence. ‘Carrier licence’ is defined to mean a licence
granted by the ACA under cl. 56 of the Telecommunications Bill. ‘Carriage
service provider’ is defined in cl. 86 of that Bill.
Items 17
and 18 – Amendments to section 85S of the Crimes Act
1914
Section 85S of the Crimes Act 1914 makes it an
offence for a person to use a ‘telecommunications service’ supplied
by Australia Post to menace or harass a person, or in such a way as would be
regarded by reasonable persons as being offensive. Items 17 and 18 remove the
reference to ‘telecommunications service’ in s. 85S and substitute
‘carriage service’ which is defined to have the same meaning as in
the proposed Telecommunications Act 1996. ‘Carriage service’
is defined by cl. 7 of the Telecommunications Bill 1996 to mean a service for
carrying communications by means of guided and/or unguided electromagnetic
energy. The proposed definition of ‘carriage service’ has the same
effect as the definition of ‘telecommunications service’ under the
existing Telecommunications Act.
Item 19 – Amendment to Part
VIIB (Heading) of the Crimes Act 1914
The heading to Part VIIB
of the Crimes Act 1914 is ‘Offences relating to telecommunications
services’. The Telecommunications Bill 1996 uses the term ‘carriage
service’ rather than ‘telecommunications service’ and also
deals with other services such as ‘content services’. As Part VIIB
deals with offences relating to telecommunications generally, the heading to the
Part is proposed to be amended by item 19 to read ‘Offences relating to
telecommunications’.
Items 20 to 22 – Amendments to
section 85ZB of the Crimes Act 1914
Section 85ZB of the
Crimes Act 1914 provides that, unless the contrary intention appears, in
Part VIIB of that Act, which contains offence provisions relating to
telecommunications, ‘carrier’ means a general carrier or a mobile
carrier within the meaning of the Telecommunications Act 1991 or a person
who supplies eligible services within the meaning of that Act under a class
licence issued under s. 209 of that Act.
Under the proposed
Telecommunications Act 1996, the distinction between a general carrier
and a mobile carrier will be removed. In addition, under that Act, rather than
operating under a class licensing system, service providers will operate under a
system of standard conditions applying to their operations. Accordingly, item
20 replaces the definition of ‘carrier’ in s. 85ZB of the Crimes
Act 1914 with a definition defining ‘carrier’, unless the
contrary intention appears, to mean a carrier or a carriage service provider
within the meaning of the proposed Telecommunications Act 1996.
‘Carrier’ is defined in cl. 7 of the Telecommunications Bill 1996 to
mean the holder of a carrier licence. ‘Carrier licence’ is defined
to mean a licence granted by the ACA under
cl. 56 of the Telecommunications
Bill. ‘Carriage service provider’ is defined in
cl. 86 of that
Bill.
Items 21 and 22 omit the definitions in s. 85ZB of
‘telecommunications network’ and ‘telecommunications
service’. References to ‘telecommunications network’ in Part
VIIB of the Crimes Act will, unless the contrary intention appears, have the
same meaning as in the proposed Telecommunications Act 1996 (see Crimes
Act, s. 85ZC, as proposed to be amended by item 25). ‘Telecommunications
network’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean a
system, or a series of systems, that carries, or is capable of carrying,
communications by means of guided and/or unguided electromagnetic
energy.
References to ‘telecommunications service(s)’ in ss.
85ZD, 85ZE, 85ZF, 85ZG and 85ZKA of the Crimes Act will be replaced by
references to ‘carriage service(s)’ (see items 26, 27, 28, 29, 32
and 34 of Schedule 1 to the Bill). ‘Carriage service’ is defined in
cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying
communications by means of guided and/or unguided electromagnetic energy. The
proposed definition of ‘carriage service’ has the same effect as the
definition of ‘telecommunications service’ under s. 85ZB of the
Crimes Act as it currently stands.
Item 23 – Amendment to
section 85ZBA of the Crimes Act 1914
Section 85ZBA of the
Crimes Act 1914, contained in Part VIIB of that Act, dealing with
telecommunications offences generally, deems a person to be a carrier for the
purposes of that Part if the person does any thing for or on behalf of a general
carrier or a mobile carrier, in respect of:
(a) the doing by the person
of that thing;
(b) any rental, fee or charge payable for or in relation
to the doing by that person of that thing;
(c) the operation by that
person of a facility in connection with the doing of that thing;
(d) a
facility belonging to that person; or
(e) the operation by that person of
a satellite.
The effect of item 23, and the note to that item, is to
replace the reference, in s. 85ZBA of the Crimes Act and in the heading to that
section, to a general carrier or a mobile carrier with a reference to a carrier.
Under the proposed Telecommunications Act 1996, the distinction between a
general carrier and a mobile carrier will be removed.
Items 24 and 25
– Amendments to section 85ZC of the Crimes Act
1914
Section 85ZC of the Crimes Act 1914 provides that,
unless the contrary intention appears, expressions used in Part VIIB of that
Act, and in the Telecommunications Act 1991, have the same respective
meanings as in that Act. Item 24 replaces the reference to
‘Telecommunications Act 1991’ with a reference to the
proposed Telecommunications Act 1996.
Item 25 provides that for
the purposes of the application of the proposed Telecommunications Act
1996 to Part VIIB of the Crimes Act, a reference in the
Telecommunications Act 1996 to communication does not include a reference
to communication solely by means of radiocommunication. This reflects s. 85ZB
of the Crimes Act which provides that, unless the contrary intention appears, a
reference in Part VIIB of that Act to ‘communication’ does not
include a reference to communication solely by means of
radiocommunication.
Item 26 – Amendment to section 85ZD of the
Crimes Act 1914
Section 85ZD of the Crimes Act 1914
prohibits a person from knowingly or recklessly causing a communication in the
course of telecommunications carriage to be received by a person or
telecommunications service other than the person or service to whom it is
directed.
Item 26 replaces the reference in s. 85ZD to
‘telecommunications service’ with a reference to ‘carriage
service’. This reference will have the same meaning as it has in the
proposed Telecommunications Act 1996 (see Crimes Act, s. 85ZC, as
proposed to be amended by item 25). ‘Carriage service’ is defined
in cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying
communications by means of guided and/or unguided electromagnetic energy. The
proposed definition of ‘carriage service’ has the same effect as the
definition of ‘telecommunications service’ in s. 85ZB of the Crimes
Act as it currently stands.
Item 27 – Amendment to section 85ZE
of the Crimes Act 1914
Section 85ZE of the Crimes Act
1914 prohibits a person from knowingly or recklessly using a
telecommunications service supplied by a carrier to menace or harass another
person or from using a telecommunications service supplied by a carrier in such
as way as would be regarded by reasonable persons as being, in all the
circumstances, offensive.
Item 27 replaces the references in s. 85ZE to
‘telecommunications service’ with references to ‘carriage
service’. The references to ‘carriage service’ will have the
same meaning as that term has in the proposed Telecommunications Act 1996
(see Crimes Act, s. 85ZC, as proposed to be amended by item 25).
‘Carriage service’ is defined in
cl. 7 of the Telecommunications
Bill 1996 to mean a service for carrying communications by means of guided
and/or unguided electromagnetic energy. The proposed definition of
‘carriage service’ has the same effect as the definition of
‘telecommunications service’ under s. 85ZB of the Crimes Act as it
currently stands.
The note to item 27 indicates that as from 1 July 1997
the reference to ‘telecommunications services’ in the heading to s.
85ZE will be replaced by a reference to ‘carriage services’.
Item 28 – Amendment to section 85ZF of the Crimes Act
1914
Section 85ZF of the Crimes Act 1914 prohibits a
person from defrauding a carrier of any rental, fee or charge properly payable
for or in relation to a telecommunications service supplied by the carrier or
from knowingly or recklessly causing a carrier to supply a telecommunications
service to another person without that other person paying the proper rental,
fee or charge.
Item 28 replaces references in s. 85ZF to
‘telecommunications service’ with references to ‘carriage
service’. The references to ‘carriage service’ will have the
same meaning as that term has in the proposed Telecommunications Act 1996
(see Crimes Act, s. 85ZC, as proposed to be amended by item 25).
‘Carriage service’ is defined in cl. 7 of the Telecommunications
Bill 1996 to mean a service for carrying communications by means of guided
and/or unguided electromagnetic energy. The proposed definition of
‘carriage service’ has the same effect as the definition of
‘telecommunications service’ under s. 85ZB of the Crimes Act as it
currently stands.
Items 29 and 30 – Amendments to section 85ZG
of the Crimes Act 1914
Section 85ZG of the Crimes Act
1914 prohibits a person from knowingly or
recklessly:
(a) manipulating, or tampering or interfering with, any
facility operated by a carrier in such a way as to hinder the normal operation
of a telecommunications service provided by a carrier; or
(b) using or
operating any apparatus or device (whether or not it is comprised in, connected
to or used in connection with a telecommunications network) in such a way as to
hinder the normal operation of a telecommunications service supplied by a
carrier.
