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2004
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
AUSTRALIAN
COMMUNICATIONS AND MEDIA AUTHORITY BILL
2004
EXPLANATORY
MEMORANDUM
(Circulated
by authority of Senator the Hon. Helen Coonan, Minister for Communications,
Information Technology and the Arts)
AUSTRALIAN
COMMUNICATIONS AND MEDIA AUTHORITY BILL 2004
OUTLINE
The Australian Communications and Media Authority Bill 2004 (referred to
in the explanatory memorandum as ‘the Bill’ or ‘the ACMA
Bill’) provides for the merger of the Australian Broadcasting Authority
(ABA) and the Australian Communications Authority (ACA) to form a single
communications regulator, the Australian Communications and Media Authority (to
be known as the ACMA).
The Bill makes only minimal changes to the
existing regulatory frameworks that apply to the telecommunications and
broadcasting sectors in order to provide for the merger of the ACA and the
ABA.
The Bill provides for the ACMA to be established on proclamation, or
1 July 2005 if no proclamation has been made by that day.
The formation
of the ACMA is a response to convergence within the communications industry.
Digital technologies are reshaping traditional telecommunications and
broadcasting industry sectors by allowing new types of devices and services,
which in turn create new market opportunities. Businesses are being forced to
respond by restructuring the ways they do business, their offerings to their
customers, and their relationships with other businesses. Consumers have
significantly different expectations about the types of services available,
their costs and availability than they did a decade ago.
New regulatory
structures are required to deal with these changes – it is becoming
increasingly difficult for two separate regulators, one of which is primarily
focused on infrastructure and carriage issues, with the other focused chiefly on
content issues, to provide a holistic response to convergence. A particular
case in point is the emergence of third generation (3G) mobile phones which can
deliver audiovisual services in addition to traditional voice and data
applications. The regulation of these services crosses the boundaries between
the current responsibilities of the ABA and the ACA, which as a result are
required to establish inefficient consultative structures to address
consequential regulatory issues that could be better and more easily addressed
by a single administrative structure.
The Bill sets out the functions
and powers of the ACMA. Consistent with the idea that the merger of the ACA and
the ABA will result in minimal changes to the telecommunications and
broadcasting regulatory frameworks, the ACMA’s primary functions will be
the telecommunications and spectrum management functions currently specified in
sections 6 and 7 of the Australian Communications Authority Act 1997 (ACA
Act) and the broadcasting, content and datacasting functions currently specified
in section 158 of the Broadcasting Services Act 1992 (BSA). The ACMA
will also have the additional functions specified in section 8 of the ACA
Act.
The Minister will have the power to give the ACMA written directions
in relation to the performance of its functions and the exercise of its powers.
However, the Minister will only be able give the ACMA a direction in relation to
ACMA’s broadcasting, content or datacasting functions, or its powers
relating to those functions, that is general in nature except as otherwise
provided in any other Act (for example, the Minister’s ability to give
specific directions under subsections 19(3) and 36(2) of the BSA will not be
affected by this limitation). The power of the Minister to direct the ACMA will
be equivalent to the current powers of the Minister to give directions in
relation to the telecommunications, spectrum management and additional functions
performed by the ACA (see section 12 of the ACA Act) and in relation to the
functions of the ABA (see section 162 of the BSA).
The ACMA will be a
body corporate consisting of a Chair, a Deputy Chair and between one and seven
other members. The Minister may also appoint such associate members as he or
she thinks fit for special purposes including inquiries, investigations and
hearings. The ACMA’s staff will comprise persons appointed or employed
under the Public Service Act 1999 and persons on loan from other
Commonwealth Departments, authorities, Commonwealth controlled companies or
bodies established under a law of the Commonwealth for a public purpose.
In the interests of sound financial accountability and in recognition
that the ACMA will be a publicly funded body which collects taxes on behalf of
the Commonwealth, the members and staff of the ACMA will be a prescribed agency
for the purposes of the Financial Management and Accountability Act 1997
(FMA Act) and the Chair of the ACMA will be Chief Executive of the agency for
the purposes of the FMA Act. The persons constituting the prescribed agency of
ACMA will be able to enter into contracts on behalf of the Commonwealth in
accordance with arrangements determined by the Chief Executive in accordance
with the FMA Act and the Financial Management and Accountability Regulations
1997. For example, the Chair of the ACMA, and members and staff acting
under delegations from the Chair, will be able to engage consultants to assist
the ACMA in the performance of its functions.
A member or associate
member is to be appointed for a period of up to five years and is to be paid
such remuneration as is determined by the Remuneration Tribunal. A person will
not be able to be appointed, or re-appointed, as a member or associate member of
the ACMA if the sum of the person’s appointments as a member or an
associate member of the ACMA exceeds 10 years. Previous appointments as a
member or associate member of the ACA or the ABA will count towards this period.
Previous appointments to the Australian Telecommunications Authority (AUSTEL),
the Spectrum Management Agency (SMA) and the Australian Broadcasting Tribunal
will not count towards this period.
The ACMA Bill includes standard
provisions relating to meetings. The ACMA will be able to hold such meetings as
are necessary for the efficient performance of its functions.
The ACMA
Bill allows the ACMA to establish one or more Divisions comprised of at least 3
members and determine the matters that a Division may deal with. The
establishment of Divisions will allow the ACMA to require groups of members to
undertake a specific function or functions – an example would be where
ACMA wishes to have members and associate members with a particular interest or
experience in a function, to undertake that function. A Division could also be
set up to undertake a particular inquiry or investigation. The number of
Divisions, and their purpose, will be a matter for the ACMA to determine, and
the ACMA will have the power to dissolve a Division or change the matters it
deals with at any time.
If the Chair of the ACMA is not appointed to a
Division, the Chair will be able to elect to be a member of the Division. The
ACMA will be able to delegate any or all of its functions and powers to a
Division. A Division will also be able to sub-delegate functions and powers
delegated to it by the ACMA. However, the ACMA will not be able to delegate,
and a Division will not be able to sub-delegate, to a member, associate member,
member of the ACMA staff or a person whose services have been made available to
the ACMA, a power to make, vary or revoke an instrument that will be a
legislative instrument for the purposes of the Legislative Instruments Act
2003 or certain specified powers under the BSA. This will be consistent
with the current limitations in the ACA Act and the BSA on the power of the ACA
and the ABA to delegate certain powers.
The ACMA will also be able to
establish advisory committees to assist it in performing any of its functions.
The continued existence of the Consumer Consultative Forum, which was
established by the ACA under section 52 of the ACA Act, is provided for by the
Bill.
Finally, the Bill provides for the protection of the ACMA name,
acronym and any official symbol of the ACMA.
FINANCIAL IMPACT STATEMENT
The ACMA will be financed by Parliamentary appropriation. In this
regard, the FMA Act will allow the Minister for Finance and Administration or
his or her delegate to issue drawing rights as to the amounts in which, and the
times at which, money may be drawn by the ACMA. Resource needs for the ACMA for
2005-06 and 2006-07 are to be the combined total from the forward estimates for
the ABA and ACA. Forward estimates for later years are to be settled through a
review in the context of the 2007-08 Budget.
The ACMA’s
expenditure incurred in administering telecommunications-specific regulation is
to be recovered from carriers via annual carrier licence fees. The ACMA’s
expenditure incurred in administering radiocommunications-specific regulation is
to be recovered from the holders of radiocommunications receiver and transmitter
licences and radiocommunications spectrum licences. The ACMA will have the
ability to cost recover expenditure incurred in relation to other specified
functions. The establishment of the ACMA is expected to be revenue neutral to
both industry and the Australian Government.
ABBREVIATIONS
The following abbreviations are used in this explanatory
memorandum:
ABA: Australian Broadcasting
Authority
ACA: Australian Communications Authority
ACA
Act: Australian Communications Authority Act
1997
ACMA: Australian Communications and Media
Authority
ACCC: Australian Competition and Consumer
Commission
AIA: Acts Interpretation Act
1901
Bill: Australian Communications and Media Authority Bill
2004
BSA: Broadcasting Services Act 1992
CAC
Act: Commonwealth Authorities and Companies Act 1997
FMA
Act: Financial Management and Accountability Act 1997
FMA
Regulations: Financial Management and Accountability Regulations
1997
LIA: Legislative Instruments Act
2003
Minister: Minister for Communications, Information Technology
and the Arts
Radcom Act: Radiocommunications Act
1992
Telecom Act: Telecommunications Act 1997
NOTES ON CLAUSES
Part 1–– Preliminary
Clause 1 – Short title
Clause 1 provides for the
citation of the Australian Communications and Media Authority Act
2004.
Clause 2 – Commencement
Clause 2 provides
that each provision of the Bill (specified in column 1 of the table in clause 2)
will commence, or will be taken to have commenced, on the day or at the time
specified in column 2 of the table in clause 2.
Item 1 of the table in
clause 2 provides that clauses 1 and 2 and anything in the Bill that is not
covered in the table will commence on the day on which the Bill receives the
Royal Assent.
Item 2 of the table provides that clauses 3 to 68 of the
Bill will commence on proclamation, or 1 July 2005 if no proclamation has been
made by that day. Delayed commencement of the Bill will enable appointments to
the Board of the ACMA to be arranged and any other transitional issues to be
finalised prior to the establishment of the ACMA. For ease of administration
and transition between financial years, the default date on which the ACMA will
be established is 1 July 2005. However, item 2 also provides the option of
the ACMA being established earlier by Proclamation if all the transitional
issues relating to the merger of the ACA and the ABA are finalised before 1 July
2005 and it is desired that the ACMA be established as soon as that
occurs.
