Explanatory Memorandum
(Circulated by authority of Senator the Hon. Helen Coonan, Minister for Communications, Information Technology and the Arts)Schedule 4 - Transitional provisions
Schedule 4 to the Bill contains transitional provisions, including provisions dealing with the transfer of assets and liabilities of the ACA and the ABA to the Commonwealth, and provisions for the continuing operation of ACA and ABA instruments after the commencement of the Bill.
Part 1 - Preliminary
Item 1 sets out the definitions of key terms used in Schedule 4 to the Bill. In particular, item 1 provides a definition of 'transition time' for the purposes of Schedule 4 to mean the commencement of clause 6 of the ACMA Bill (which would establish the ACMA). Clause 6 of the ACMA Bill would commence on proclamation or 1 July 2005 if it has not commenced by that date (item 2 of the table in clause 2 of the ACMA Bill).
Item 1 also provides definitions of 'asset' and 'liability' for the purposes of Schedule 4. These terms are referred to in items 2, 3 and 5. The definition of 'assets' is broad in scope and would cover any estate or interest in real or personal property, whether actual, contingent or prospective. It would also cover any right, power, privilege or immunity, whether actual, contingent or prospective. However, 'asset' is defined to exclude any right, power, privilege or immunity conferred by an Act or by regulations or other subordinate legislation made under an Act. Similarly, 'liability' is defined to mean any liability, duty or obligation, whether actual, contingent or prospective but would not include a liability, duty or obligation imposed by an Act or by regulations or other subordinate legislation made under an Act. The exclusions in the definitions of 'asset' and 'liability' are intended to ensure that statutory rights, powers, privileges and immunities, liabilities, duties and obligations of the ACA and ABA would become those of the ACMA as a result of the consequential amendments made by Schedules 1, 2 and 3 and item 10 of Schedule 4 to the Bill, and would not be dealt with by items 2 and 3.
Part 2 - Assets, liabilities and legal proceedings
Item 2 - Vesting of assets of the ABA and the ACA
The effect of item 2 is that on the day on which clause 6 of the ACMA Bill commences, the assets of the ABA and ACA (as are covered by the definition of 'asset' in item 1), will automatically become the Commonwealth's assets without the need for any conveyance, transfer or assignment. The Commonwealth will become the ACA's and the ABA's successor in law in relation to those assets. The assets of the ACA and ABA would vest in the Commonwealth because the ACMA could not hold the assets covered by item 2 (see clause 12 of the ACMA Bill). However, the operation of item 2 would not affect any statutory rights of the ACA and ABA vesting in the ACMA (see the definition of 'asset' in item 1).
Item 3 - Vesting of liabilities of the ABA and ACA
The effect of item 3 is that on the day on which clause 6 of the ACMA Bill commences, the liabilities of the ABA and ACA (as are covered by the definition of 'liability' in item A1), will automatically become the Commonwealth's liabilities without the need for any conveyance, transfer or assignment. The Commonwealth will become the ACA's and the ABA's successor in law in relation to those liabilities.
Item 4 - Certificates relating to vesting of land
Item 4 provides for a simplified procedure in connection with the registration of land vested in the Commonwealth as a consequence of the vesting of the ACA's or the ABA's assets in the Commonwealth under Schedule 4 to the Bill.
This procedure is as follows:
- •
- The Minister signs a certificate identifying the land and stating that a right, title or interest in the land (see the definition of 'land' in item 1) has become vested in the Commonwealth under Schedule 4 to the Bill.
- •
- The certificate is lodged with a relevant State or Territory land registration official (such as the Registrar of Titles).
- •
- 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.
Item 5 - Certificates relating to vesting of assets other than land
Item 5 provides for a simplified procedure in connection with the registration of assets other than land vested in the Commonwealth as a consequence of the vesting of the ACA's or the ABA's assets in the Commonwealth under Schedule 4 to the Bill.
This procedure is as follows:
- •
- The Minister signs a certificate identifying the asset and stating that a right or interest in the asset (see the definition of 'asset' in item 1) has become vested in the Commonwealth under Schedule 4 to the Bill.
- •
- The certificate is lodged with a relevant State or Territory official responsible for the registration of the asset (the 'asset official' as defined in item 1).
- •
- The asset official may deal with the certificate in the same way as, or in a way similar to the way that, other dealings in relevant assets are dealt with and make such entries in a register as are necessary having regard to the effect of Schedule 4 to the Bill.
Item 6 - Substitution of the ACMA or the Commonwealth as a party to pending proceedings
Subitem 6(1) provides for the substitution from the day on which clause 6 of the ACMA Bill commences (see the definition of 'transition time' in item 1) of the ACMA for the ABA and the ACA as a party to proceedings relating to the ABA and the ACA that were pending in any court or tribunal before that day. However, if the proceedings were related to proceedings taken by the ABA or the ACA in the exercise of a right that is vested on the Commonwealth by item 2 (for example, a right in relation to property), or proceedings taken against the ABA or the ACA in respect of a liability that is vested in the Commonwealth by item 3, the Commonwealth will be substituted for the ABA or the ACA from the transition time as a party to the proceedings (subitem 6(2)).
Subitem 6(3) would allow regulations to determine that either subitem 6(1) or (2) applies in relation to a particular proceeding or class of proceeding rather than the other. This would enable a situation to be addressed where it is more appropriate for the Commonwealth to be substituted in proceedings for the ABA or the ACA instead of the ACMA, or vice versa.
Item 7 - Transfer of custody of ABA and ACA records
Item 7 provides that any records or documents that were in the custody of the ABA or the ACA immediately before the day on which clause 6 of the ACMA Bill commences (the 'transition time' - see item 1) are to be transferred to the custody of the ACMA from that day.
Part 3 - References to, and things done by or in relation to, ABA or ACA
Item 8 - References in instruments to ABA or ACA
Subitems 8(1) and (2) provide for the continuing effect, from the day on which clause 6 of the ACMA Bill commences (the 'transition time' - see item 1), of an instrument that is in force before the day on which the ACMA is established and that:
- •
- was made by the ABA or the ACA; or
- •
- was an instrument to which the ABA or the ACA was a party; or
- •
- that was given to, or in favour of, the ABA or the ACA; or
- •
- was an instrument under which any right or liability accrues or may accrue to the ABA or the ACA; or
- •
- in which a reference is made to the ABA or the ACA,
as if a reference in that instrument to the ABA or the ACA (whether in full or in abbreviated form) were a reference to the ACMA. However, if the reference is to the ACA or the ABA as an entity with a particular power or capacity that the ACMA would not have (because of clause 12 of the ACMA Bill), the reference has effect as if it were a reference to the Commonwealth (subitem 8(3)).
Subitem 8(5) provides a non-exhaustive list of instruments. Instruments would include, but not be limited to, regulations, declarations, determinations, directions, licences, applications and standards, but would not include an Act or instruments made under an 'Imposition Act' as defined in item 1). An instrument would also include a contract or other legal document that refers to the ABA or the ACA. Subitem 8(3) would apply to references to the ABA or the ACA in a contract because the ACMA will not have the power to enter into a contract.
Instruments made under Imposition Acts are covered by transitional provisions in the Datacasting Charge (Imposition) Amendment Bill 2004, the Radiocommunications (Receiver Licence Tax) Amendment Bill 2004, the Radiocommunications (Spectrum Licence Tax) Amendment Bill 2004, the Radiocommunications (Transmitter Licence Tax) Amendment Bill 2004, the Radio Licence Fees Amendment Bill 2004, the Telecommunications (Carrier Licence Charges) Amendment Bill 2004, the Telecommunications (Numbering Charges) Amendment Bill 2004 and the Television Licence Fees Amendment Bill 2004.
Subitem 8(4) would allow regulations to determine that either subitem 8(2) or (3) applies in relation to a particular reference or class of references rather than the other subitem. This would enable a situation to be addressed where it is more appropriate for an instrument to have effect as if a reference to the ACA or the ABA in that instrument is a reference to the Commonwealth instead of the ACMA, or vice versa.
Item 9 - Transfer of appropriated money
Item 9 provides for references to the ABA and the ACA in an Appropriation Act (as defined in subitem 9(2)) to be read as references to the ACMA. This would enable money appropriated to the ACA and the ABA in an Appropriation Act to be appropriated to the ACMA. This provision is required because item 8 does not apply to references to the ACA and the ABA in Acts.
Item 10 - Things done by, or in relation to, the ABA or ACA etc.
Item 10 provides for things done by, or in relation to, the ACA or the ABA, to be taken to be have been done by, or in relation to, the ACMA. For example, if immediately before the transition time a person had made an application to the ACA for a carrier licence and the ACA had not yet decided whether to grant a carrier licence, at the transition time, the application will be taken to have been given to the ACMA and the ACMA will be able to decide whether to grant the carrier licence. The time limits for making a decision on an application in section 59 of the Telecom Act would remain unchanged and the ACMA would need to make a decision on the application by the same deadline day by which the ACA would have been required to make a decision before a deemed refusal to grant a licence would arise. Similarly, a carrier licence granted by the ACA, or a broadcasting licence granted by the ABA under the BSA, will be taken to have been granted by the ACMA at the transition time.
However, in the case where the thing done was of a kind that could not be done by or in relation to the ACMA, the thing done will be taken to have been done by the Commonwealth. For example, the entry into an agreement by the ABA or the ACA will be deemed to have been done by the Commonwealth and the property in the contract will be vested in the Commonwealth under item 2.
Subitem 10(4) would allow regulations to determine that either subitem 10(2) or (3) applies in relation to a particular thing done or class of things done rather than the other subitem. The regulations would also be able to clarify how a thing has effect as mentioned in subitem 10(2) or (3).
Item 11 - Continuation of inquiries, investigations and hearings
Item 11 provides for the ACMA to continue an inquiry, investigation or hearing that the ACA or ABA was holding or conducting (and that had not ended or been discontinued) at the time that the ACMA is established. The ACMA is to continue the relevant inquiry, investigation or hearing in accordance with the provisions as amended by the Bill that apply to that inquiry, investigation or hearing. Subitem 11(2) provides that the ACMA is to take whatever action under or for the purposes of the relevant proceedings as is necessary for the continuation of the proceeding. For example, if immediately before the transition time the ACA is holding a hearing under section 491 of the Telecom Act, at the transition time the ACMA would continue the hearing (and anything done for the purposes of the hearing before the transition would be taken to have been done for the purposes of the hearing as continued by the ACMA - subitem 11(3)) and would need to take whatever action is required to enable the hearing to continue (this would include the Chair of the ACMA determining how the ACMA is to be constituted for the purposes of the hearing). However, subitem 11(2) would not affect any power or discretion of the ACMA not to continue with the hearing.
Subitem 11(2) is a transitional provision similar in nature to item 10, except that it deals specifically with particular types of things done by or in relation to the ABA or ACA. Subitem 11(4) therefore provides that item 11 has effect despite item 10 but does not otherwise limit that item.
Item 12 - Continued effect of certain instruments made under the repealed provisions
Item 12 provides for the continued effect of instruments made or given under a provision in the ACA Act (which will be repealed by item 5 in Schedule 1 to the Bill) as though that instrument had been made or given under the provision in the ACMA Bill that will be equivalent to the repealed provision. For example, a determination made by the ACA under subsection 53(1) would have effect as though it had been made by the ACMA under subclause 60(1) of the ACMA Bill. Item 12 also provides for the continued effect of a determination that was made by the ABA under clause 61 of Schedule 4 to the BSA (which will be repealed by item 54 in Schedule 1 to the Bill) as if it had been made by the ACMA under subclause 60(1) of the ACMA Bill.
As current subsection 31(1) of the Radcoms Act will be repealed by item 75 in Schedule 1 to the Bill, subitem 12(3) provides that a designation made under that subsection will have effect from the transition time as though it had been made under new proposed subsection 31(1). Similarly, an agreement in force under subsection 31(2) of the Radcoms Act, which will be repealed by item 75 and replaced with a new proposed subsection that allows the ACMA to make a determination, would have effect as if it were a determination made under proposed subsection 31(2) (subitem 12(4)).
As current subsection 128C(2) of the Radcoms Act would be repealed by item 92 in Schedule 1 to the Bill, subitem 12(5) would provide for the continued effect of a suspension in force under that subsection to have effect from the transition time as if it were a suspension under new proposed subsection 128C(1).
Item 13 - Saving advisory committees etc.
Item 13 provides that any advisory committee established by the ACA under s. 51 of the ACA Act that is in existence immediately before the date on which the ACMA is established will continue in existence from that time as if it were established under the ACMA Bill. (Clause 58 of the ACMA Bill would allow the ACMA 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 the date on which the ACMA is established will be taken to have been made or given by the ACMA on that date under clause 58 of the ACMA Bill.
Part 4 - Reporting obligations
Item 14 - First annual report for ACMA
The effect of item 14 is that if the ACMA is established in April, May or June of a financial year (referred to as the 'first year' in item 14), the ACMA would not need to prepare and provide to the Minister as soon as practicable after 30 June of that financial year, an annual report for the first year under clause 57 of the ACMA Bill. However, when the ACMA prepares its first annual report, the report would need to cover the period commencing on the ACMA's establishment and ending at the end of the next financial year. For example, if the ACMA were established on 1 April 2005 (as a result of clauses 3 to 68 of the ACMA Bill having been proclaimed to commence on that day), ACMA's first annual report would need to relate to the period 1 April 2005 to 30 June 2006.
However, if the ACMA were established on 1 March 2005, it would need to prepare a report on its operations for the period commencing on 1 March 2005 and ending on 30 June 2005 as soon as practicable after 30 June 2005, as required by clause 57 of the ACMA Bill.
If the ACMA is established on 1 July 2005, item 14 will have no application and the ACMA's first annual report would relate to the period 1 July 2005 to 30 June 2006.
Item 15 - Final annual report for the ABA and the ACA
The members of the ABA and the ACA are currently required under section 9 of the CAC Act to prepare an annual report in relation to the operations of the ABA or the ACA. In the case of the ACA, the annual report must also deal with the matters specified in section 50 of the ACA Act.
If the ACMA is established on 1 July 2005, the ACMA would need to prepare an annual report for the ACA and the ABA for the 2004-2005 financial year. If the ACMA is established in the financial year that started on 1 July 2004, it would need to prepare an annual report for the ACA and the ABA for the period starting on 1 July 2004 and ending immediately before the transition time (the day on which the ACMA is established).
Part 5 - Miscellaneous
Item 16 - Protecting ACA's names and symbols
Item 16 provides for the protection given to the ACA name, acronym and symbol under section 55 of the ACA Act to continue to apply for 12 months after the date on which the ACMA is established or such longer period (if any) as is specified in the regulations.
The effect of the continued operation of section 55 of the ACA Act is as follows:
- •
- Unless the ACMA agrees in writing, a person will not be permitted to use the name 'Australian Communications Authority' or the acronym 'ACA' 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 the ACA (ACA Act, subsections 55(1), (2A) and (7)).
- •
- An individual who intentionally 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 (ACA Act, subsection 55(2) and subsection 4B(3) of the Crimes Act 1914 ).
- •
- Nothing in subsection 55(1) will limit anything else in that subsection (s. 55(3)).
- •
- The prohibition in s. 55(1) will not affect rights in relation to the ACA's name, acronym or symbol conferred by a trade mark or design registered immediately before 16 August 1996 (s. 55(4)).
- •
- Nothing in s. 55 will affect a person's legal rights to use the ACA name, acronym or symbol in a particular manner if immediately before 16 August 1996 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. 55(5)).
- •
- The prohibition in s. 55 will not apply to a person who uses or applies the ACA name, acronym or symbol for the purpose of labelling customer equipment in accordance with s. 407 of the Telecom Act or s. 182 of the Radcom Act (s. 55(6)).
Item 17 - Exemption from stamp duty and other State or Territory taxes
Item 17 provides that stamp duty and other State or Territory taxes would not be payable in respect of the vesting of an asset or liability of the ACA or the ABA in the Commonwealth under Schedule 4 to the Bill, or the operation of that Schedule in any other respect (an 'exempt matter') or anything connected with such a matter.
The Minister would be able to certify in writing that a specified matter is an exempt matter or that a specified thing was connected with a specified exempt matter. In all courts, and for all purposes (other than for the purposes of criminal proceedings), the Minister's certificate would be prima facie evidence of the matters stated in it.
Item 18 - Constitutional safety net
Item 18 provides that if the operation of Schedule 4 to 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 would be liable to pay reasonable compensation to the person in respect of the acquisition.
If the Commonwealth and the person cannot agree on the amount of the compensation, the person would be able to institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines.
Item 19 - Certificates taken to be authentic
Items 4 and 5 refer to certificates that may be signed by the Minister and given to a land registration or an assets official. Item 17 refers to a certificate that may be made by the Minister to the effect that a specified matter is an exempt matter for the purposes of that item. Item 19 provides that a document that appears to be a certificate issued under Schedule 4 is taken to be such and taken to have been properly given unless the contrary is established. This is to ensure that effect is given to documents that appear to be certificates given by the Minister unless it is shown that a document is not a certificate or was not properly given by the Minister.
Item 20 - Delegation by Minister
Item 20 provides for the Minister to be able to delegate, in writing, all or any of his or her powers under Schedule 4 to the Bill to the Secretary, or an SES officer, in the Department (currently the Department of Communications, Information Technology and the Arts - see Acts Interpretation Act 1901, s. 19A). The delegate will exercise these powers subject to the Minister's directions.
Item 21 provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In particular, to deal with unforeseen circumstances, regulations will be able to be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by the Bill or the enactment of the Bill or the ACMA Bill.