Items 29 and 30 replace references in ss. 85ZB(1) and (2) to
‘telecommunications service’ with references to ‘carriage
service’. The references to ‘carriage service’ will have the
same meaning as that term has in the proposed Telecommunications Act 1996
(see Crimes Act, s. 85ZC, as proposed to be amended by item 25).
‘Carriage service’ is defined in cl. 7 of the Telecommunications
Bill 1996 to mean a service for carrying communications by means of guided
and/or unguided electromagnetic energy. The proposed definition of
‘carriage service’ has the same effect as the definition of
‘telecommunications service’ under s. 85ZB of the Crimes Act as it
currently stands.
Item 31 – Amendment to section 85ZK of the
Crimes Act 1914
Subsection 85ZK(1) of the Crimes Act
1914 prohibits a person from connecting equipment to a telecommunications
network with the intention of using it in, or in relation to, the commission of
an offence or from using equipment connected to a telecommunications network in,
or in relation to, the commission of such an offence. Subsection 85ZK(2)
provides that s. (1) does not apply in relation to equipment if the connection
by a person of the equipment to a telecommunications network would not be in
contravention of s. 253 of the Telecommunications Act 1991.
A
connection of customer equipment to a telecommunications network will not be in
contravention of s. 253 of the Telecommunications Act 1991 if a permit
issued by AUSTEL for the connection is in force in respect of customer equipment
that is of the same type as the first-mentioned equipment. Item 31 replaces the
reference in
s. 85ZK(2) to s. 253 of the Telecommunications Act 1991
with a reference to proposed
s. 395 of the Telecommunications Act
1996. A connection of customer equipment to a telecommunications network
will not be in contravention of proposed s. 395 if the connection is in
accordance with a connection permit issued by the ACA.
Items 32 to 34
– Amendments to section 85ZKA of the Crimes Act
1914
Subsection 85ZKA(1) of the Crimes Act 1914 prohibits
a person from manufacturing, advertising, displaying or offering for sale,
selling or using, operating or possessing equipment that the person knows is
equipment of a kind that, when connected to a telecommunications network
operated by a carrier, enables 2 persons to send communications to, and receive
communications from, each other, over that network during those
calls.
Item 32 replaces the reference to ‘telecommunications
services’ in s. 85ZKA(1) with a reference to ‘carriage
services’. This reference will have the same meaning as it has in the
proposed Telecommunications Act 1996 (see Crimes Act, s. 85ZC, as
proposed to be amended by item 25). ‘Carriage service’ is defined
in cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying
communications by means of guided and/or unguided electromagnetic energy. The
proposed definition of ‘carriage service’ has the same effect as the
definition of ‘telecommunications service’ in s. 85ZB of the Crimes
Act as it currently stands.
Subsection 85ZKA(2) provides that the
prohibition in s. 85ZKA(1) does not apply to equipment if the connection of the
equipment to a telecommunications network would not be in contravention of s.
253 of the Telecommunications Act 1991 or if the equipment is used, or
intended for use, by a carrier in connection with a telecommunications service
or the operation or maintenance of a telecommunications network.
A
connection of customer equipment to a telecommunications network will not be in
contravention of s. 253 of the Telecommunications Act 1991 if a permit
issued by AUSTEL for the connection is in force in respect of customer equipment
that is of the same type as the first-mentioned equipment. Item 33 replaces the
reference in
s. 85ZKA(2)(a) to s. 253 of the Telecommunications Act
1991 with a reference to proposed s. 395 of the Telecommunications Act
1996. A connection of customer equipment to a telecommunications network
will not be in contravention of proposed
s. 395 if the connection is in
accordance with a connection permit issued by the ACA.
Item 34 replaces
the reference to ‘telecommunications service’ in s. 85ZKA(2)(b) with
a reference to ‘carriage service’.
Items 35 and 36 –
Amendments to subsection 12(3) of the Lands Acquisition Act
1989
Paragraph 12(3)(c) of the Lands Acquisition Act 1989
provides that an authorised person is not to exercise powers under s. 12(1) of
that Act so as to alter the position of any electricity or telecommunications
cable or wire unless the authorised person has given reasonable notice, in
writing, of his or her intention to do so to the authority responsible for the
road, main, pipe, cable or wire.
Item 35 replaces the reference in s.
12(3)(c) to a telecommunications cable or wire with a reference to a line within
the meaning of the proposed Telecommunications Act 1996.
‘Line’ is defined in cl. 7 of the Telecommunications Bill 1996 to
mean a wire, cable, optical fibre, tube, conduit, waveguide or other physical
medium used, or capable of being used, or for use, as a continuous artificial
guide for or in connection with carrying communications by means of guided
electromagnetic energy.
Item 36 replaces the final words ‘or
wire’ in s. 12(3) with the words ‘wire or line’. This
reference to ‘line’ will mean a line within the meaning of the
proposed Telecommunications Act 1996.
Items 37 to 39 –
Amendments to Schedule 2 to the Legislative Instruments Act
1996
Schedule 2 to the proposed Legislative Instruments Act
1996 specifies existing telecommunications and radiocommunications
legislation as legislation providing for legislative instruments likely to have
an effect on business.
As a consequence of the repeal by Schedule 5 to
the Bill of the Radiocommunications (Permit Tax) Act 1983, which is now
defunct, item 37 repeals the reference to this Act in Schedule 2 to the proposed
Legislative Instruments Act.
As a consequence of the repeal by Schedule 5
to the Bill of the Telecommunications Act 1991 and the
Telecommunications (Carrier Licence Fees) Act 1991 and their replacement by
the proposed Telecommunications Act 1996 and the proposed
Telecommunications (Carrier Licence Charges) Act 1996, item 38 makes
appropriate modifications to the references to these Acts in Schedule 2 to the
proposed Legislative Instruments Act.
As a consequence of the repeal by
Schedule 5 to the Bill of the Telecommunications (Public Mobile Licence
Charge) Act 1992, the Telecommunications (Numbering Fees) Act 1991,
and the Telecommunications (Universal Service Levy) Act 1991 and the
replacement of the latter two Acts by the proposed Telecommunications
(Numbering Charges) Act 1996 and the proposed Telecommunications
(Universal Service Levy) Act 1996, item 39 makes appropriate modifications
to the references to these Acts in Schedule 2 to the proposed Legislative
Instruments Act.
Items 40 to 42 – Amendments to section 6 of
the Ombudsman Act 1976
Subsection 6(4D) of the Ombudsman
Act 1976 allows the Ombudsman to transfer a matter to AUSTEL if the
Ombudsman becomes of the opinion that a complaint with respect to the action has
been, or could have been, made by the complainant to AUSTEL under Part 15 of the
Telecommunications Act 1991 and the matter could be more conveniently or
effectively dealt with by AUSTEL.
Subsection 6(4E) of that Act provides
that a complaint transferred under s. (4D) is to be taken to be a complaint made
to AUSTEL under Part 15 of the Telecommunications Act 1991. Part 15
deals with AUSTEL’s investigatory powers in relation to telecommunications
matters.
Item 40 replaces references to ‘AUSTEL’ in ss. 6(4D)
and (4E) of the Ombudsman Act with references to ‘the
ACA’.
Item 41 replaces references in ss. 6(4D) and 6(4E) to Part 15
of the Telecommunications Act 1991 with references to Part 26 of the
proposed Telecommunications Act 1996. Part 26 will deal with the
ACA’s investigatory powers in relation to telecommunications
matters.
Subsection 6(4F) provides that in ss. (4D) and (4E) references
to ‘AUSTEL’ have the same meaning as in the Telecommunications
Act 1991. Item 42 will repeal s. 6(4F) and replace it with a provision to
the effect that in ss. 6(4D) and (4E), ‘ACA’ means the Australian
Communications Authority.
Items 43 to 47 – Amendments to the
Radiocommunications Taxes Collection Act 1983, and transitional
provisions
The Radiocommunications Taxes Collection Act 1983
provides that the holder of a transmitter licence or a receiver licence under
the Radiocommunications Act 1992 is to pay the SMA tax on the issue, the
anniversary of the issue or the holding of the licence. The tax imposed on the
issue of such a licence is payable on the issue of the licence. The tax imposed
on the anniversary of the issue of such a licence is payable on that day. The
tax imposed on the holding of such a licence on the anniversary of the issue of
the licence is payable on that day. The tax imposed on the holding of such a
licence 60 days after the anniversary of the issue of that licence is payable on
the day after the end of that period.
Paragraph (a) of the definition of
‘tax’ in s. 4 of the Radiocommunications Taxes Collection Act
provides that tax includes a tax imposed by the Radiocommunications (Permit
Tax) Act 1983. As a consequence of the repeal of the latter Act by Schedule
5 to the Bill, item 43 repeals this paragraph.
Subsection 7A(1) of the
Radiocommunications Taxes Collection Act allows the SMA to make written
determinations for, and in relation to, the penalty payable by the holder of a
transmitter or receiver licence to the Commonwealth in relation to tax that
remains unpaid after the due day. Section 10A of that Act allows the SMA to
enter into arrangements with persons or other bodies under which those persons
or other bodies may receive payments of tax on the Commonwealth’s
behalf.
As a consequence of the proposed merger of AUSTEL and the SMA
from 1 July 1997 to form the ACA, items 44 and 45 replace the references to
‘SMA’ in s. 7A(1) and
s. 10A of the Radiocommunications Taxes
Collection Act with references to ‘ACA’.
Items 46 and 47
preserve the operation after 1 July 1997 of a determination or arrangement in
force under s. 7A or s. 10A of the Radiocommunications Taxes Collection Act
immediately before that date as if the determination or arrangement had been
made or entered into by the ACA. This will not, however, prevent the variation
or revocation of such a determination or arrangement.
Item 48 –
Amendment to the Schedule to the Sea Installations Act
1987
The Schedule to the Sea Installations Act 1987 lists
the Telecommunications Act 1991 as an Act which is to apply to sea
installations in adjacent areas within the meaning of the Sea Installations Act.
Item 48 replaces this reference with a reference to the proposed
Telecommunications Act 1996.
Items 49 and 50 – Amendments
to section 72 of the Special Broadcasting Service Act
1991
Section 72 of the Special Broadcasting Service Act
1991 provides that for the purpose of providing and operating the
transmitting facilities for the purpose of broadcasting programs of the SBS, a
person acting under the authority of the Minister may:
(a) install and
maintain any electric line that is necessary for conveying electric current to,
or for the operation of, any such facilities; and
(b) arrange for and
obtain from any person the supply of any electric current that is necessary or
advisable for the operation of any such facilities.
In respect of the
installation and maintenance of an electric line by a person under paragraph (a)
above, that person has the same powers, and is subject to the same obligations,
as are conferred or imposed on a general carrier under Division 3 of Part 7 of
the Telecommunications Act 1991 to install or maintain a facility within
the meaning of that Act (which relates to carriers’ powers to enter
land).
Part 24 of the proposed Telecommunications Act 1996 gives
effect to the carriers’ powers and immunities set out in Schedule 3 to
that Act. As a consequence, items 49 and 50 amend s. 72 of the Special
Broadcasting Service Act 1991 to provide, in effect, that in respect of the
installation and maintenance of an electric line by a person under paragraph (a)
above, that person has the same powers, and is subject to the same obligations,
as are conferred or imposed on a carrier under Schedule 3 to the proposed
Telecommunications Act 1996 to install or maintain a facility. The terms
‘carrier’ and ‘facility’ will have the same meaning as
in the proposed Telecommunications Act 1996 and the term
‘maintenance’, in relation to a facility, will have the same meaning
as in proposed cl. 6 of Schedule 3 to that Act.
Item 51 –
Amendment to subsection 5(1) (definition of carrier) of the
Telecommunications (Interception) Act 1979
Subsection 5(1) of
the Telecommunications (Interception) Act 1979 provides that in that Act,
unless the contrary intention appears, ‘carrier’ means a general
carrier or a mobile carrier within the meaning of the Telecommunications Act
1991 or a person who supplies eligible services within the meaning of that
Act under a class licence issued under s. 209 of that Act.
Under the
proposed Telecommunications Act 1996, the distinction between a general
carrier and a mobile licence will be removed. In addition, under that Act,
rather than operating under a class licensing system, service providers will
operate under a system of standard conditions applying to their operations.
Accordingly, item 51 replaces the definition of ‘carrier’ in s. 5(1)
of the Telecommunications (Interception) Act 1979 with a definition
defining ‘carrier’, unless the contrary intention appears, to mean a
carrier or a carriage service provider within the meaning of the proposed
Telecommunications Act 1996. ‘Carrier’ is defined in cl. 7
of the Telecommunications Bill 1996 to mean the holder of a carrier licence.
‘Carrier licence’ is defined to mean a licence granted by the ACA
under cl. 56 of the Telecommunications Bill. ‘Carriage service
provider’ is defined in cl. 7 of that Bill to mean a person who supplies,
or proposes to supply, a carriage service. ‘Carriage service’ is
defined to mean a service for carrying communications by means of guided and/or
unguided electromagnetic energy. The proposed definition of ‘carriage
service’ has the same effect as the definition of
‘telecommunications service under the existing Telecommunications
Act.
Items 52 to 54 – Amendment to subsection 5(1) (definitions
of equipment, facility and line) of the
Telecommunications (Interception) Act 1979
Subsection 5(1) of
the Telecommunications (Interception) Act 1979 provides that in that Act,
unless the contrary intention appears, ‘equipment’ has the same
meaning as in the Telecommunications Act 1991. ‘Equipment’
is defined in the Telecommunications Act 1991 to mean any apparatus or
equipment used, or intended for use, in or in connection with a
telecommunications network, but not to include a line. As the proposed
Telecommunications Act 1996 will not have a definition of
‘equipment’ corresponding to that in the Telecommunications Act
1991, item 52 inserts such a definition in s. 5(1) of the Telecommunications
(Interception) Act.
Subsection 5(1) of the Telecommunications
(Interception) Act provides that in that Act, unless the contrary intention
appears, ‘facility’ has the same meaning as in the
Telecommunications Act 1991. ‘Facility’ is defined in s. 5
of the Telecommunications Act 1991 and is defined in cl. 7 of the
proposed Telecommunications Act 1996 to mean any part of the
infrastructure of a telecommunications network or any line, equipment,
apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other
structure or thing used, or for use, in or in connection with a
telecommunications network. As a consequence, item 53 repeals the definition of
‘facility’ in s. 5(1) of the Telecommunications (Interception) Act
and replaces it by a definition that provides that ‘facility’ has
the same meaning as in the proposed Telecommunications Act
1996.
Subsection 5(1) of the Telecommunications (Interception) Act
provides that in that Act, unless the contrary intention appears,
‘line’ has the same meaning as in the Telecommunications Act
1991. ‘Line’ is defined in s. 5 of the Telecommunications
Act 1991 and is defined in cl. 7 of the proposed Telecommunications Act
1996 to mean a wire, cable, optical fibre, tube, conduit, waveguide or other
physical medium used, or for use, as a continuous artificial guide for or in
connection with carrying communications by means of guided electromagnetic
energy. As a consequence, item 54 repeals the definition of ‘line’
in s. 5(1) of the Telecommunications (Interception) Act and replaces it with a
definition that provides that ‘line’ has the same meaning as in the
proposed Telecommunications Act 1996.
Item 55 – Amendment
to subsection 5(3) of the Telecommunications (Interception) Act
1979
Subsection 5(3) of the Telecommunications (Interception)
Act 1979 provides that for the purposes of that Act, equipment, or a line or
other facility is connected to a telecommunications network if it is, for the
purposes of the Telecommunications Act 1991, connected to that network.
Section 17 of the Telecommunications Act 1991 indicates the circumstances
in which equipment or a line or other facility is connected to a
telecommunications network.
Proposed s. 7 of the Telecommunications
Act 1996 provides that the term ‘connected’ in relation to a
telecommunications network, a facility, customer cabling or customer equipment
includes connection otherwise by means of physical contact, for example, a
connection by means of radiocommunication.
Item 55 repeals s. 5(3) of the
Telecommunications (Interception) Act and replaces it with a provision to the
effect that for the purposes of that Act the question whether equipment, or a
line or other facility, is connected to a telecommunications network is to be
determined in the same manner as that question is determined for the purposes of
the proposed Telecommunications Act 1996.
Items 56 and 57
– Amendments to section 3 of the Telstra Corporation Act
1991
For the purposes of the Telstra Corporation Act 1991,
items 56 and 57 insert definitions of ‘ACA’ and
‘ACCC’.
Subsection 9(4) of that Act, as proposed to be
amended by items 58 and 59, will provide that any Ministerial directions to
Telstra in relation to the exercise of Telstra’s powers will have effect
despite any direction given, or determination made, by the ACA under the
proposed Telecommunications Act 1996.
As a consequence of items 62
to 65, from 1 July 1997 the ACCC will assume responsibility for regulating
Telstra’s charges under Part 6 of the Telstra Corporation
Act.
Items 58 and 59 – Amendments to subsection 9(4) of the
Telstra Corporation Act 1991
Under s. 9 of the Telstra
Corporation Act 1991 the Minister may, after consultation with the Board of
Telstra, give Telstra certain written directions in relation to the exercise of
its powers. Subsection 9(4) of that Act provides that any such directions given
by the Minister have effect despite any direction given, or determination or
order made, by AUSTEL under the Telecommunications Act 1991.
As
the ACA will not be empowered to make orders under the proposed
Telecommunications Act 1996, item 58 replaces the words ‘or order
made, by AUSTEL’ in s. 9(4) with a reference to a determination made by
the ACA. Item 59 replaces the reference to the Telecommunications Act
1991 with a reference to the proposed Telecommunications Act
1996.
Items 60 to 66 – Amendments to sections 19, 22 and 24
of the Telstra Corporation Act 1991
Section 19 of the
Telstra Corporation Act 1991 is an interpretation provision for the
purposes of Part 6 of that Act dealing with the regulation of Telstra’s
charges. Subsection 19(1) defines ‘carrier charge’ for the purposes
of Part 6 to mean ‘a charge for a telecommunications service or facility
supplied by a carrier’. That subsection also defines
‘carrier’ for the purposes of Part 6 to mean Telstra and its
predecessors. Subsection 19(2) provides that subject to Part 6 of the Act an
expression in Part 6 has the same meaning as it has in the Telecommunications
Act 1991.
Item 60 replaces the definition of ‘carrier
charge’ in s. 19(1) with a definition defining ‘carrier
charge’ for the purposes of Part 6 of the Telstra Corporation Act to mean
a charge for a carriage service or a content service supplied by Telstra or a
charge for a facility supplied by Telstra. As a result of s. 19(2) of the
Telstra Corporation Act, as proposed to be amended by item 61, the expression
‘carriage service’ will have the same meaning as it has in the
proposed Telecommunications Act 1996. ‘Carriage service’ is
defined by cl. 7 of the Telecommunications Bill 1996 to mean a service for
carrying communications by means of guided and/or unguided electromagnetic
energy. The proposed definition of ‘carriage service’ has the same
effect as the definition of ‘telecommunications service’ under the
existing Telecommunications Act.
Also as a result of s. 19(2) of the
Telstra Corporation Act, as proposed to be amended by item 61, the expression
‘content service’ will have the same meaning as it has in the
proposed Telecommunications Act 1996. ‘Content service’ is
defined by cl. 15 of the Telecommunications Bill 1996 to mean:
(a) a
broadcasting service within the meaning of the Broadcasting Services Act
1992;
(b) an on-line information service such as a dial-up
information service;
(c) an on-line entertainment service such as a
video-on-demand service or an interactive computer game service;
(d) any
other on-line service such as an education service provided by a State or
Territory government; or
(e) a service of a kind specified in a
Ministerial determination.
Section 22 of the Telstra Corporation Act
deals with the alteration of Telstra’s charges that are subject to price
control arrangements and provides that in certain circumstances the consent of
AUSTEL is required to the proposed alteration. Under s. 24 of that Act, the
Minister may request AUSTEL to report to the Minister as to whether a proposed
alteration to a carrier charge that is subject to notification or disallowance
should be disallowed in the public interest. From 1 July 1997, AUSTEL’s
responsibilities under sections 22 and 24 will be carried out by the ACCC. As a
consequence, items 62, 63, 64 and 65 replace references in ss. 22 and 24 to
‘AUSTEL’ with references to ‘the ACCC’.
As a
result of item 66, anything done by, or in relation to, AUSTEL under s. 22 or 24
of the Telstra Corporation Act before 1 July 1997 will have effect for the
purposes of the Telstra Corporation Act as if it had been done by, or in
relation to, the ACCC.
Schedule 2––Amendment of the
Radiocommunications Act 1992
Part 1––Merger of the SMA and the ACA
This Part provides for minor amendments to the Radcom Act consequential
on the merger of the SMA and the ACA.
Item 1 – Amendment of
paragraph 4(e) of the Radiocommunications Act 1992
Section 4
of the Radcom Act provides an outline of the Act as an aid to the reader.
Paragraph 4(e) refers to Chapter 5 of the Act which deals with the establishment
of the SMA. Item 1 amends paragraph 4(e) to take account of the merger of the
SMA and the ACA under the ACA Bill.
Item 2 – Amendment of
section 5 of the Radiocommunications Act 1992
Item 2 inserts a
definition of the ACA.
Item 3 – Amendment of section 5 of the
Radiocommunications Act 1992 (definition of SMA)
Item 3
deletes the definition of SMA.
Item 4 – Replacement of
subsection 231(2) of the Radiocommunications Act 1992
Section
231 of the Radcom Act provides an outline of Chapter 5. Item 4 deletes
s.
231(2) which refers to the Chapter dealing with the establishment of the SMA.
Those provisions are to be deleted by item 7 of Part 1 of Schedule 2 to this
Bill and Part 5.1 of Chapter 5 is to be confined to matters relating to
delegations. This item reflects those changes.
Item 5 –
Replacement of heading to Part 5.1 of the Radiocommunications Act
1992
This item substitutes a new heading for Part 5.1 to reflect
the changes made to that Part by items 7, 8 and 9 of Part 4 of Schedule 2 of
this Bill.
Item 6 – Replacement of heading to Division 1 of Part
5.1 of the Radiocommunications Act 1992
This item substitutes
a new heading for Division 1 of Part 5.1 to reflect the changes made to
that Part by items 7, 8 and 9 of Part 4 of Schedule 2 of this
Bill.
Item 7 – Repeal of sections 232, 233, 234, 235, 236 and
237 of the Radiocommunications Act 1992
This item repeals
these sections which deal with the establishment of the SMA.
Item 8
– Amendment of subsection 238(1) of the Radiocommunications Act
1992
Subsection 238(1) of the Radcom Act deals with the
delegation of powers under that Act. Section 49 of the ACA Bill provides for
the ACA to delegate its powers and functions. This item makes it clear that the
delegation power under the Radcom Act is in addition to the delegation power
under the ACA Bill.
Item 9 – Amendment of subsections 238(2) and
(3) of the Radiocommunications Act 1992
This is a formal
amendment omitting a reference to the Spectrum Manager and substituting a
reference to the ACA.
Item 10 – Repeal of Division 2 of Part 5.1
of the Radiocommunications Act 1992
Division 2 of Part 5.1
provides for the constitution of the SMA. This item repeals the Division to
take account of the merger of the SMA and the ACA under the ACA
Bill.
Item 11 – General amendments to the Radiocommunications
Act 1992
This item amends various provisions of the Radcom Act by
deleting references to the SMA, and derivatives of such references, and
substituting them with references to the ACA and equivalent derivatives.
Part 2––Consequential amendments
This Part provides for various formal consequential amendments of the
Radcom Act to take account of the repeal of the Telecommunications Act
1991 and the enactment of the proposed Telecommunications Act 1996
and the proposed Australian Communications Authority Act 1996, and the
other amendments of the Radcom Act made by this Bill.
Items 12 to
20
Items 12 to 20 make amendments of this nature.
Item 21
– Transitional––charge determinations
This
item gives transitional operation to charges determinations made by the SMA
under section 293 of the Radcom Act and deems those determinations to be made
under section 52 of the proposed ACA Act.
Part 3 – Public inquiries
This Part repeals section 261 of the Radcom Act, which deals with public
inquiries on radiocommunications matters, and inserts new provisions, based on
Part 25 of the proposed Telecommunications Act 1996 which deals with the
holding of public inquiries by the ACA on telecommunications matters. The new
provisions will allow the ACA to hold hearings for the purposes of a public
inquiry and to require it to prepare a report setting out its findings as a
result of the inquiry. Public inquiries may be conducted either on the
initiative of the ACA or following a request from the Minister.
Item
22 – Amendment of subsection 258(2) of the Radiocommunications Act
1992
Section 258 of the Radcom Act deals with the preparation by
the SMA of a discussion paper relating to an inquiry to be held, making that
paper publicly available. Subsection 258(2) requires the SMA to ensure copies
of the paper are available or purchase. Item 22 repeals subsection (2) and
inserts new subsections (2) and (3) to require the ACA to make copies of such a
discussion paper available for purchase, allowing the ACA to charge a reasonable
price for such copies (subsection (2)); or alternatively, to publish the paper
in an electronic form, and charge for access to that electronic form (subsection
(3)).
Item 23 – Amendment of section 261 of the
Radiocommunications Act 1992
This item repeals section 261 of
the Radcom Act and substitutes it with new sections 261, 261A, 261B, 261C and
261D.
Proposed new section 261 – Hearings
The ACA
will be able to hold hearings for the purposes of a public inquiry (subclause
261(1)). The ACA may, for example, choose to hold hearings to receive public
submissions about a matter to which the inquiry relates or to provide a forum
for public discussion of issues relevant to that matter (subclause
261(2)).
A hearing may be constituted by such ACA members as the ACA
Chairman determines or by ACA delegates ie, ACA members, associate members, ACA
staff members or persons whose services have been made available to the ACA by a
Commonwealth Department, agency or company and to whom relevant ACA functions
and powers have been delegated (subclause 261(3)).
The Chairman is to
preside at all hearings at which he or she is present (subclause 261(4)). If
the Chairman is not present at a hearing and an ACA delegate does not constitute
the ACA for the purposes of the hearing, the member determined by the Chairman
as the presiding member is to preside (subclause 261(5)).
The ACA will be
able to regulate the conduct of proceedings at a hearing in whatever way it
considers appropriate (subclause 261(6)).
Proposed new section 261A
– Hearing to be in public except in exceptional cases
As a
general rule, hearings will be required to be held in public (subclauses 261A(1)
and (2)). If the hearing is to be conducted in public, the ACA will be required
to give reasonable public notice of the conduct of the hearing (subclause
261A(4)).
A hearing, or part of a hearing, will, however, be able to be
conducted in private if the ACA is satisfied that confidential evidence may be
given or other confidential matters may arise during the hearing or that hearing
a matter, or part of a matter, in public would not be conducive to the due
administration of the proposed Telecommunications Act 1996 (subclause
261A(3)).
Proposed new section 261B – Confidential material not
to be published
The ACA will be able to order that confidential
evidence or other confidential material presented to a public hearing or
confidential material in a written submission lodged with the ACA should not be
published or should be disclosed only in restricted circumstances (subclauses
261B(1) and (2)).
The intentional or reckless failure, without reasonable
excuse, to comply with such an order will be an offence punishable on conviction
by a fine not exceeding 50 penalty units (subclauses 261B(3) and (4)) (under
section 4AA of the Crimes Act 1914 a penalty unit is worth
$100).
Proposed new section 261C – Direction about public
hearings
If a hearing, or part of a hearing, takes place in private,
the ACA will be required to give directions as to those who may be present at
the hearing or the part of the hearing and will be able to give directions
restricting the disclosure of evidence or other material presented at the
hearing or part of the hearing (subclauses 261C(1) and (2)).
The
intentional or reckless failure, without reasonable excuse, to comply with a
direction regarding who may be present at a hearing or part of a hearing will be
an offence punishable on conviction by a fine not exceeding 10 penalty units
(subclauses 261C(3) and (4)(a)).
The intentional or reckless failure,
without reasonable excuse, to comply with a direction restricting the disclosure
of evidence or other material will be an offence punishable on conviction by a
fine not exceeding 50 penalty units (subclauses 261C(3) and (4)(b)) (under
section 4AA of the Crimes Act 1914 a penalty unit is worth
$100).
Proposed new section 261D – Reports on
inquiries
The ACA will be required to prepare a report setting out
its findings as a result of any public inquiry it holds (subclause
261D(1)).
If the Minister directed the holding of the inquiry, the ACA
will be required to give a copy of its report to the Minister (subclause
261D(2)). If the inquiry is held on the ACA’s own initiative, the ACA
will be required to publish the report (subclause 261D(3)).
The
ACA’s report will not be required to include:
• confidential
material;
• material the disclosure of which is likely to prejudice
the fair trial of a person; or
• material that is subject to an ACA
order or an ACA direction prohibiting or restricting its publication or
disclosure (subclause 261D(4)).
Part 4––Standards and other technical regulation
This Part provides for amendments to the Radcom Act which primarily take
account of the enactment of Part 21 of the new Telecommunications Act
1996 that sets out the technical regulation regime for telecommunications.
The purpose of the amendments is to align as closely as possible the technical
regulation regime for radiocommunications with the new regime for
telecommunications.
This Part also contains a number of amendments
relating to enabling inspectors to enter premises etc in order to adjust an
emergency position indicating radio beacon (EPIRB) that has spontaneously
activated.
Items 24 and 25 – Amendment of section 5 of the
Radiocommunications Act 1992 – new definitions of apply and
label
Section 5 of the Radcom Act provides for definitions of
terms used in the Act. Items 24 and 25 insert new definitions for the term
‘apply’ and ‘label’.
Item 26 – Amendment
of section 5 of the Radiocommunications Act 1992 (definition of
compliance certificate)
Section 5 of the Radcom Act provides
for definitions of terms used in the Act. Item 26 repeals the definition of
‘compliance certificate’ consequential on the repeal of section 184
(which deals with the issue of such certificates by the SMA) under item
54.
Item 27 – Amendment of section 5 of the
Radiocommunications Act 1992 (definition of recognised testing
authority)
Section 5 of the Radcom Act provides for definitions
of terms used in the Act. Item 27 repeals the definition of ‘recognised
testing authority’ consequential on the insertion, by item 53, of new
section 183 which provides a new definition of that term.
Item 28
– Insertion of new section 9A of the Radiocommunications Act
1992
This item inserts a new section 9A into the Radcom Act to
provide for definitions for the terms ‘label’ and
‘applied’. The meaning of ‘applied’ is wider in scope
than that of ‘affix’ as currently used in section 182 which allows
the SMA to require a person to ‘affix’ a label to a device. The
broader term ‘applied’ takes account of devices that may not,
because of their size or nature, allow a label to be ‘affixed’ to
them.
Item 29 – Amendment of paragraph 101(1)(b) of the
Radiocommunications Act 1992
Section 101 of the Radcom Act
deals with the testing of radiocommunications devices. Item 29 amends paragraph
101(1)(b) to take account of the merger of the SMA with the ACA and role of
recognised testing authorities in testing devices (see new section 183 at item
53).
Item 30 – Amendment of paragraph 163(1)(a) of the
Radiocommunications Act 1992
Section 163 of the Radcom Act
sets out certain consultation requirements in relation to the making of
standards under section 162. Item 30 allows the ACA to consider those
requirements to have been satisfied through the conduct of consultation by the
Standards Association of Australia or another body or association with whom the
ACA has made an arrangement for the preparation of standards (see item
31).
Item 31 – Amendment of subsections 163(2) and (3) of the
Radiocommunications Act 1992
Section 163 of the Radcom Act
sets out the procedures that must and may be followed by the SMA in making
standards under section 162. Item 31 inserts substitute subsections 163(2) and
(3) to provide for certain procedures that the ACA may follow to accord with the
procedures the ACA may follow in making technical standards under section 361 of
the Telecommunications Act 1996. The main element of these new
procedures is the discretion for the ACA to make arrangements for a body or
association to prepare and consult on draft standards.
In keeping with
the theme that regulation that is generated from the industry which is to be
regulated is more likely to benefit from the experience and expertise derived
from industry input, the ACA is to have a discretion to make arrangements with a
range of bodies or associations whereby those bodies or associations are
responsible for the development of a draft standard, publishing it, consulting
publicly on the draft, and reporting on that consultation to the ACA (subclause
(2)). The ACA can then take the final step of making the industry-developed
standards into section 162 standards. Subclauses (3) and (4) require the
approval or determination respectively of a body for the purposes of subclause
(2) to be published in the Gazette.
Item 32 – Amendment
of paragraph 164(b) of the Radiocommunications Act 1992
This
item provides for a formal amendment to paragraph 164(b) of the Radcom Act
consequential on the amendment at item 34.
Item 33 – Amendment
of subsection 165(1) of the Radiocommunications Act 1992
This
item provides for a formal amendment to subsection 165(1) consequential on the
amendment at item 34.
Item 34 – Amendment of subsection 165(2)
of the Radiocommunications Act 1992
Subsection 165(2) of the
Radcom Act provides that standards made under section 162 are taken to be a
statutory rule within the meaning of the Statutory Rules Publication Act
1903. That Act provides for such rules to be published in a statutory rules
series. However, under subsection 165(1) a standard is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act 1901 which
requires a notification of the making of a standard to be published in the
Gazette. For all other disallowable instruments made by the ACA there is
no requirement for the instrument to be published in the statutory rules series.
This item repeals subsection 165(2) to remove that requirement.
Item
35 – Amendment of subsection 167(3) of the Radiocommunications Act
1992 and insertion of new subsections 167(3A) and (3B) of that
Act
Section 167 of the Radcom Act provides for the SMA to issue
permits for non-standard transmitters. Subsection 167(3) sets out certain
matter to which the SMA must have regard when deciding whether to issue a
permit.
Item 35 repeals subsection 167(3) and substitutes new subsections
(3), (3A) and (3B) to provide for matters to which the ACA must and may have
regard when deciding whether to issue a permit - these are based on the matters
set out in section 379 of the proposed Telecommunications Act 1996 in
relation to the ACA deciding whether to issue a connection permit under that
Act.
New subsection 167(3) sets out the matters to which the ACA may have
regard in deciding whether to issue a permit. Those matters relate to whether
the purpose for the proposed permit relates to certain matters such as education
or research (paragraph (a)); testing of devices (paragraph (b)); or the
demonstration of devices (paragraph (c)). It should be noted that the
specification of these matters in this new subsection is not meant to limit the
matters to which the ACA may have regard in deciding whether to issue a permit
(see new subsection (3B)).
New subsection 167(3A) sets out the matters to
which the ACA must have regard in deciding whether to issue a permit. These
matters relate to the health or safety of persons operating, working on, using
services supplied by the means of devices, or otherwise are reasonably likely to
be affected by the operation of devices.
Item 36 – Amendment of
paragraph 169(4)(a) of the Radiocommunications Act
1992
Section 169 of the Radcom Act provides for the duration of
permits for non-standard transmitters. Paragraph 169(4)(a) allows a longer
period than 12 months to be prescribed in the regulations. This is a matter
more appropriately dealt with by the ACA in a disallowable determination.
Accordingly, item 36 repeals paragraph (a) and substitutes a new paragraph (a)
to allow the ACA to determine a period longer than 12 months for permits. (Item
37 inserts a further new subsection to make such a determination
disallowable.)
Item 37 – Insertion of new subsections 169(5),
(6) and (7) of the Radiocommunications Act 1992
This item
inserts new subsections (5), (6) and (7) into section 169 which deals with the
duration of permits for non-standard transmitters.