Clause 3 – Definitions
Clause 3 sets out
definitions of key terms used in the Bill. Clause 3 includes a definition of
‘member’ and provides that a member means a member of the ACMA but
does not include an associate member. However, an associate member would be
treated as a member if (and while) he or she is acting as a member under
subclause 23(2).
Clause 4 – When does an inquiry, investigation
or hearing end?
Clause 4 would enable the end of an inquiry,
investigation or hearing to be worked out for the purposes of a number of
provisions in the ACMA Bill that refer to the end of an inquiry, investigation
or hearing (see subcl. 21(3), 25(3) and (4)).
Clause 3 would define the
meanings of ‘hearing’, ‘inquiry’ and
‘investigation’ to cover all of the different types of hearings,
inquiries or investigations that may be undertaken by ACMA in the performance of
its functions.
Subclauses 4(3) and 4(5) are not intended to cover
notification of the results of an investigation to a complainant in order to
satisfy the requirements of natural justice. Similarly, subclauses 4(2) and
4(4) are not intended to apply where a preliminary report has been completed and
the requirements of natural justice (and in the case of subclause 4(4), section
180 of the BSA) require the ACMA to give persons whose interests would be
adversely affected by the publication of a matter in the report an opportunity
to make representations in relation to the matter.
Clause 5 –
When is there a vacancy?
Clause 5 has two purposes. First, it
provides that for the purposes of a reference in the ACMA Bill to a vacancy in
the office of a member, there are taken to be seven offices of members in
addition to the Chair or the Deputy Chair (para. 5(a)). This would enable the
number of offices which are vacant to be determined at any one time, despite
fluctuations in the number of members who have been appointed in addition to the
Chair and the Deputy Chair of the AMCA (see clause 19 which provides for the
membership of the ACMA to be comprised by a Chair, a Deputy Chair and at least
one and up to seven members) or acting appointments. For example, if there were
four persons, other than the Chair and Deputy Chair, appointed as members, the
effect of clause 5 would be that there would be three offices of members vacant.
The Minister would therefore be able to appoint three acting members in this
circumstance under subcl. 23(3). Similarly, if the office of the Chair were to
became vacant, so that the Deputy Chair would act in the position of the Chair
in accordance with paragraph 22(1)(a), the Minister would be able to appoint an
acting Deputy Chair under paragraph 23(1)(a) and up to four acting members under
subcl. 23(2).
Secondly, paragraph 5(b) provides that, for the purposes of
a reference in the AIA to a vacancy in the membership of a body, there are taken
to be seven offices of members in addition to the Chair and the Deputy Chair.
For example, subsection 33(2B) of the AIA provides that where an Act confers a
power or function, or imposes a duty, on a body (whether incorporated or
unincorporated), the exercise of the power or the performance of the function or
duty is not be affected merely because of a vacancy or vacancies in the
membership of the body (i.e. the performance of a function by the ACMA in
circumstances where it is comprised of a Chair, a Deputy Chair and four other
members would not be affected because there would be a vacancy in three offices
of members).
Part 2––ACMA’s establishment, functions, powers and liabilities
Division 1 –
Establishment
Clause 6 – Establishment
Clause 6 provides that the Australian Communications and Media
Authority is established.
Division 2 –
Functions
Clause 7 – ACMA’s
functions
Clause 7 provides that the ACMA’s functions are those
described in Division 2 of Part 2 of the Bill. Division 2 provides for
ACMA’s telecommunications functions (clause 8), spectrum management
functions (clause 9), broadcasting, content and datacasting functions (clause
10) and additional functions (clause 11).
Clause 8 –
ACMA’s telecommunications functions
Clause 8 sets out the
ACMA’s telecommunications functions. The functions specified in subclause
8(1) are the same as those currently given to the ACA by section 6 of the ACA
Act but include the function of monitoring, and reporting to the Minister on,
the operation of each Act specified in paragraph 8(1)(j) (paragraph 8(1)(k)).
Although the function expressed in paragraph 8(1)(k) would probably be covered
by paragraph 8(1)(l), the function of monitoring and reporting to the Minister
on the operation of the Acts listed in paragraph 8(1)(j) would ensure that the
ACMA’s telecommunications functions are expressed in a similar manner to
the ACMA’s broadcasting, content and datacasting functions. Paragraph
10(1)(r) provides that the ACMA’s broadcasting, content and datacasting
functions include monitoring and reporting to the Minister on the operation of
the Acts listed in paragraph 10(1)(o) and (p), to the extent that each Act is
specified, reflects current paragraph 158(n) of the BSA and paragraph 66(1)(d)
of the Interactive Gambling Act 2001.
Subclause 8(2) provides
that an expression that is used in section 8 that is also used in the Telecom
Act will have the same meaning in clause 8 as it has in that Act. For example,
the expression ‘telecommunications industry’ which is used in
paragraphs 8(1)(c), (g) and (i) is defined in section 7 of the Telecom
Act.
Clause 9 – ACMA’s spectrum management
functions
Clause 9 sets out the ACMA’s spectrum management
functions. The functions specified in clause 9 are the same as those currently
given to the ACA by section 7 of the ACA Act but include the function of
monitoring, and reporting to the Minister on, the operation of each Act
specified in paragraph 9(h) (paragraph 9(i)). Although the function expressed
in paragraph 9(i) would probably be covered by paragraph 9(j), the function of
monitoring and reporting to the Minister on the operation of the Acts listed in
paragraph 9(h) would ensure that the ACMA’s spectrum management functions
are expressed in a similar manner to the ACMA’s broadcasting, content and
datacasting functions..
Paragraphs 9(b), (c), (e), (f) and (g) refer
to the terms ‘radiocommunications community’ and paragraph 9(d)
refers to the term ‘radiocommunications’. These terms are defined
in clause 3 of the ACMA Bill.
Clause 10 – ACMA’s
broadcasting, content and datacasting functions
Clause 10 sets out
the ACMA’s broadcasting, content and datacasting functions. The functions
specified in clause 10 are essentially those specified in sections 158 and 159
of the BSA, with some minor changes that are not intended to alter the nature of
the functions performed by the ABA and which will now be performed by the ACMA.
The expression ‘broadcasting, content and datacasting functions’ is
intended to provide a broad description for the functions currently performed by
the ABA in relation to the regulation of broadcasting, Internet content and
datacasting under the BSA, although the ABA currently performs other functions
under other Acts such as the Radcom Act and the Interactive Gambling Act which
will become a function of ACMA under clause 10. It is intended that this
description would also cover any additional content-related functions that may
be given to the ACMA in the future.
The ACMA’s broadcasting,
content and datacasting functions are specified in clause 10 in a manner that is
consistent with the ACMA’s telecommunications and spectrum management
functions in clauses 8 and 9 but which ensures that all of the functions
currently performed by the ABA are preserved in this provision.
Paragraph 10(1)(a) provides a general function of regulating
broadcasting, Internet content and datacasting under the BSA which overlaps to
some degree with some of the other functions in clause 10 but is consistent with
the approach in clauses 8 and 9 of the Bill. The functions provided for in
paragraphs 10(1)(b) to (m) are equivalent to the functions of the ABA provided
for in paragraphs 158(b) to (l) of the BSA. It is not necessary to provide a
function similar to that provided for by paragraph 158(a) because this function
relates to the provision of advice to the ACA in relation to spectrum plans and
frequency band plans under the Radcom Act, and the designation of spectrum under
section 31 of the Radcom Act. The Australian Communications and Media Authority
(Consequential and Transitional Provisions) Bill 2004 will make amendments to
the Radcom Act to reflect the merger of the ACA and the ABA.
Paragraph 10(1)(n) provides that the ACMA has
the function of informing itself and advising the Minister on technological
advances and service trends in the broadcasting industry, Internet industry and
datacasting industry. This is intended to replicate the function provided in
paragraph 158(m) of the BSA, but with an additional reference to the Internet
industry to ensure consistency with paragraph 10(1)(a).
Paragraph
10(1)(o) provides that the ACMA has the functions conferred on it by or under
the Australian Broadcasting Corporation Act 1983, the BSA, the
Interactive Gambling Act 2001, the Radio Licence Fees Act 1964,
the Special Broadcasting Service Act 1991, subsection 158F(1) of the
Telecommunications (Consumer Protection and Service Standards) Act 1999
and the Television Licence Fees Act 1964. Paragraph 10(1)(p)
specifies particular functions that the ACMA will have under the Radcom Act
which are currently part of the ABA’s functions and will therefore need to
be included in the ACMA’s functions under clause 10. Currently, the
ABA’s functions equivalent to those in paragraphs 10(1)(o) and (p) are
provided for by section 159 of the BSA. Section 159 provides that the ABA has
(in addition to the functions specified in section 158) such other functions as
are conferred on it by the BSA or another Act. As clause 11 of the ACMA Bill
will provide that the ACMA has such additional functions as are conferred on it
by or under any other law, it is necessary to identify specifically the
functions that ACMA will have under other laws which will be part of its
broadcasting, content and datacasting functions. This will ensure that the
Minister’s ability to direct the ACMA in relation to the performance of
its broadcasting, content or datacasting functions will be the same as the
Minister’s current ability to direct the ABA in relation to the
performance of its functions as provided by section 162 of the BSA.
In
order to ensure consistency with the manner in which the ACMA’s
telecommunications and spectrum management functions are expressed in clauses 8
and 9, paragraph 10(1)(q) will give the ACMA the function of reporting to, and
advising, the Minister in relation to the broadcasting industry, the Internet
industry and the datacasting industry (cf. paragraphs 8(1)(c) and 9(c)) and
paragraph 10(1)(s) will give the ACMA the function of doing anything incidental
or conducive to the performance of any of the functions specified in clause 10
(cf. paragraphs 8(1)(l) and 9(j)).
Paragraph 10(1)(r) provides that the
ACMA has the function of monitoring and reporting to the Minister on the
operation of the Acts specified in paragraph 10(1)(o) or (p), to the extent that
those Acts are specified. This is intended to replicate the function provided
by paragraph 158(n) of the BSA and paragraph 66(1)(d) of the Interactive
Gambling Act 2001 but extends this function to the other Acts listed in
paragraphs 10(1)(o) and (p), to ensure consistency with paragraphs 8(1)(k) and
9(i).
Subclause 10(2) provides that an expression that is used in
clause 10 and that is also used in the BSA will have the meaning it has in the
BSA. For example, the expression ‘broadcasting service’ which is
used in paragraphs 10(1)(a), (i) and (m) is defined in section 6 of the
BSA.
Clause 11 – ACMA’s additional
functions
Clause 11 sets out the ACMA’s additional functions.
The functions specified in clause 11 are the same as those currently given to
the ACA by section 8 of the ACA Act.
Paragraphs 8(1)(aa) and (ab) of
the ACA Act provide the ACA with the functions of preparing to provide, and
providing, for the management of electronic addressing, pursuant to a written
instruction by the Minister. An instruction under paragraph 8(1)(aa) is a
disallowable instrument for the purposes of section 46A of the AIA. An
instruction under paragraph 8(1)(ab) must be published in the Gazette.
Paragraphs 11(1)(a) and (b) of the Bill would establish equivalent functions for
the ACMA. These instruments would be subject to the operation of the LIA.
The ACMA’s additional functions would include the provision of
technical services that relate to radiocommunications or telecommunications on a
commercial basis provided this would not impede the ACMA’s capacity to
perform its other functions (paragraphs 11(1)(c) and ss.11(2)).
‘Radiocommunications’ and ‘telecommunications’ are
defined broadly in clause 3 and, because the ACMA will have the statutory
functions currently performed by the ABA, would cover services that relate to
broadcasting and datacasting as well as the kind of services that the ACA was
able to provide under paragraph 8(a) of the ACA Act. Paragraph 11(1)(c) refers
to the ACMA providing services on behalf of the Commonwealth under a contract
made by the Commonwealth because the ACMA will not be able to enter into a
contract to provide services. Equally, as the ACMA would not own any
facilities, paragraph 11(1)(c) refers to the ACMA providing facilities on behalf
of the Commonwealth under a contract made by the Commonwealth. The persons
constituting the prescribed agency of ACMA would be able to enter into contracts
on behalf of the Commonwealth in accordance with arrangements determined by the
Chief Executive in accordance with the FMA Act and the FMA Regulations.
Division
3 – Powers and liabilities
Clause 12 –
ACMA’s powers
Subclause 12(1) provides that the ACMA will have
the power to do all things necessary or convenient to be done for or in
connection with the performance of its functions, subject to the limitation that
the ACMA would not have the power to acquire, hold or dispose of real or
personal property, enter into contracts or lease the whole or any part of any
land or building for its purposes. Subclause 12(2) provides that a right to sue
is not taken to be personal property for the purposes of paragraph 12(1)(a).
The purpose of subclause 12(2) is to make clear that the ACMA is able to
exercise rights to sue in connection with its statutory functions.
Item
64 of Schedule 1 to the Australian Communications and Media Authority
(Consequential and Transitional Provisions) Bill 2004 would amend the FMA
Regulations to provide that the members, associate members and staff of the
ACMA, and any persons whose services are made available to the ACMA under clause
55, are a prescribed agency for the purposes of the FMA Act. That item would
also amend the FMA Regulations to provide that the Chair of the ACMA is the
Chief Executive of that prescribed agency for the purposes of the FMA Act. The
Chair of the ACMA, acting under section 44 of the FMA Act, and members and staff
acting under delegations from the Chair under section 53 of the FMA Act, would
be able to enter into contracts on behalf of the Commonwealth (for example, a
consultancy contract).
Clause 13 –
ACMA’s financial liabilities are Commonwealth
liabilities
Subclause 13(1) provides that any financial liabilities
of the ACMA will be taken to be liabilities of the Commonwealth.
‘Financial liability’ is defined in subclause 13(2) to mean a
liability to pay to a person an amount, where the amount, or the method for
working out the amount, has been determined.
Division
4 – Requirements relating to these functions and
powers
Clause 14 – Minister may give directions to
the ACMA
Under subclause 14(1), the Minister will have the power to
give the ACMA written directions in relation to the performance of its functions
and the exercise of its powers. However, the Minister will only be able to give
the ACMA a direction in relation to ACMA’s broadcasting, content or
datacasting functions, or its powers relating to the those functions, that is
general in nature (subclause 14(2)). Subclause 14(5) makes it clear that the
power to give a direction under subclause 14(1) will not limit any other powers
the Minister has to give directions to the ACMA under the BSA. For example, the
Minister’s ability to give specific directions under subsections 19(3) and
36(2) of the BSA would not be affected by the limitation in subclause 14(2) on
the Minister’s ability to give a direction to the ACMA.
Subclauses 14(1) and (2)
would be equivalent to the current powers of the Minister to give directions in
relation to the telecommunications, spectrum management and additional functions
performed by the ACA (see section 12 of the ACA Act) and in relation to the
functions of the ABA as specified sections 158 and 159 of the BSA (see section
162 of the BSA).
Subclause 14(3) provides that any direction given by
the Minister under subclause 14(1) must be published in the Commonwealth
Gazette. As a result of clause 67, the ACMA will be required to maintain a
public register which includes any direction given to it by the Minister under
clause 14.
Subclause 14(4) provides that the ACMA must perform its
functions in a manner consistent with any directions given by the Minister under
subclause 14(1) in relation to the performance of the ACMA’s functions and
the exercise of its powers.
Clause 15 – ACMA not otherwise
subject to direction
Clause 15 provides that, except as otherwise
provided by or under this Bill (e.g. clause 14 above) or other legislation, the
ACMA will not be subject to direction by or on behalf of the Commonwealth.
Clause 15 is an equivalent provision to section 13 of the ACA Act and section
163 of the BSA, in that it is intended to prevent the executive arm of
government from giving directions to the ACMA in relation to the performance of
its statutory functions except as otherwise provided under the Bill or in
another Act.
Clause 16 – Consistency with CER Trade in Service
Protocol
Clause 16 provides that the ACMA must perform its
broadcasting, content and datacasting functions, and the exercise of its powers
relating to those functions, in a manner consistent with Australia’s
obligations under the CER Trade in Services Protocol (as defined in the BSA).
Clause 16 would be an equivalent provision to paragraph 160(d) of the BSA.
Clause 16 would ensure that the ACMA will be bound, as a matter of
domestic law, to take international obligations under the Protocol on Trade in
Services to the Australia New Zealand Closer Economic Relations Trade Agreement
(‘the CER Trade in Services Protocol’) into account in carrying out
its broadcasting, content and datacasting functions. This takes account of the
High Court’s decision in the Project Blue Sky case (Project Blue Sky
Inc. v Australian Broadcasting Authority (1998) 194 CLR 355) that found the
then Australian Content Standard to be inconsistent with the CER Trade in
Services Protocol.
The general law will apply to the ACMA in the
performance of its functions in relation to treaties other than the CER Trade in
Services Protocol.
Consistent with the decision in R v Australian
Broadcasting Tribunal; ex parte 2HD (1979) 144 CLR 45, the ACMA would be
required to perform its functions and exercise its powers in a manner consistent
with the scope and purpose of the legislation conferring those functions and
powers.
Clause 17 – ACMA to consult ACCC in relation to
management of electronic addressing
Clause 17 is a provision
equivalent to section 12A of the ACA Act.
The purpose of clause 17 is
to require the ACMA to consult with the ACCC before carrying out its functions
under paragraphs 11(1)(a) and (b) (which give the ACMA additional functions in
relation to preparing to provide for the management of electronic addressing or
providing for the management of electronic addressing where instructed to do so
by the Minister), where, in the ACMA’s opinion, that would have a
significant effect on competition or consumer protection. This requirement
would ensure that the ACCC would continue to have a role in issues that have a
significant effect on competition or consumer protection in relation to the
management of electronic addressing.
Part 3 – ACMA’s constitution and membership
Division 1 –
Constitution
Clause 18 – ACMA’s
constitution
The ACMA will be a body corporate, with perpetual
succession. It will also have a seal and be able to sue and be sued in its
corporate name (subcl. 18(1)).
The ACMA’s seal is to be kept in
safe custody and must not be used except as authorised by the ACMA (subcl.
18(2)).
All courts, judges and other persons acting in a judicial
capacity will be required to take judicial notice of the imprint of the
ACMA’s seal on a document and presume that the imprint was duly affixed
(subcl. 18(3)).
Division 2 –
Membership
Subdivision A –
Members
Clause 19 – Membership
The ACMA
will consist of a Chair, a Deputy Chair and between one and seven other members.
The Minister will also be able to appoint as many associate members of the ACMA
as he or she thinks fit (see cl. 24).
Clause 20 – Appointment of
members
The ACMA’s members will be appointed by the
Governor-General (subcl. 20(1)). The Chair and the Deputy Chair are to be
appointed as full-time members (subcl. 20(2)) and other members may be appointed
either as full-time or as part-time members (subcl. 20(3)).
