House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Communications, Information Technology and the Arts, Senator the Hon. Richard Alston)

Outline, financial impact statement and abbreviations

Outline

The Communications Legislation Amendment Bill (No. 1) 2002 (the Bill) makes a series of amendments to:

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the Australian Communications Authority Act 1997;

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the Freedom of Information Act 1982;

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the Radiocommunications Act 1992;

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the Telecommunications Act 1997; and

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the Telecommunications (Consumer Protection and Service Standards) Act 1999.

Australian Communications Authority Act 1997 Amendment

Schedule 1 to the Bill adds a new section 54A of the Australian Communications Authority Act 1997 (ACA Act) to allow a definitions determination made under subsection 54(1) of the ACA Act to apply, adopt or incorporate such materials, and in such circumstances, as are permitted under both section 314A of the Radiocommunications Act 1992 and section 589 of the Telecommunications Act 1997.

Freedom of Information Act 1982 Amendments

Schedule 2 to the Bill contains provisions exempting from the application of the Freedom of Information Act 1982 (FOI Act) certain documents related to the administration of Schedule 5 to the Broadcasting Services Act 1992 (which deals with the regulation of on-line services). The amendments will have the effect of exempting the Australian Broadcasting Authority (ABA) from the operation of the FOI Act in relation to specific documents that are likely to contain either offensive content which is the subject of a complaint to the ABA or information which would enable, or would be likely to enable, a person to gain access to that offensive content on the Internet. If the ABA were obliged to disclose such information under the FOI Act, its statutory function of regulating on-line content would be largely frustrated. This is because, once documents are released under the FOI Act, their subsequent use and dissemination cannot be controlled. The amendments will also exempt the Classification Board, the Classification Review Board and the Office of Film and Literature Classification from the operation of the FOI Act in relation to the documents described above because these agencies may also hold such documents which could be the subject of an FOI request.

Radiocommunications Act 1992 Amendments

Schedule 3 to the Bill amends the Radiocommunications Act 1992 (the Radcom Act):

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to provide that an object of the Radcom Act is to make adequate provision of the radiofrequency spectrum for use by agencies involved in the defence or national security of Australia, law enforcement or the provision of emergency services and for use by other public or community services;

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to extend the exemption from compliance with some normal licensing requirements to include a person performing a function or duty in relation to a wide range of bodies involved in the investigation of crime or corruption and to allow the Australian Communications Authority (ACA) to make such exemptions by written determination (being a disallowable instrument);

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to allow the ACA to issue standard-term apparatus licences that are inconsistent with the spectrum plan or any relevant frequency band plan for radiocommunications devices that are used for investigations or operations by a range of specified bodies involved in the investigation of crime or corruption;

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to allow the ACA to issue apparatus licences, that operate within a part of the spectrum that is allocated to spectrum licences, to a specified body involved in the investigation of crime or corruption without having to consider whether special circumstances exist; and

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to allow the ACA to issue apparatus licences, during or after the end of the re-allocation period, to specified bodies involved in the investigation of crime or corruption that authorise the operation of radiocommunications devices at frequencies that are within a part or parts of the spectrum covered by a spectrum re-allocation declaration.

Telecommunications Act 1997 Amendments

Schedule 4 to the Bill amends the Telecommunications Act 1997 (the Telecommunications Act) to abolish the specially-constituted Australian Communications Authority (SC-ACA). The SC-ACA's primary role is to consider carriers' applications for telecommunications facilities installation permits under Schedule 3 to the Telecommunications Act. If awarded, facilities installation permits give carriers immunity from State and Territory laws for the purpose of installing telecommunications facilities of national significance.

In the SC-ACA's four years of operation there have been no applications for facility installation permits under clause 21 of Schedule 3. Instead, carriers have utilised other avenues, such as negotiations and court proceedings, to progress potentially contentious installations. It is therefore proposed to abolish the SC-ACA.

Telecommunications (Consumer Protection and Service Standards) Act 1997 Amendments

Schedule 5 to the Bill amends the Telecommunications (Consumer Protection and Service Standards) Act 1997 (CPPS Act):

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to improve the funding arrangements for the National Relay Service levy (NRS levy) by aligning the time a person's liability to pay a NRS levy contribution arises to when the liability is assessed and payable;

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to provide for the same flexibility for calculating a person's NRS levy liability as is found in section 20R of the CPSS Act, in relation to the Universal Service Obligation levy, by allowing the Minister to modify the formula in subsection 100(2) by written determination;

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to allow the ACA to vary an assessment of a person's NRS levy contribution, by making such alterations and additions as it thinks necessary, even if a levy has already been paid by a person;

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to clarify that a variation or revocation of a section 115 standard (relating to performance standards to be complied with by telecommunications carriage service providers) under subsection 125(3) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901;

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to explicitly state in section 128 of the CPSS Act that the Telecommunications Industry Ombudsman (TIO) dispute resolution services are free to end-users; and

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to clarify that the TIO may investigate complaints in relation to tariffs, charges or fees for services other than the supply of telecommunications carriage services.

Financial impact statement

The Bill is not expected to have any impact on Commonwealth expenditure or revenue.

Abbreviations

The following abbreviations are used in this explanatory memorandum: