Explanatory Memorandum
(Circulated by authority of Senator the Hon. Helen Coonan, Minister for Communications, Information Technology and the Arts)Schedule 3 - Other amendments
Schedule 3 to the Bill would amend references to the ABA and the ACA in provisions of Bills that will be before the Parliament at or close to the time of the introduction of this Bill, in the event that those provisions are passed by the Parliament, as well as amending references to the ABA in certain provisions of the Criminal Code that are not yet in force. Schedule 3 would replace references to the Australian Broadcasting Authority in amendments to the Criminal Code Act 1995 made by the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004, which will commence on 1 March 2005, with references to the Australian Communications and Media Authority. Similar amendments would also be made to references to the Australian Communications Authority in proposed amendments to the Ombudsman Act 1976 contained in the Postal Industry Ombudsman Bill 2004. In addition, Schedule 3 would amend current references to the Australian Communications Authority and the Australian Broadcasting Authority in the Ombudsman Act which would not be amended by the Postal Industry Ombudsman Bill.
Item 1 - Paragraph 474.21(4)(a) of the Criminal Code
Item 2 - Paragraph 474.24(4)(a) of the Criminal Code
Paragraph 474.21(4)(a) of the Criminal Code, in the Criminal Code Act 1995 (as proposed to be amended by the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004 with effect from 1 March 2005), relating to defences in respect of child pornography material, includes a reference to the ABA. Paragraph 474.24(4)(a) of the Criminal Code, in the Criminal Code Act 1995 (as proposed to be amended by the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004 with effect from 1 March 2005), relating to defences in respect of child abuse material, also includes a reference to the ABA. Items 1 and 2 would replace the references to the ABA in these paragraphs to references to the ACMA. The effect of item 4 of the table in clause 2 of the Bill would be that items 1 and 2 would commence on the later of the time that the ACMA is established by the ACMA Bill or the day on which item 1 of Schedule 1 to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004 commences ie. 1 March 2005.
Item 3 - Subsection 3(1) (definition of ACA)
Subsection 3(1) of the Ombudsman Act (as proposed to be amended by the Postal Industry Ombudsman Bill 2004) would define 'ACA' to mean the Australian Communications Authority. Items 3 and 4 of Schedule 3 would repeal the proposed definition of the ACA in subsection 3(1), and would substitute a new definition of 'ACMA' to mean the Australian Communications and Media Authority. The effect of item 5 of the table in clause 2 of the Bill would be that items 3 and 4 would commence on the later of the establishment of the ACMA or the commencement of item 2 of Schedule 1 to the Postal Industry Ombudsman Bill. However, in the event that the Postal Industry Ombudsman Bill does not commence, items 3 and 4 would not commence at all.
Section 6 of the Ombudsman Act relates to the Ombudsman's discretion not to investigate certain complaints. Subsections 6(4D) and (4E) include references to the ACA. Items 5 and 6 would replace the references to 'ACA' in subsections 6(4D) and (4E) with references to 'ACMA'. Items 5 and 6 would commence at the same time that the ACMA is established (see item 6 of the table in clause 2 of the Bill).
Item 7 repeals subsection 6(4F) of the Act (which defines the ACA) and replaces it with a new subsection which provides a definition of 'ACMA'. Item 7 of the table in clause 2 provides that item 7 would commence at the same time that the ACMA is established. However, as item 10 of Schedule 1 to the Postal Industry Ombudsman Bill would repeal subsection 6(4F) if that item commences, if the Postal Industry Ombudsman Bill commences before the ACMA is established, item 7 would not commence at all.
Subsection 6(6) of the Ombudsman Act includes references to the Australian Broadcasting Authority. Item 8 would omit references in subsection 6(6) to 'Australian Broadcasting Authority' and substitute references to 'Australian Communications and Media Authority'. Item 8 would commence at the same time that the ACMA is established (item 8 of the table in clause 2 of the Bill).
Section 19ZE of the Ombudsman Act (as proposed to be amended by item 11 of Schedule 1 to the Postal Industry Ombudsman Bill 2004) relates to fees that may be charged by the Postal Industry Ombudsman. Proposed subsections 19ZE(7) and (9) would include references to 'ACA'. Items 9 and 11 would omit references to the 'ACA' in those proposed subsections and would replace them with references to the 'ACMA'. Proposed subsection 19ZE(8) would require the ACA to bank any amount that it receives under proposed subsection 19ZE(7) in an official account within the meaning of the FMA Act. As the members and staff of the ACMA, as well as any person whose services have been made available to the ACMA under clause 55, would constitute a prescribed agency for the purposes of the FMA Act, subsection 19ZE(8) would be unnecessary. Item 10 would therefore repeal subsection 19ZE(8).
The effect of item 9 of the table in clause 2 would be that items 9, 10 and 11 would commence on the later of the time that the ACMA is established or the commencement of item 11 to Schedule 1 to the Postal Industry Ombudsman Bill. However, if item 11 of Schedule 1 to the Postal Industry Ombudsman Bill does not commence, items 9, 10 and 11 would not commence at all.