The
Minister, acting on the advice of the ACMA, will be able to assign a part-time
member on a full-time basis to an inquiry, investigation or hearing (subcl.
20(4)) and the member will be taken to be a full-time member until the end of
the inquiry, investigation or hearing (subcl. 20(5)). Clause 3 of the Bill
defines the terms ‘hearing’, ‘inquiry’ and
‘investigation’ for the purposes of the Bill and clause 4 determines
when the end of a hearing, inquiry or investigation occurs. The restriction on
a full-time member engaging in paid employment outside their duties without the
Chair’s approval (see subcl. 31(2)) will not apply to a part-time member
who has been assigned to an inquiry, investigation or hearing under subclause
20(4). Similarly, paragraph 34(5)(b), which allows a full-time member or
full-time associate member’s appointment to be terminated if that member
or associate member engages in outside paid employment without the Chair’s
approval, will not apply to a part-time member who has been assigned to an
inquiry, hearing or investigation under subclause 20(4).
If subclause
31(2) and paragraph 34(5)(b) were to apply to a part-time member (who would
usually have outside employment) who had been assigned on a full-time basis to a
particular inquiry, investigation or hearing, the member would be required to
resign from any outside position, unless the Chair agreed that continuation of
that employment was acceptable. This would be an inappropriate imposition on a
part-time member in circumstances where the assignment as a full-time member
would only be temporary.
Clause 21 – Period of appointment for
members
Subclause
21(1) provides that a member will hold office for the period specified in his or
her instrument of appointment. This period must not exceed 5 years.
A
person will be able to be appointed as a member more than once, subject to the
limitation that a later appointment must not result in the sum of the
person’s total periods of appointment exceeding 10 years (subcl. 21(2)).
This would include any period of appointment (including non-consecutive
appointments) as a member or an associate member of the ACMA (paragraph
21(4)(a)). Previous appointments as a member, or associate member, of the ABA
or the ACA (but not AUSTEL which was the body corporate that was continued in
existence as the ACA as a result of section 14 of the ACA Act, nor to the
Spectrum Management Agency or the Australian Broadcasting Tribunal) will also
count towards the 10-year limit.
Despite the limitations on a
member’s period of appointment in subclauses 21(1) and (2), if the member
is conducting, or is part of the panel conducting, an inquiry, hearing or
investigation the Minister will be able to extend the member’s appointment
until the end of the inquiry, investigation or hearing (subcl. 21(3)). Clause 3
of the Bill defines ‘inquiry’, ‘investigation’ and
‘hearing’ and clause 4 determines when the end of an inquiry,
investigation or hearing occurs. For example, if a member had been appointed for
a five year period ending on 30 June of a particular year, and the member was
part of a panel conducting an inquiry under Part 25 of the Telecom Act that
would continue until after 30 June, the Minister would be able to extend the
member’s appointment until the end of the inquiry by written instrument.
The member’s appointment would end at the end of the day on which the ACMA
completes the preparation of a report about the inquiry under section 495 of the
Telecom Act (see clause 4 of the Bill).
Clause 22 – Acting
Chair
The Deputy Chair, or the Acting Deputy Chair, is to act as the
Chair during a vacancy in the office of Chair or during any period, or during
all periods, when the Chair is absent from duty or from Australia or is, for any
reason, unable to perform the duties of the office (subcl. 22(1)).
While
the Deputy Chair is acting as the Chair, the Deputy Chair will have, and may
exercise, all the Chair’s powers and would be required to perform all of
the Chair’s functions. The ACMA Act and all other Acts would apply to the
Deputy Chair as if he or she were the Chair (subcl. 22(2)). Anything done by or
in relation to the Chair when purporting to act under clause 22 will not be
invalid merely because the occasion to act had not arisen or had ceased (subcl.
22(3)).
Clause 23 – Acting appointments – members other
than the Chair
The Minister will be empowered to appoint a member to
act as the Deputy Chair during a vacancy in the office of Deputy Chair or during
any period, or during all periods, when the Deputy Chair is acting as the Chair,
is absent from duty or from Australia or is, for any reason, unable to perform
the duties of the office (subcl. 23(1)).
The Minister will be empowered
to appoint a person to act as a member (other than as Chair or Deputy Chair)
during a vacancy in the office of a member or during any period, or during all
periods, when a member is acting as the Deputy Chair, is absent from duty or
from Australia or is, for any reason, unable to perform the duties of the office
(subcl. 23(2)).
A defect or irregularity in connection with a
person’s appointment to act under clause 23 will not invalidate anything
done by the person when purporting to act under this clause. Nor will certain
other technicalities viz. the occasion for the appointment not having arisen,
the appointment ceasing to have effect and the occasion for the person to act
not having arisen or having ceased (subcl. 23(3)).
Section 33A of the AIA
contains further provisions dealing with acting appointments which are relevant
to acting appointments made under clause 23. The effect of these provisions is
that:
(a) an acting appointment may be expressed to have effect only in
the circumstances specified in the instrument of appointment;
(b) the
appointer may determine the terms and conditions of the appointment, including
remuneration and allowances and terminate the appointment at any
time;
(c) where the appointment is to act in a vacant office, the
appointee must not continue to act in the office for more than 12
months;
(d) where the appointee is acting in an office other than a
vacant office and the office becomes vacant while the appointee is acting then,
unless his or her instrument of appointment provides otherwise, the appointee
may continue to act until the appointer otherwise directs, the vacancy is filled
or a period of 12 months from the day the vacancy ends, whichever happens
first;
(e) the appointment ceases to have effect if the appointee resigns
in writing delivered to the appointer;
(f) while the appointee is acting
in the office, he or she has and may exercise all the powers, and is to perform
all the functions and duties, of the holder of the office and the ACMA Bill and
any other legislation will apply in relation to the appointee as if the
appointee were the holder of the office.
The effect of clause 5 of the
Bill would be that for the purposes of a reference to a vacancy in section 33A
of the AIA, there will be taken to be seven offices of members of the ACMA in
addition to the Chair and the Deputy Chair.
Subdivision
B – Associate members
Clause 24 – Appointment
of associate members
The Minister will be able to appoint such
associate members as he or she thinks fit by written instrument (subcls. 24(1)
and (2)). An associate member may be appointed either as a full-time or as a
part-time associate member (subcl. 24(3)).
Associate members will be
appointed for specified and not general purposes. An associate member’s
instrument of appointment will be required to state that the appointment relates
to:
• an inquiry, investigation or hearing (as defined in clause
3); or
• any other matter that relates to the performance of the
ACMA’s functions or the exercise of the ACMA’s
powers.
Clause 25 – Period of appointment for associate members
Subclause 25(1) provides that an associate member will hold office
for the period specified in his or her instrument of appointment. This period
must not exceed 5 years.
A person will be able to be appointed as an
associate member more than once, subject to the limitation that a later
appointment must not result in the sum of the person’s total periods of
appointment exceeding 10 years (subcl. 25(2)). This would include any period of
appointment (including non-consecutive appointments) as an associate member or a
member of the ACMA (paragraph 25(5)(a)). Previous appointments as a member, or
associate member, of the ABA or the ACA (but not AUSTEL which was the body
corporate that was continued in existence as the ACA as a result of section 14
of the ACA Act, nor the Spectrum Management Agency or the Australian
Broadcasting Tribunal) will also count towards the 10-year limit.
If an
associate member has been appointed for the purposes of a specified inquiry,
investigation or hearing and that inquiry, investigation or hearing ends before
the period of appointment specified in the associate member’s instrument
of appointment, the associate member will hold office until the end of the
inquiry, investigation or hearing (subcl. 25(3)). In addition, despite the
limitations on a member’s period of appointment in subclauses 25(1) and
(2), if the associate member is conducting, or is part of the panel conducting,
an inquiry, hearing or investigation the Minister will be able to extend the
member’s appointment until the end of the inquiry, investigation or
hearing (subcl. 25(4)). Clause 3 of the Bill defines ‘inquiry’,
‘investigation’ and ‘hearing’ and clause 4 determines
when the end of an inquiry, investigation or hearing occurs.
Clause
26 – Acting appointments – associate members
The Minister
will be empowered to appoint a person to act as an associate member during any
period, or during all periods, when an associate member is acting as a member,
is absent from duty or from Australia or is, for any reason, unable to perform
the duties of the office (subcl. 26(1)).
A defect or irregularity in
connection with a person’s appointment to act under clause 26 will not
invalidate anything done by the person when purporting to act under this clause.
Nor will certain other technicalities viz. the occasion for the appointment not
having arisen, the appointment ceasing to have effect and the occasion for the
person to act not having arisen or having ceased (subcl. 26(2)).
The
provisions of section 33A of the AIA discussed under clause 23 would be equally
relevant to acting appointments of associate members under clause 26.
Clause 27 - Associate members to be treated as members for certain
purposes in other Acts
The effect of clause 27 would be that where an
Act, (other than the ACMA Bill) refers to a member of the ACMA, an associate
member would be taken to be a member for all purposes in connection with any
inquiry, hearing or other matter specified in his or her instrument of
appointment, unless there is a contrary intention expressed in the other Act.
For example, section 491 of the Telecom Act (as amended by the Australian
Communications and Media Authority (Consequential and Transitional Provisions)
Bill 2004) provides that a hearing for the purposes of a public inquiry under
that Act may be constituted by a member or members of the ACMA determined in
writing by the Chair of the ACMA. The effect of clause 27 would be that the
Chair could determine that an associate member is to form part of the panel for
a hearing to the extent that the hearing is connected to the matter or matters
specified in the associate member’s instrument of appointment.
In
relation to the ACMA Bill, where an associate member is to be treated as a
member for a provision in the Bill, associate members are expressly mentioned in
the provision (see for example clauses 29 and 30) and where this is not the
intention, the relevant provision refers only to members (see for example clause
36 which would prevent two associate members from requesting the Chair to
convene a meeting of the ACMA).
Division 3 –
Terms and Conditions for members and associate
members
Clause 28 – Remuneration
A member
or associate member is to be paid such remuneration as is determined by the
Remuneration Tribunal. If no determination of that remuneration is in
operation, the member or associate member is to be paid such remuneration as is
prescribed in the regulations (subcl. 28(1)).
A member or associate
member is to be paid such allowances as are prescribed in the regulations
(subcl. 28(2)).
Clause 28 has effect subject to the Remuneration
Tribunal Act 1973 which provides for the Remuneration Tribunal to conduct
inquiries and make determinations on the remuneration of certain office holders
(subcl. 28(3)).
Clause 29 – Standing obligation to disclose
interests
Clause 29 requires members and associate members of the
ACMA to disclose any interest he or she has if the interest could conflict with
the proper performance of the functions of the member or associate
member’s office. Clause 29 would impose a standing obligation on members
and associate members to disclose all potential conflicting interests in writing
to the Minister and to each member (but not associate members) of the ACMA as
soon as possible after the member or associate member becomes aware of the
potential for conflict. The obligation to disclose potential conflicts would
apply irrespective of whether the interest would directly or indirectly conflict
with the performance of the member or associate member’s functions of
office, or whether the interest is pecuniary or otherwise, and whether the
interest was acquired before or after the member or associate member was
appointed.
Clause 30 – Obligation to disclose interest before
deciding a particular matter
Clause 30 requires a member or associate
member, who has an interest that could conflict with the proper performance of
the functions of his or her office, as they give him or her a role in deciding a
particular matter, not to perform that role unless the member or associate
member has disclosed that interest to each of the members (but not each
associate member) and each member (but not associate member) has consented to
the relevant member or associate member performing the role despite the possible
conflict of interest. The obligation to disclose conflicts would apply
irrespective of whether the interest would directly or indirectly conflict with
the performance of the member or associate member’s functions in relation
to the particular matter, or whether the interest is pecuniary or otherwise, and
whether the interest was acquired before or after the member or associate member
was appointed.
Each member notified of the conflict and who has
consented to the member or associate member performing the relevant role despite
the possible conflict of interest would need to notify his or her consent to the
Chair (subcl. 30(3)). The Chair, in turn, would need to give the Minister a
written notice that describes the interest and the particular matter which the
member or associate member’s functions give him or her a role in deciding,
and advise the Minister whether all of the members have consented to the member
or associate member performing that role (subcl. 30(4)).
If a member or
associate member’s role in deciding a particular matter would extend over
a period of time, the disclosure of the potential conflict of interest and the
consent from all members to perform the role in relation to that matter would
cover the entire period during which the member or associate member performs the
role. For example, a member or associate member would not need to disclose the
interest at each meeting of the ACMA or a Division at which the particular
matter was to be discussed and decided, and the consent procedure and
notification of the Minister would not need to be repeated, if the member or
associate member had initially done so, the members had consented to the member
or associate member performing that role in relation to that matter and the
Chair had notified the Minister as required by subclause 30(4).
Clause
31 – Outside employment
The Chair of the ACMA will not be able
to engage in paid employment outside the duties of his or her office without the
Minister’s approval (subcl. 31(1)).
The other full-time members and
the full-time associate members will not be able to engage in paid employment
outside the duties of their offices without the Chair’s approval (subcl.
31(2)). The restriction in subclause 31(2) would not apply to a part-time
member who had been assigned on a full-time basis to an inquiry, investigation
or hearing by the Minister under subclause 20(4). Similarly, paragraph
34(5)(b), which allows a full-time member or full-time associate member’s
appointment to be terminated if that member or associate member engages in
outside paid employment without the Chair’s approval, will not apply to a
part-time member who has been assigned to an inquiry, hearing or investigation
under subclause 20(4).
If subclause 31(2) and paragraph 34(5)(b) were to
apply to a part-time member (who would usually have outside employment) who had
been assigned on a full-time basis to a particular inquiry, investigation or
hearing, the member would be required to resign from any outside position,
unless the Chair agreed that continuation of that employment was acceptable.
This would be an inappropriate imposition on a part-time member in circumstances
where the assignment as a full-time member would only be
temporary.
Clause 32 – Leave of absence
A full-time
member or full-time associate member will have such recreation leave
entitlements as are determined by the Remuneration Tribunal (subcl.
32(1)).
The Minister may grant the Chair leave of absence, other than
recreation leave, on such terms and conditions as to remuneration or otherwise
as the Minister determines (subcl. 32(2)).
The Chair may grant another
full-time member or a full-time associate member leave of absence, other than
recreation leave, on such terms and conditions as to remuneration or otherwise
as the Chair determines (subcl. 32(3)).
The Chair may grant leave of
absence to a part-time member or part-time associate member on the terms and
conditions that the Chair determines (subcl. 32(4)).
Clause 33 –
Resignation
A member or associate member may resign by giving his or
her appointer (the Governor-General in the case of a member or the Minister in
the case of an associate member – see the definition of
‘appointer’ in clause 3) a written resignation.
Clause
34 – Termination of appointment
The effect of subclause 34(1)
and the definition of ‘appointer’ in clause 3 is that the
Governor-General will be obliged to terminate the appointment of a member if the
Minister is of the opinion that the member’s performance has been
unsatisfactory for a significant period of time. Similarly, the Minister will
be obliged to terminate the appointment of an associate member if the Minister
is of the opinion that the associate member’s performance has been
unsatisfactory for a significant period of time.
The Governor-General
will be obliged to terminate the appointment of all the members and associate
members if the Minister is of the opinion that the performance of the ACMA has
been unsatisfactory for a significant period of time (subcl. 34(2)).
The
Governor-General will have a discretion to terminate the appointment of a member
on the grounds of misbehaviour or physical or mental incapacity. The Minister
will have a discretion to terminate the appointment of an associate member on
the same grounds (subcl. 34(3) and the definition of ‘appointer’ in
cl. 3).
Subclause 34(4) and the definition of ‘appointer’ in
clause 3 give the Governor-General (in the case of a member) and the Minister
(in the case of an associate member) a discretion to terminate the appointment
of a member or associate member if:
(a) the member or associate member
becomes bankrupt, applies for relief from bankruptcy, enters into an
arrangement with creditors regarding the payment of his or her debts or assigns
all or part of his or her remuneration for the benefit of creditors;
(b) the member or associate member fails, without reasonable excuse, to
comply with clause 29 or 30. Clause 29 imposes a standing obligation on
members and associate members of the ACMA to disclose interests which may
potentially conflict with the proper performance of their functions of office.
Clause 30 prevents a member or associate member from performing a role in
deciding a particular matter if he or she has an interest that may conflict
with the performance of that role unless the member or associate member
discloses the interest and all members consent to the member or associate
member performing that role;
(c) the member or associate member (being
full-time) engages in paid outside employment without the approval required by
clause 31 or is absent from duty, except on leave of absence, for 14 consecutive
days or for 28 days in any 12 consecutive months;
(d) the member (being
part-time) is absent, except on leave of absence, from 3 consecutive meetings of
the ACMA;
(e) the associate member (being part-time) is absent, except
on leave of absence, from 3 consecutive meetings of the ACMA. The only
meetings that would be taken into account for this purpose are meetings that
the associate member was entitled to attend because the meeting was considering
a matter connected with a hearing, inquiry, investigation or other matter
specified in the associate member’s instrument of appointment. In
addition, such a meeting would only be counted if reasonable efforts had been
made to inform the associate member of the meeting at which the relevant matter
was going to be considered.
If the Minister is of the opinion that the
members have failed to comply with clause 56 (which requires the ACMA to prepare
a corporate plan) or clause 57 (which requires the ACMA to prepare an annual
report), the Governor-General may terminate the appointment of all members or
particular members (subcl. 34(7)). Subclause 34(7) would not apply to associate
members of the ACMA.
Clause 35 – Other terms and
conditions
Clause 35 provides that:
(a) an ACMA member will
hold office on such further terms and conditions (if any) in relation to matters
that are not covered by the ACMA Bill as are determined by the Governor-General;
and
(b) an associate member of the ACMA will hold office on such further
terms and conditions (if any) in relation to matters that are not covered by
the ACMA Bill as are determined by the Minister.
Part 4 – Decision-making and
delegation by ACMA
Division 1 – Meetings
Clause 36
– Times and places of meetings
The ACMA is to hold such
meetings as are necessary for the efficient performance of its functions (subcl.
36(1)).
The general rule is that meetings are to be held at such times
and places as the ACMA determines (subcl. 36(2)). This rule is subject to the
following qualifications:
• the Chair may call a meeting at any
time (subcl. 36(3));
• the Chair must call a meeting if the
Minister so requests in writing (para. 36(4)(a));
• the Chair must
call a meeting if requested to do so in writing by at least 2 other members
(para. 36(4)(b)).
Associate members would not have the ability to request
the Chair to call a meeting under paragraph 36(4)(b). This would be consistent
with clause 39, which provides that a majority of members, but not associate
members, constitute a quorum at a meeting of the ACMA.
Clause 37
– Notice of meetings
Clause 37 provides that reasonable efforts
are to be made to give each member notice of the ACMA’s
meetings.