New subsection (5)
makes a determination by the ACA under new paragraph (4)(a) of a period longer
than 12 months a disallowable instrument.
Paragraph (3)(b) allows a
permit to be issued for an indefinite period. New subsections (6) and (7) allow
the ACA, by written notice to the permit holder, to change a permit with an
indefinite duration to a permit with a finite duration (new subsection (6). The
specified day of expiry must post-date the date of the notice (new subsection
(7)). Such a change in permit duration may be necessary because of changes in
circumstances such as developments in technology that render previously
innocuous transmitters into potentially interference causing
transmitters.
Item 38 – Insertion of new section 169A of the
Radiocommunications Act 1992
This item is consequential on the
insertion of new subsections 169(6) and (7) by item 37 to allow reduction of an
indefinite permit period to a finite one. Item 38 inserts a new section 169A to
provide that if, apart from new section 169A, the operation of the proposed
amendment at item 37 would result in the acquisition of property from a person
otherwise than on just terms in contravention of paragraph 51(xxxi) of the
Constitution, the Commonwealth will be liable to pay reasonable compensation to
the person in respect of the acquisition (subsections (1) and (3)).
If
the Commonwealth and the person cannot agree on the amount of the compensation,
the person will be able to institute proceedings in the Federal Court for the
recovery from the Commonwealth of such reasonable amount of compensation as the
Court determines (subsection (2)).
Item 39 – Amendment of
subparagraph 171(3)(b)(i) of the Radiocommunications Act
1992
This is a formal amendment consequential on the amendment of
section 167 at item 35.
Item 40 – Insertion of new subparagraph
171(3)(b)(ia) of the Radiocommunications Act 1992
This is a
formal amendment consequential on the amendment of section 167 at item
35.
Item 41 – Amendment of subsection 182(1) of the
Radiocommunications Act 1992
Section 182 of the Radcom Act
allows the SMA to require a person to ‘affix’ a label to a device.
The meaning of ‘affix’ is limited in scope.
Item 41 deletes
‘affix’ and replaces it with ‘apply’ to reflect the new
definition of the derivative of that term (‘applied’) inserted in
section 5 of the Act which is wider in scope than that of ‘affix’ as
currently used in section 182. The broader term ‘apply’ takes
account of devices that may not, because of their size or nature, allow a label
to be ‘affixed’ to them.
Item 42 – Amendment of
subsection 182(1B) of the Radiocommunications Act 1992
This is
a formal amendment consequential on the amendment of section 182 at item
41.
Item 43 – Insertion of new subsection 182(2A) of the
Radiocommunications Act 1992
Section 182 of the Radcom Act (as
amended by item 41) allows the ACA to require a person to ‘apply’ a
label to a device.
This item inserts a new subsection (2A) into section
182, based on proposed subsection 392(3) of the Telecommunications Act
1996, which allows the ACA to specify in an instrument how a label is to be
applied to the device. For example, it could specify the size and method of
applying a label to the specified device.
Item 44 – Amendment of
subsection 182(3) of the Radiocommunications Act
1992
Subsection 182(3) of the Radcom Act allows the SMA to
specify that a labelling requirement does not apply to an imported device if it
has affixed to it a label indicating compliance with the requirements of the
laws of another country. This item omits the reference to ‘requirements
of laws of another country’ and substitutes a new reference, based on
proposed subsection 392(4) of the Telecommunications Act 1996 which
provides that an instrument under subsection 182(1) may allow that the labelling
requirement does not apply to equipment or cabling bearing specified
international labels or labels of another country. This will allow for those
situations where Australia is a signatory to an international agreement, or has
a mutual recognition agreement with another country, that provides for the
recognition of labels. For example, it will facilitate visiting end-users to
use an overseas-approved type of amateur transmitter while in Australia without
the need for separate compliance checking.
Item 45 – Amendment
of subsection 182(4) of the Radiocommunications Act
1992
Subsection 182(4) of the Radcom Act allows the SMA to
specify requirements that must be met before applying a label required under
subsection 182(1).
Item 45 repeals subsection (4) and inserts a new
subsection (4), based on proposed subsection 392(5) of the Telecommunications
Act 1996, to allow a notice under subsection 182(1) to specify certain
requirements that must be met before a manufacturer or importer applies a label
to a device. It is through these means that the ACA is to facilitate industry
self-regulation of compliance with the technical regulation regime. Under this
new subclause (4), the ACA will be able to require: that a certificate be
obtained from a certification body stating that the device complies with an
applicable section 162 standard (paragraph (a)); the testing of a device by a
recognised testing authority (see item 53) for compliance with an applicable
section 162 standard (paragraph (b)); that a written statement be obtained from
a competent body (see item 53) certifying that reasonable efforts have been made
to avoid a contravention of an applicable section 162 standard (paragraph (c));
or that the manufacturer or importer make a written declaration that all other
pre-labelling requirements have been met, known in the industry as
‘self-declaration’ paragraph (d)).
Item 46 –
Amendment of subsection 182(4A) of the Radiocommunications Act
1992
This is a formal amendment consequential on the amendment of
section 182 at item 41.
Item 47 – Amendment of subsection
182(4A) of the Radiocommunications Act 1992
This is a formal
amendment consequential on the amendment of paragraphs 182(4A)(a) and (b) at
items 48 and 49.
Items 48 and 49 – Amendment of paragraphs
182(4A)(a) and (b) of the Radiocommunications Act 1992
These
items amend paragraphs 182(4A)(a) and (b) to align the requirement regarding
quality assurance programs with that in new subsection 392(6) of the
Telecommunications Act 1996.
Item 50 – Amendment of
paragraph 182(4A)(b) of the Radiocommunications Act 1992
This
is a formal amendment consequential on the amendment of subsection 182(4A) at
item 51.
Item 51 – Amendment of subsection 182(4A) of the
Radiocommunications Act 1992
This is a formal amendment
consequential on the amendment of subsection 182(4) at item 45.
Item
52 – Repeal of subsection 182(6) of the Radiocommunications Act
1992
Subsection 182(6) of the Radcom Act provides that a notice
under subsection 182(1) is taken to be a statutory rule within the meaning of
the Statutory Rules Publication Act 1903. That Act provides for such
rules to be published in a statutory rules series. However, under subsection
182(5) a notice is a disallowable instrument for the purposes of section 46A of
the Acts Interpretation Act 1901 which requires a notification of the
making of a notice to be published in the Gazette. For all other
disallowable instruments made by the ACA there is no requirement for the
instrument to be published in the statutory rules series. This item repeals
subsection 182(6) to remove that requirement.
Item 53 –
Replacement of section 183 of the Radiocommunications Act
1992
Section 183 of the Radcom Act provides for the determination
of recognised testing authorities. Item 53 repeals section 183 and inserts new
sections 183 and 183A, based on proposed sections 393 and 394 of the
Telecommunications Act 1996, to provide for the determination of
recognised testing authorities (new section 183) and the determination of
certification bodies (new section 183A).
New section 183 allows the ACA
to determine a person or association to be an accreditation body for the
purposes of the section (subclause (1)). The determination is to be done by
gazettal notice. When making such a determination the ACA is expected to take
account of relevant Government policy.
An accreditation body may, by
written instrument, determine a person to be a recognised testing
authority for the purposes of Division 7. Recognised testing authorities
test equipment or cabling for compliance with a standard made under section 162
and issue tests results.
An accreditation body (new section 183A) may
also, by written instrument, determine a person or association to be a
competent body. Competent bodies issue statements to the effect that
reasonable efforts have been made to avoid a contravention of a standard made
under section 162. Such a statement could be useful in circumstances where
because of the size or location of certain devices, or for some other reason, it
is not possible to conduct a proper test of the devices for compliance with a
section 162 standard, and an assessment is made based on other material such as
the design documents, etc.
Item 54 – Repeal of section 184 of
the Radiocommunications Act 1992
This item repeals section 184
of the Radcom Act. Section 184 provides for the SMA to issue compliance
certificates that certify that devices comply with specified section 162
standards. The function is no longer to be performed by the ACA in line with
the amendments, such as that at item 45, which move the technical regulation
regime towards an industry self-regulation model. Such a model accords with the
technical regulation regime for telecommunications provided under Part 21 of the
new Telecommunications Act 1996.
Item 55 – Repeal of
section 185 of the Radiocommunications Act 1992
The repeal of
section 185 of the Radcom Act made by item 55 is consequential on the repeal of
section 184 at item 54.
Item 56 – Amendment of paragraph 186(b)
of the Radiocommunications Act 1992
This is a formal amendment
consequential on the amendment of section 182 at item 41.
Item 57
– Amendment of section 186 of the Radiocommunications Act
1992
This item removes all references to ‘sell or’
from section 186. This amendment has been made because the term
‘supply’ is considered to cover the concept of
selling.
Items 58 to 61 – Amendment of sections 186, 187 and
187A of the Radiocommunications Act 1992
These are formal
amendments consequential on the amendment of section 182 at item
41.
Item 62 – Insertion of new section 188A of the
Radiocommunications Act 1992
This item inserts a new section
188A that prohibits the use of certain symbols, relating to compliance with
radiocommunications or telecommunications standards, other than in accordance
with the provisions of the Radcom Act or the new Telecommunications Act
1996 (subsections (1) and (6)). Breach of this prohibition is an offence
the penalty for which is a maximum fine of 30 penalty units (subsection (2))
(under section 4AA of the Crimes Act 1914 a penalty unit is worth $100).
Subsection (3) is an interpretive provision that makes it clear that the use of
any term in subsection (1) is not meant to limit the meaning of any other term
used in that provision.
However, this clause does not purport to
interfere with any pre-existing trade mark or design rights, or uses that were
in good faith that could have been protected by passing off actions (subsections
(4) and (5)). The ACA may make a written determination that the prohibition
does not apply to a person who uses or applies a protected symbol for a
particular purpose (subsection (7)). The meaning of protected symbol is defined
in subsection (8).
Subsection (9) is important to the operation of the
labelling regime in that it provides that the application of a label, containing
a protected symbol referred to in paragraph (8)(a) or (b), to a device is taken
to indicate that the device complies with all applicable section 162
standards.
Conversely, subsection (10) provides that the application of a
label, containing a protected symbol referred to in paragraph (8)(c), to a
device is taken to indicate that the device does not comply with any applicable
section 162 standard. Applicable section 162 standards are those that are
specified in an instrument under subsection 182(1) requiring the device to be
labelled (subclause (11)).
Determinations made under subsection (7) or
(8) are disallowable instruments (subsection (12)).
Subsections (13) and
(14) provide constitutional support for the operation of subsection
(1).
Subsection (15) defines terms used in new section
188AA.
Items 63 to 65 – Amendment of paragraphs 277(1)(a), (c)
and (e) of the Radiocommunications Act 1992
The amendments at
these items are to enable inspectors to enter premises, vessels, aircraft or
vehicles to adjust an emergency position indicating radio beacon (EPIRB) that
has spontaneously activated. The reason for these amendments are to meet those
situations where emergency service organisations waste valuable time and
resources responding to EPIRBs that have spontaneously activated only to find
that it has been a false alarm. These amendments will allow inspectors to turn
off such EPIRBs.
Item 66 – Amendment of paragraph 279(1)(d)
of the Radiocommunications Act 1992
This is a formal
amendment consequential on the amendment of section 182 at item
41.
Item 67 – Insertion of new paragraph 285(qa) of the
Radiocommunications Act 1992
This is a formal amendment
consequential on the amendment of section 169 at item 37.
Item 68
– Amendment of subsections 300(1) and (4) of the Radiocommunications
Act 1992
These are formal amendments consequential on the
amendment of section 182 at item 41.
Item 69 – Replacement of
existing section 314A of the Radiocommunications Act 1992 with a new
section 314A
Section 314A provides that an SMA determination or
other instrument made under that Act may make provision for, or in relation to,
a matter by applying, adopting or incorporating (with or without modifications)
any matter contained in an instrument or other writing made by any person or
body in Australia or elsewhere, as in force at a particular time or as in force
from time to time.
Item 69 replaces s. 314A with a new provision based on
s. 407 of the Telecommunications Act 1991. An identical provision is
contained in proposed section 573 of the Telecommunications Act
1996.
Notwithstanding anything in the Acts Interpretation Act
1901 (see in particular s. 49A of that Act) or in the proposed
Legislative Instruments Act 1996, regulations or any other instrument
made under the Radcom Act will be able to make provision in relation to a matter
by applying, adopting, or incorporating (with or without modifications)
provisions of any Commonwealth Act or of any regulations or rules under a
Commonwealth Act as in force at a particular time or as in force from time to
time (proposed ss. 314A(1), (5) and (6)).
In addition, notwithstanding
anything in the Acts Interpretation Act or in the proposed Legislative
Instruments Act, regulations or any other instrument made under the Radcom Act
will be able to make provision in relation to a matter by applying, adopting or
incorporating (with or without modifications) contained in any other instrument
or writing whatever as in force or existing at a particular time or from time to
time even if the other instrument or writing does not yet exist when the
instrument under the Radcom Act is made (proposed ss. 314A(2), (5) and (6)).
This power is essential for the ACA’s delegated legislation making,
including the making of standards and the adoption of ITU Radio Regulations
(with or without amendments).
The reference in proposed s. 314A(2) to
‘writing’ will include any mode of representing or reproducing
words, figures, drawings or symbols in a visible form (see s. 25 of the Acts
Interpretation Act 1901).
A reference in proposed s. 314A(2) to any
other instrument or writing is defined widely to include a reference to an
instrument or writing made by any person or body in Australia or elsewhere
(including, for example, the Commonwealth, a State or Territory or one of its
officers or authorities or an overseas entity) whatever its nature and whether
or not it has legal force or effect. Examples will
include:
• regulations or rules under a Commonwealth
Act;
• a State Act, a Territory law or regulations or any other
instrument made under such an Act or law;
• an international
technical standard or performance indicator; or
• a written
agreement such as a contract or an arrangement or an instrument or writing made
unilaterally (proposed s. 314A(3)).
Nothing in proposed s. 314A limits
the generality of anything else in it (proposed
s. 314(4)).
Item
70 – Transitional––procedures for making
standards
This item makes it clear that the amendments of section 163
at items 30 and 31 do not apply to standards made before 1 July 1998 where the
SMA has already commenced the procedures for making the standards. This will
ensure that any work done by the SMA or under an arrangement made under section
163 will not be wasted.
Item 71 –
Transitional––section 186 of the Radiocommunications Act
1992
This item makes it clear that the amendment of section 196
at item 57 is not meant to imply that the use of the term ‘supply’
does not include supply by way of sale.
Schedule 3––Amendments
consequential on the enactment of the Commonwealth Authorities and Companies Act
1996
Item 1 – Repeal of proposed section 10 of the Australian
Communications Authority Act 1996
If the CAC Bill is passed and
commences on or after 1 July 1997, cl. 10 of the ACA Bill will be repealed and
cl. 12 of the ACA Bill will be amended to require the ACA to perform its
functions in a manner consistent with any directions given by the Minister under
subcl. 12(1) in relation to the performance of the ACA’s functions and the
exercise of its powers (items 1 and 3 of Schedule 3 to the Bill). The ACA will
also be required to perform its functions in a manner consistent with proposed
s. 28 of the CAC Act. This provision allows the Minister to notify ACA members,
after consultation with them, of general policies of the Commonwealth Government
that are to apply to the ACA. Proposed s. 28 of the CAC Act is intended to
cover the notification of government policies that are applicable to the
Commonwealth public sector in general, such as policies on equal employment
opportunity.
Item 2 – Repeal of proposed section 11 of the
Australian Communications Authority Act 1996
If the CAC Bill
is passed and commences on or after 1 July 1997, cl. 11 of the ACA Bill will be
repealed and proposed s. 28 of the CAC Act will operate.
Item 3
– Amendment of proposed section 12 of the Australian Communications
Authority Act 1996
If the CAC Bill is passed and commences on or
after 1 July 1997, cl. 12 of the ACA Bill will be amended to provide
that:
(a) the ACA must perform its functions in a manner consistent with
any directions given by the Minister under subcl. 12(1) in relation to the
performance of the ACA’s functions and the exercise of its powers;
and
(b) cl. 12 does not affect the application of proposed s. 28 of the
CAC Act, which allows the Minister to notify ACA members, after consultation
with them, of general policies of the Commonwealth Government that are to apply
to the ACA
Item 4 – Amendment of proposed subsection 15(1) of
the Australian Communications Authority Act 1996
If the CAC
Bill is passed and commences on or after 1 July 1997, a Note will be added to
the end of subcl. 15(1) to the effect that the CAC Act applies to the ACA and
that that Act deals with matters relating to Commonwealth authorities, including
reporting and accountability, banking and investment and conduct of
officers.
Item 5 – Amendment of proposed section 19 of the
Australian Communications Authority Act 1996
If the CAC Bill
is passed and commences on or after 1 July 1997, a new subcl. 19(6) of the ACA
Bill will be added to the effect that, as a general rule, an associate member of
the ACA will be taken not to be a director of the ACA for the purposes of the
CAC Act. This will mean, for example, that an associate member will not need to
be involved in the preparation of annual reports or estimates of receipt and
expenditure (item 5). The exception to this general rule is contained in the
replacement to cl. 30 of the ACA Bill, to take effect on the commencement of the
CAC Act, which will require associate members to disclose material personal
interests (see item 6 below).
Item 6 – Repeal of proposed
section 30 of the Australian Communications Authority Act
1996
If the CAC Bill is passed and commences on or after 1 July
1997, cl. 30 of the ACA Bill will be repealed and replaced by a provision to the
effect that for the purposes of proposed s. 21 of the CAC Act, associate members
of the ACA will be taken to be directors of the ACA.
As a result of the
operation of proposed s. 21 of the CAC Act, members and associate members of the
ACA having a material personal interest in a matter that is being considered, or
is about to be considered, by them will be required to disclose the nature of
the interest at an ACA meeting.
This disclosure will have to be made as
soon as possible after the relevant facts have come to the knowledge of the
member or associate member and will be required to be recorded in the minutes of
the meeting.
Unless the other members and associate members of the ACA or
the Minister otherwise determine, the member or associate member disclosing the
interest will not be able to be present during any deliberation, or to take part
in any decision, on it. Nor can that member or associate member be present
during any deliberation on whether to make the determination or take part in
making the determination.
Item 7 – Repeal of proposed paragraph
37(4)(d) of the Australian Communications Authority Act
1996
If the CAC Bill is passed and commences on or after 1 July
1997, paragraph 37(4)(d) of the ACA Bill will be replaced by a provision to the
effect that the appointment of an ACA member or associate member may be
terminated if the member or associate member fails, without reasonable excuse,
to comply with proposed s. 21 of the CAC Act (in so far as that section relates
to the ACA). That provision requires members and associate members of the ACA
having a material personal interest in a matter that is being considered, or is
about to be considered, by them to disclose the nature of the interest at an ACA
meeting.
Item 8 – Amendment of proposed subsection 37(6) of the
Australian Communications Authority Act 1996
The appointment
of all ACA members or of particular ACA members will be able to be terminated if
the Minister is of the opinion that the ACA members have failed to comply with
the requirement under cl. 48 of the ACA Bill to prepare a corporate plan or the
annual reporting requirements under cl. 50 of that Bill and s. 63H of the
Audit Act 1901 (subcls. 37(5) and (6) of the ACA Bill). If the CAC Bill
is passed and commences on or after 1 July 1997, the reference to s. 63H of the
Audit Act 1901 will be replaced by a reference to proposed s. 9 of the
CAC Act which will require ACA members to prepare an annual report (item
8).
Item 9 – Amendment of proposed section 37 of the
Australian Communications Authority Act 1996
If the CAC Bill
is passed and commences on or after 1 July 1997, a new subcl. 37(7) of the ACA
Bill will added to the effect that if the Minister is of the opinion that ACA
members have failed to comply with:
(a) subsection 13(2) of the CAC Act
(which requires the preparation of interim financial statements in accordance
with the Finance Minister’s Orders) in so far as that subsection relates
to the ACA; or
(b) subsection 15(1) of the CAC Act (which requires the
Minister to be notified of significant events) in so far as that subsection
relates to the ACA; or
(c) paragraph 16(1)(a) or (b) of the CAC Act
(which requires the Minister to be kept informed about the ACA’s
operations and to give the Minister such information in relation to those
operations as he or she requires) in so far as those paragraphs relate to the
ACA;
the Governor-General may terminate the appointment of all members or
particular members.
Item 10 – Repeal of proposed subsection
40(3) of the Australian Communications Authority Act 1996
It
is not appropriate for the ACA to be obliged to prepare financial statements
under
s. 50 of the Audit Act 1901. The ACA will not, therefore, be
taken to be a Department for the purposes of that provision. The ACA will be
obliged to prepare financial statements under Part XI of the Audit Act (subcl.
40(3) of the ACA Bill).
If the CAC Bill is passed and commences on or
after 1 July 1997, subcl. 40(3) will be repealed. The ACA will then be subject
to the reporting obligations under the CAC Act.
Item 11 –
Amendment of proposed subsection 44(2) of the Australian Communications
Authority Act 1996
Subclause 44(1) of the ACA Bill indicates how
the ACA’s money may be applied. This provision operates subject to
subclause 44(2) which allows surplus money of the ACA (ie money that is not
immediately required for the ACA’s purposes) to be invested on deposit
with an approved bank, in Commonwealth securities and in any other manner
approved by the Treasurer.
If the CAC Bill is passed and commences on or
after 1 July 1997, subcl. 44(2) of the ACA Bill will be repealed and replaced by
a provision to the effect that surplus money of the ACA may be invested in
accordance with proposed s. 18 of the CAC Act which will permit the ACA’s
surplus money to be invested:
(a) on deposit with the Reserve Bank, a
bank authorised under the Banking Act 1959 to carry on banking business
in Australia, a bank established by or under a State Act or any other bank that
the Treasurer approves;
(b) in Commonwealth, State or Territory
securities;
(c) in securities guaranteed by the Commonwealth, a State or
a Territory; or
(d) in any other manner approved by the
Treasurer.
Item 12 – Repeal of proposed section 45 of the
Australian Communications Authority Act 1996
The ACA will be
required to prepare estimates, in such form as the Minister requires, of its
receipts and expenditure for each financial year and for any other period
specified by the Minister in a direction (subcl. 45(1) of the ACA
Bill).
The Minister will be able to direct the ACA to submit these
estimates to the Minister not later than the date specified by the Minister in
the direction (subcl. 45(2) of the ACA Bill).
If CAC Bill is passed and
commences on or after 1 July 1997, cl. 45 of the ACA Bill will be repealed.
Proposed s. 14 of the CAC Act will then operate. As a result of that provision,
the members of the ACA will be required to prepare estimates of receipts and
expenditure for each financial year and for any other periods directed by the
Minister. These estimates will have to be in the form required by the Minister
and be given to the Minister within the time that the Minister
requires.
Item 13 – Amendment of proposed subsection 50(1) of
the Australian Communications Authority Act 1996
Clause 50 of
the ACA Bill deals with the matters which the ACA’s annual report prepared
under s. 63H of the Audit Act 1901 must include. If the CAC Bill is
passed and commences on or after 1 July 1997, the reference in subcl. 50(1) to
s. 63H of the Audit Act 1901 will be replaced by a reference to s. 9 of
the CAC Act which will require the ACA members to prepare an annual
report.
Item 14 – Amendment of paragraph 50(2)(a) of the
Australian Communications Authority Act 1996
The ACA’s
annual report will be required to include a copy of any Ministerial notification
given to the ACA during the financial year under cl. 11 of the ACA Bill of
general policies of the Commonwealth Government that are to apply in relation to
the ACA (paragraph 50(2)(a) of the ACA Bill).
If the CAC Bill is passed
and commences on or after 1 July 1997, the reference to cl. 11 of the ACA Bill
will be replaced by a reference to proposed s. 28 of the CAC Act which will deal
with compliance by Commonwealth authorities such as the ACA with general
policies of the Commonwealth Government.
Item 15 – Amendment of
proposed paragraph 55(1)(a) of the Australian Communications Authority Act
1996
The ACA will be required to maintain a public register of
all Commonwealth Government policies of which the Minister has notified the ACA
under cl. 11 of the ACA Bill (paragraph 55(1)(a) of the ACA Bill).
If the
CAC Bill is passed and commences on or after 1 July 1997, the reference to cl.
11 of the ACA Bill will be replaced by a reference to proposed s. 28 of the CAC
Act which will deal with compliance by Commonwealth authorities such as the ACA
with general policies of the Commonwealth Government.
Schedule 4––Amendments
consequential on the enactment of the Financial Management and Accountability
Act 1996
The Financial Management and Accountability Bill 1996 (‘FMA
Bill’) is one of a package of 3 Bills that are intended to replace the
Audit Act 1901. The FMA Bill is concerned with the
regulatory/accounting/accountability framework for dealing with and managing the
money and property of the Commonwealth. Under the FMA Bill, the Universal
Service Reserve will become part of the Reserved Money Fund.
The
amendments to the proposed Telecommunications Act 1996 in Schedule 4 to
the Bill, which are consequential on the enactment of the FMA Bill, will
commence when the FMA Bill commences (cl. 2(4)).
Item 1 – Repeal
of proposed section 202 of the Telecommunications Act
1996
Clause 202 of the proposed Telecommunications Act
1996 establishes an account called the Universal Service Reserve, which is a
trust account for the purposes of s. 62A of the Audit Act 1901 and is to
be administered by the Department of Communications and the Arts.
If the
FMA Bill is passed and commences, item 1 will replace cl. 202 with a provision
establishing a new Universal Service Reserve as a component of the Reserve Money
Fund under the FMA Bill. This new Reserve will also be administered by the
Department.
Item 2 – Amendment of proposed section 203 of the
Telecommunications Act 1996
Clause 203 of the proposed
Telecommunications Act 1996 provides for certain funds, including amounts
equal to amounts of universal service levy, to be paid into the Universal
Service Reserve.
If the FMA Bill is passed and commences, item 2 will
replace cl. 203 with a provision providing for the transfer to the new Universal
Service Reserve from the Consolidated Revenue of similar funds.
Schedule 5 – Repeal of Acts
Schedule 5 to the Bill, when read with cl. 3, provides for the repeal
of:
(a) the Radiocommunications (Permit Tax) Act 1983, which is
now defunct;
(b) the Telecommunications Act 1991, which is to be
replaced by the proposed Telecommunications Act 1996 – this Act
will also deal with matters currently dealt with by the Telecommunications
(Application Fees) Act 1991 which Schedule 5 will also repeal;
and
(c) related taxing legislation, which is to be replaced by new taxing
legislation as part of the package of post-1997 telecommunications
legislation.