If an associate member is entitled to attend a particular ACMA
meeting because the agenda for the proposed meeting mentions a matter connected
with an inquiry, hearing, investigation or other matter specified in his or her
terms of appointment, reasonable efforts must also be made to give the associate
member notice of the meeting.
Clause 38 – Presiding at
meetings
The Chair is to preside at all meetings at which he or she
is present (subcl. 38(1)). In the absence of the Chair, the Deputy Chair is to
preside (subcl. 38(2)). In the absence of both the Chair and the Deputy Chair,
the members (other than associate members) present are to appoint one of their
number to preside (subcl. 38(3)).
Clause 39 –
Quorum
A majority of the members will constitute a quorum at an ACMA
meeting (subcl. 39(1)). Associate members of the ACMA present at a meeting will
not be counted for the purposes of a reaching a quorum. Subclause 39(2) deals
with the situation where a member is required by clause 30 not to be present
during the deliberations, or to take part in the any decision, of the ACMA with
respect to a particular matter and as a result of the member leaving the meeting
there would no longer be a quorum present. In such a circumstance, the
remaining members present would constitute a quorum for the purposes of any
deliberation or any decision at the meeting with respect to the particular
matter.
Clause 40 – Participation etc. by associate members at
meetings
Clause 40 provides that an associate member is entitled to
attend and participate in discussions, at meetings of the ACMA while the meeting
is considering a matter connected with a hearing, inquiry, investigation or
other matter specified in the associate member’s instrument of
appointment. The entitlement of an associate member to attend and participate
in discussions at such meetings would be subject to clause 30, which would
require an associate member to disclose an interest that may conflict with the
associate member properly performing a role in deciding a particular matter and
would prevent the associate member from performing that role unless all other
members consented to the associate member doing so.
An associate member
will also be able to be appointed to one or more Divisions if a matter or
matters to be considered by the Division are connected with the matter specified
in the associate member’s instrument of appointment. If the Division may
deal with a number of matters, only one of which or some of which are connected
with the matter specified in the associate member’s instrument of
appointment, the associate member would only be able to take part in decisions
relating to the matter if that matter is connected with the matter specified in
the instrument of appointment.
Clause 41 – Voting at
meetings
Questions at meetings will be decided by a majority of the
votes of the members present and voting and the votes of any associate members
entitled to be present and to vote on a question (subcl. 41(1)). An associate
member would be entitled to vote on a question if it relates to a matter
connected with a hearing, inquiry, investigation or a matter specified in the
associate member’s instrument of appointment.
The person
presiding at a meeting will have a deliberative vote and, if necessary, also a
casting vote, i.e. the deciding vote when the votes on each side are equal
(subcl. 41(2)).
Clause 42 – Conduct of
meetings
Subject to Division 1 of Part 4 of the Bill, the ACMA may
regulate proceedings at its meetings as it considers appropriate.
It would also be open to
the ACMA to permit members and associate members to participate in a meeting, or
all meetings, of the ACMA by telephone, closed-circuit television or any other
means of communication. A member or associate member who participates in a
meeting in accordance with such permission would be taken to be present at the
meeting (see s. 33B of the AIA).
Clause 43 –
Minutes
Clause 43 requires the ACMA to keep minutes of its
meetings.
Division 2 – Decisions without
meetings
Clause 44 – Decisions without
meetings
Clause 44 allows the ACMA to determine that decisions can be
made without a meeting and the method by which a particular matter, or a range
of matters, can be resolved without holding a meeting.
If the ACMA
determines that subclause 44(1) applies in relation to a particular matter or
particular matters and the method by which members are to indicate agreement to
a proposed decision, a resolution in relation to the matter or matters will be
taken to have been passed at a meeting of the ACMA if:
• without
meeting, a majority of members indicate their agreement in accordance with the
method determined by the ACMA; and
• all members were informed of
the proposed resolution, or reasonable efforts had been made to inform them of
it.
Subclause 44(1) will not apply to a member who, if the proposed
decision were a matter to be considered at a meeting of the ACMA, would be
prevented by clause 30 from deliberating on the proposed decision of the ACMA
(subcl. 44(3)).
For the purposes of a particular proposed decision,
clause 44 would apply to an associate member as if the associate member were a
member if the proposed decision relates to a matter connected with an inquiry,
hearing, investigation or other matter specified in the associate member’s
instrument of appointment (subcl. 44(4)).
Clause 45 – Record
of decisions
Clause 45 requires the ACMA to keep a record of
decisions that are made in accordance with clause 44 (i.e. without a
meeting).
Division 3 –
Divisions
Clause 46 – Divisions
Clause 46
allows the ACMA to establish one or more Divisions of members to deal with
certain matters determined by the ACMA (subcl. 46(1)). The Division would not
be able to perform any of the ACMA’s functions, or exercise any of the
ACMA’s powers, unless the relevant function or power has been delegated to
the Division by the ACMA under clause 50. The establishment of Divisions will
allow the ACMA to require groups of members to undertake a specific function or
functions – an example would be where ACMA wishes to have members and
associate members with a particular interest or experience in a function, to
undertake that function. A Division could also be set up to undertake a
particular inquiry or investigation. The number of Divisions, and their
purpose, will be a matter for the ACMA to determine, and the ACMA will have the
power to dissolve a Division or change the matters it deals with at any time.
A Division must contain at least 3 members (excluding associate members)
chosen from time to time by the ACMA. If the Chair is not chosen by the ACMA to
be one of those members, the Chair could elect to be a member of the Division
(subcl. 46(3)). A Division could also include one or more associate members
chosen from time to time by the ACMA if the kind of matters that the Division
can deal with include a matter connected with an inquiry, hearing, investigation
or other matter specified in the each associate member’s instrument of
appointment (subcl. 46(4)).
A member or associate member could be in more
than one Division (subcl. 46(5)).
The ACMA could remove a member or
associate member from a Division but could not remove the Chair from a Division
(subcl. 46(6)).
A Division would be able to decide a matter at a meeting
of the Division under clause 47 or without a meeting in accordance with clause
48 (subcl. 46(7)).
Clause 47 – Meetings of a
Division
Subclause 47(2) allows a Division to determine its own rules
relating its meetings, for example, in relation to the calling of meetings and
how decisions are made at meetings. However, the ability of a Division to
determine its own rules relating to its meetings would be subject to subclause
47(3) which would prevent a Division from excluding the operation of clause 30
(which imposes an obligation to disclose interests before deciding a particular
matter) or allowing an associate member to vote on a question which does not
relate to a matter connected with an inquiry, hearing or investigation or other
matter specified in the associate member’s instrument of appointment.
Subclause 47(1) provides default rules for meetings of a Division which
would apply where a Division has not determined rules under subclause 47(2) or
to the extent that rules determined under that subclause do not displace a
default rule. The default rules in subclause 47(1) are consistent with the
rules that apply to ACMA meetings, as provided by clauses 36 to 41, and deal
with the calling of meetings, the quorum necessary for a Division meeting, the
appointment of a presiding member, and voting at Division meetings.
It
would also be open to a Division to permit its members (including associate
members) to participate in a meeting, or all meetings, by telephone,
closed-circuit television or any other means of communication. A member or
associate member who participates in a meeting in accordance with such
permission is taken to be present at the meeting (see section 33B of the
AIA).
Clause 48 – Divisions can make decisions without
meetings
Clause 48 is a provision equivalent to clause 44. It would
allow a Division to determine that decisions can be made without a meeting and
the method by which a particular matter, or a range of matters, can be resolved
without holding a meeting.
Clause 49 – Minutes
etc.
Clause 49 requires a Division to keep minutes of its meetings
and a record of decisions made in accordance with clause 48 without a
meeting.
Division 4 –
Delegations
Clause 50 – Delegations by ACMA to a
Division
Subclause 50(1) allows the ACMA to delegate any or all of
its functions and powers to a Division to the extent that they relate to the
matters that the Division can deal with (which would be specified in a
determination made by the ACMA under clause 46).
A member of the
Division would be able to sign a certificate stating any matter with respect to
the performance of the delegated function or the exercise of the delegated power
and this would constitute prima facie evidence of that matter which could be
rebutted by evidence to the contrary (subpara. 50(2)(b)(i)). An associate
member would be able to sign such a certificate if he or she participated, or
could have participated, in the making of the Division’s decision to
perform the delegated function or exercise the delegated power (subpara.
50(2)(b)(ii)). A document purporting to be such a certificate will be taken to
be such and to have been duly given unless the contrary is established (subcl.
50(3)). Certificates signed by a member or, where appropriate, an associate
member, would provide a means of a Division, which is not a legal person,
proving its resolutions or actions.
Clause 51 – Delegations by
ACMA to others
Subject to clause 53 (which specifies limitations on
the ability of the ACMA to delegate certain powers), clause 51 provides that the
ACMA may delegate any or all of its functions and powers to a member, a member
of the ACMA staff or a person whose services are made available to the ACMA
under subclause 55(1) (paras. 51(a), (c) and (d)). The ACMA may delegate
functions and powers to an associate member if the delegated function or power
relates to a matter connected with an inquiry, investigation or hearing or other
matter specified in the associate member’s instrument of appointment
(para. 51(b)).
It is not practicable to limit this power of delegation to
senior officers of the ACMA. Consistent with the current approach of the ACA
and the ABA, many of the ACMA’s routine administrative decisions, such as
the issue of cabling licences, customer equipment permits and
radiocommunications licences, will be made by officers of the organisation at
junior levels. Important decisions, such as the making of delegated
legislation, will not be able to be delegated (see clause 53).
Clause
52 – Delegations by a Division
Clause 52 is similar to clause
51 but deals with the ability of a Division to sub-delegate functions or powers
that have been delegated to it by the ACMA under clause 50. Subject to clause 53
(which specifies limitations on the ability of a Division to sub-delegate
certain powers), the Division may sub-delegate any or all of its delegated
functions or powers to a member, a member of the ACMA staff or a person whose
services are made available to the ACMA under subclause 55(1) (paras. 52(a), (c)
and (d)). Similarly to paragraph 51(b), paragraph 52(b) would allow a Division
to sub-delegate a function or power to an associate member if the delegated
function or power relates to a matter connected with an inquiry, investigation
or hearing or other matter specified in the associate member’s instrument
of appointment.
A delegation by a Division would remain in force despite
the membership of a Division changing from time to time (subcl. 52(2)).
A
delegation could be revoked or varied by a Division. A change in membership of
the Division would not affect the ability of a Division to revoke or vary a
delegation (subcl. 52(3).
A member of the Division would be able to sign
a certificate stating any matter with respect to a delegated function and this
would constitute prima facie evidence of that matter which could be rebutted by
evidence to the contrary (subpara. 52(4)(a)(i)). An associate member would be
able to sign such a certificate if he or she participated, or could have
participated, in the making of the Division’s decision to perform the
delegated function or exercise the delegated power (subpara. 52(4)(b)(ii)). A
document purporting to be such a certificate will be taken to be such and to
have been duly given unless the contrary is established (subcl. 52(5)).
Certificates signed by a member or, where appropriate, an associate member,
would provide a means of a Division, which is not a legal person, proving its
delegations and actions relating to delegations.
Subclause 52(6) provides
that sections 34AA, 34AB and 34A of the AIA would apply to a delegation under
clause 52 by the Division in the same way that those provisions would apply to a
delegation by ACMA to the Division.
The effect of sections 34AA, 34AB and
34A of the AIA is as follows:
(a) Any provision in the Bill which confers
power to delegate a function or power is not limited to delegating the function
or power to a specified person but includes a power to delegate the function or
power to any person from time to time holding, occupying, or performing the
duties of, a specified office or position, even if the office or position does
not come into existence after the delegation is given.
(b) Where any
provision in the Bill confers power on a person or body (referred to below as an
authority) to delegate a function or power:
(i) the
delegation may be made either generally or as otherwise provided by the
instrument of delegation;
(ii) the powers that may be delegated do not
include that power to delegate;
(iii) a function or power so delegated,
when performed or exercised by the delegate, shall, for the purposes of the ACMA
Bill, be deemed to have been performed or exercised by the authority;
(iv) a delegation by the authority does not prevent the performance or
exercise of a function or power by the authority; and
(v) if the
authority is not a person (which will be the case in relation to a Division of
the ACMA), section 34A of the AIA, described in paragraph (c) below, will apply
as if it were.
(c) Where, under the Bill, the exercise of a power or
function by a person is dependent upon the opinion, belief or state of mind of
that person in relation to a matter and that power or function has been
delegated in pursuance of the Bill, that power or function may be exercised by
the delegate upon the opinion, belief or state of mind of the delegate in
relation to that matter.
Clause 53 – Limit on powers delegable
to persons other than Divisions
Clause 53 imposes limits on the
ability of the ACMA to delegate certain powers and the ability of a Division
established by the ACMA to sub-delegate certain powers delegated to it by the
ACMA under clause 50.
Currently, subsection
48(2) of the ACA Act prevents the ACA from delegating the power to make, revoke
or vary an instrument that is a disallowable instrument for the purposes of
section 46A of the AIA. A similar limitation applies to the ability of the ABA
to delegate such powers (para. 18(2)(p) of Schedule 3 to the BSA). Subclause
53(1) will prevent the ACMA or a Division from delegating the power to make,
vary or revoke a legislative instrument for the purposes of the LIA. As any
instrument that is a disallowable instrument for the purposes of section 46A of
the AIA is deemed to be a legislative instrument for the purposes of the LIA
(see subpara 6(d)(i) of the LIA), subclause 53(1) therefore provides an
equivalent limitation on the ability to delegate powers as is provided currently
under the ACA Act and the BSA. It will also cover any instruments which are not
currently disallowable instruments but are legislative instruments for the
purposes of the LIA as it is appropriate that legislative instruments made in
the exercise of a power delegated by the Parliament should be exercised by the
ACMA or a Division of the ACMA.
Subclause 53(2) lists a number of powers
under the BSA which may not be delegated by the ACMA or a Division. This would
preserve the current limitations in paragraphs 18(2)(a) to (o), (q) and (r) in
Schedule 3 to the BSA. A number of the powers listed in subclause 46(2) may be
covered under subclause 53(1) but this is not intended to limit the operation of
subclause 53(1).
Part 5 – ACMA’s staff
etc
Clause 54 – Staff
The ACMA’s staff will consist
of persons engaged under the Public Service Act 1999 (subcl.
54(1)).
For the purposes of the Public Service Act 1999, the Chair
and the ACMA staff will together constitute a Statutory Agency and the Chair
will be the Head of that Statutory Agency (subcl. 54(2)).
Clause 55
– Arrangements with authorities of the Commonwealth
Subclause 55(1) will allow the ACMA to make an arrangement with a
Commonwealth authority for one of their officers or employees to be made
available to the ACMA or for the services of ACMA staff to be made available to
that Commonwealth authority. ‘Commonwealth authority’ is defined in
subclause 55(2) to be a Department of State, a
Department of the Parliament, a prescribed Agency within the meaning of the FMA
Act, a Commonwealth authority or a Commonwealth company within the meaning of
the CAC Act and a body established for a public purpose by or under a law of the
Commonwealth.
Part 6––Corporate planning and reporting by ACMA
Clause 56 – Corporate plans
The ACMA will be required
to prepare a corporate plan at least once a year and give it to the Minister
(subcl. 56(1)).
The plan will be required to cover a period of at least 3
years (subcl. 56(2)).
The plan will be required to include details of the
ACMA’s objectives, the strategies and policies that are to be followed by
the ACMA in order to achieve those objectives and such other matters as the
Minister requires (subcl. 56(3)).
The Chair of the ACMA will be required
to keep the Minister informed about changes to the plan and matters that might
significantly affect the achievement of the objectives set out in the plan
(subcl. 56(4)).
The Minister will be able to give the ACMA Chair written
guidelines to be used by the Chair in deciding whether a matter might
significantly affect the achievement of the objectives set out in the plan
(subcl. 56(5)). The Minister will also be able to give the ACMA Chair written
guidelines to assist the Chair in deciding whether a matter is covered by
paragraph 56(3)(c). This power may be used where the matters required by the
Minister to be included in the plan under paragraph 56(3)(c) are broad in
nature.
Clause 57 – Annual report
Clause 57 requires
the ACMA, as soon as practicable after 30 June in each financial year, to
prepare and give to the Minister a report on the ACMA’s operations during
that financial year. Item 15 of Schedule 4 to the Australian Communications and
Media Authority (Consequential and Transitional Provisions) Bill 2004 deals with
the ACMA’s first annual report.
The annual report will be required
to include a copy of each Ministerial direction given to the ACMA during the
financial year under cl. 14 in relation to the performance of its functions and
the exercise of its powers.
The annual report will also be required to
include a copy of any instrument that the ACMA gave to a carrier or carriage
service provider under s. 581 of the Telecom Act during the financial year to
which the annual report relates in connection with performing any of the
ACMA’s telecommunications functions or exercising any of the ACMA’s
telecommunications powers if, in the ACMA’s opinion, the instrument
contains no confidential information (para. 57(2)(b)).
If an instrument
made under section 581 does, in the ACMA’s opinion, contain confidential
information:
(a) if, in the ACMA’s opinion, part of the instrument
can be reproduced in the annual report without disclosing confidential
information, the report is to include a copy of that part;
(b) if
paragraph (a) does not apply, the annual report is to include:
(i) a
statement specifying the instrument and the carrier or carriage service provider
to which, and the day on which, it was given; and
(ii) a statement that,
because of confidential information contained in the instrument, or in a part of
it, as the case requires, the instrument or part is not reproduced in the annual
report; and
(iii) a note summarising so much of the instrument as is not
so reproduced, but without disclosing any information that, in the ACMA’s
opinion, is confidential (para. 57(2)(c)).
The annual report is also to
include a report on:
(a) the number and types of complaints made under
Part 26 of the Telecom Act during the financial year; and
(b) the
investigations conducted under Part 26 of that Act during the financial year as
a result of complaints made under Part 26; and
(c) the results of those
investigations (para. 57(2)(d)).
For the purposes of paragraph 57(2)(d),
the report would not need to discuss in detail each investigation conducted
under Part 26, and the result of each investigation, but could discuss
investigations conducted in relation to particular types of complaints, and the
results of those complaints, in an aggregate form. For example, in
circumstances where the ACMA received a large number of complaints of a
particular kind, it would be sufficient if the report provides details of how
many of those complaints resulted in an investigation being conducted and, in
broad terms, the result of those investigations.
The ACMA’s annual
report will also be required to include:
(a) a report on the operation
during the financial year of Part 6 of the Telecom Act (which deals with
industry codes and industry standards); and
(b) a report setting out
statistical information relating to information or documents disclosed under
Division 3 of Part 13 of that Act (which authorises the disclosure of certain
protected information in certain circumstances e.g. the disclosure of the
contents of communications carried by carriers or carriage service providers to
law enforcement authorities),
where the disclosure occurred during the
financial year and is covered by a report given to the ACMA under section 308 of
the Telecom Act (paras. 57(2)(e) and (f)).
Clause 57 is based on section
50 of the ACA Act which provides for the same matters a are specified in
subclause 57(2) to be included in the ACA’s annual report (except that any
Ministerial direction required to be included would be a direction given by the
Minister under section 12 of the ACA Act). Clause 57 preserves these particular
requirements for the ACMA’s annual report but, consistent with the
approach of the BSA, does not extend the requirement in paragraph 57(2)(d) to
require the ACMA to report on the complaints received and investigations
conducted under the BSA. However, the ACMA would be able to report on such
matters in the annual report, or any other matter it considered appropriate, as
it saw fit.
The Minister would be required to cause a copy of each annual
report to be tabled in each House of the Parliament within 15 sitting days of
that House after the day on which the Minister receives the report from the ACMA
(subcl. 57(3)).
Part 7 ––Advisory committees and the Consumer Consultative Forum
Clause 58 – Advisory committees
Clause 58 is based on
section 51 of the ACA Act and would allow the ACMA to establish advisory
committees to assist it in performing any of its functions. Such an advisory
committee will consist of such persons as the ACMA from time to time appoints to
the committee (subcl. 58(2)). The ACMA would be able to revoke a person’s
appointment to an advisory committee (subcl. 58(3)). The ACMA will be able to
give an advisory committee written directions as to the way in which the
committee is to carry out its functions and procedures to be followed in
relation to meetings (subcl. 58(4)).
An appointment to an advisory
committee will not be a public office within the meaning of the Remuneration
Tribunal Act 1973 (subcl. 58(5)). The Remuneration Tribunal will not
therefore have a role in determining the remuneration (if any) that is to be
paid to an appointee to such a committee.
Item 13 of Schedule 4 to the
Australian Communications and Media Authority (Consequential and Transitional
Provisions) Bill 2004 would preserve any advisory committees that were in
existence immediately before the time that the ACMA is
established.
Clause 59 – Consumer Consultative
Forum
Subclause 59(1) provides for the continued existence of the
Consumer Consultative Forum (the Forum), an advisory committee that was required
to be established by the ACA under the section 52 of the ACA Act to assist the
ACA in performing its functions in relation to matters affecting consumers.
Subclause 59(2) therefore provides that the function of the Forum is to assist
the ACMA in relation to the performance of its functions in relation to matters
affecting consumers.
The ACMA will be able to appoint persons to the
Forum. At the time of the establishment of the ACMA, the persons on the Forum
will be the persons who were appointed to the Forum immediately before the
establishment of the ACMA (subcl. 59(3)). The ACMA would be able to revoke a
person’s appointment to the Forum (subcl. 59(4)). An appointment to the
Forum will not be a public office within the meaning of the Remuneration
Tribunal Act 1973 (subcl. 59(6)). The Remuneration Tribunal will not
therefore have a role in determining the remuneration (if any) that is to be
paid to an appointee to the Forum.
Similarly to subclause 58(4), the ACMA
will be able to give the Forum written directions as to the way in which it is
to carry out its functions and procedures to be followed in relation to meetings
(subcl. 59(5)).
Part 8 – Other
matters
Clause 60 – Charges relating to the ACMA’s
expenses
Clause 60 is based on section 53 of the ACA
Act.
Subclause 60(1) provides that the ACMA will be able to make a
written determination fixing charges for:
(a) services provided by the
ACMA; and
(b) any matter in relation to which expenses are incurred by
the ACMA under:
(i) the Bill;
(ii) the Telecom Act;
(iii) the
Telecommunications (Consumer Protection and Service Standards) Act 1999;
(iv) the Radcom Act;
(v) the BSA; or
(iv) an instrument made under the
above-mentioned Acts,
and specifying the persons by whom, and the times
when, the charges are payable.
Subclause 60(2) provides that a charge
fixed under subcl. 60(1) must not be such as to amount to
taxation.
Subclause 60(3) provides that for the purpose of recovering all
or part of the ACMA’s expenses in performing its functions under paragraph
11(1)(a) or (b) (which relate to the preparation for the management of
electronic addressing and the management of electronic addressing), the ACMA may
charge a person an amount that has been agreed with the person or worked out
under an agreement with the person. This subclause is intended to ensure that
the ACMA is clearly able to recover the cost involved in performing these
functions regardless of any legal uncertainties about whether a particular fee
relates to ‘services or facilities’, whether a charge relates to
services or facilities under a contract or whether (in the absence of an
agreement) a charge would be a tax for the purposes of the
Constitution.
Subclause 60(4) provides that subclause 60(3) does not
limit subclause 60(1) (i.e. it does not imply that the ACMA must obtain a
person’s agreement to a charge that relates to the ACMA’s expenses
in performing its functions under paragraphs 11(1)(a) and (b) where that charge
does not amount to taxation).
Subclause 60(5) provides that clause 60
does not apply to services or facilities provided under contract. Any
consideration payable in relation to the supply of services or facilities would
be determined by the contract.
A determination made by the ACMA under
subcl. 60(1) will be subject to the operation of the LIA.
Clause 61
– Fees and charges are payable to the Commonwealth
Clause 61
provides that if clause 60 or a provision of another Act authorises the ACMA to
charge a fee, however described, that fee is payable to the Commonwealth. This
provision reflects that the members and staff of the ACMA would be a prescribed
agency for the purposes of the FMA Act and the limitations on the ACMA’s
powers under clause 12 (as a body corporate that does not have the power to hold
personal property other than a right to sue, ACMA will not have its own bank
account).
Clause 62 – ACMA’s expenses include related
Commonwealth expenses
Clause 62 provides that a reference in clause
60, or a provision of another Act, to an expense (however described) incurred by
the ACMA in relation to a thing, includes a reference to an expense incurred by
the Commonwealth in relation to the thing. This is because ACMA, the body
corporate established under clause 6 of the ACMA Bill, would not incur the
expense but rather the Commonwealth (because the members, associate members and
staff of the ACMA, and persons whose services have been made available to the
ACMA under clause 55, would be a prescribed agency for the purposes of the FMA
Act – see item 64 in Schedule 1 to the Communications and Media Authority
(Consequential and Transitional Provisions) Bill 2004).
Clause 63
– Chair not subject to direction on certain matters
Clause 63
makes it clear that the ACMA may not direct the Chair in relation to the
Chair’s performance of functions, or exercise of powers, as Chief
Executive under the FMA Act or as Agency Head under the Public Service Act. The
purpose of clause 63 is to avoid possible conflicts between the Chair’s
powers and responsibilities under the FMA Act as Chief Executive of the
prescribed agency of the ACMA (as prescribed by the FMA Regulations – see
item 64 of Schedule 1 to the Communications and Media Authority (Consequential
and Transitional Provisions) Bill 2004), and under the Public Service Act as
Agency Head, and decisions made by the ACMA (being decisions made by the body
corporate established under clause 6).
Clause 64 – Definitions
determination
The ACMA will be able to make a determination setting
out definitions of one or more expressions used in specified instruments made by
the ACMA under specified Commonwealth laws such as the BSA, the Telecom Act, the
Radcom Act, the proposed Australian Communications and Media Authority Act
2004 and associated tax legislation (subcl. 64(1)). Such a determination
will be subject to the operation of the LIA.
Clause 64 is equivalent to
section 54 of the ACA Act and will facilitate the standardisation of terms in
such instruments, and the ready amendment of terms without the need for
amendment to each affected instrument. Clause 64 will operate in addition to
section 589 of the Telecom Act and section 314A of the Radcoms Act which allow
instruments under those Acts for matters by reference to other
instruments.
If the Minister is authorised to make an instrument under a
Commonwealth law specified in a definitions determination, the instrument will
be able to make provision for or in relation to a matter by applying, adopting
or incorporating, with or without modification, the provisions of a definitions
determination as in force from time to time (subcl. 64(2)).
Clause 65
– Determinations may define expressions by reference to other
instruments
Clause 65 is equivalent to section 54A of the ACA Act.
The purpose of this clause is to allow a definitions determination made
under clause 64 to apply, adopt or incorporate any other instrument or writing
(made within or outside Australia, with or without a legislative, administrative
or other official nature and with or without any legal force or effect) as in
force or existing at a particular time or from time to time.
Under clause
64, the ACMA will be able to make a written determination defining one or more
expressions used in instruments made by the ACMA under one or more specified
laws of the Commonwealth. Any such written determination will be subject to the
operation of the LIA. Section 46A of the AIA provides that section 49A of that
Act applies to an instrument that is a disallowable instrument as if the
instrument were regulations under an Act. Section 49A would effectively allow a
written determination made by the ACMA under clause 64 to apply, adopt or
incorporate (with or without modification) the provisions of any Act or
regulations as in force from time to time or any matter contained in any other
instrument or writing as in force or existing as the time when the written
determination takes effect.
This means that section 49A would restrict
the ACMA, in exercising its power under clause 64, from applying, adopting or
incorporating within a written determination, matters contained in an instrument
or other writing that exist from time to time (i.e. matters in instruments or
other writing made after the date of effect of the written
determination).
This would cause unnecessary administrative work for the
ACMA and would lack the flexibility found in section 314A of the Radcom Act and
section 589 of the Telecom Act. Both of these sections allow instruments made
under the relevant Act to apply, adopt or incorporate any other instrument or
writing (made within or outside Australia, with or without a legislative,
administrative or other official nature and with or without any legal force or
effect) as in force or existing at a particular time or from time to
time.
Clause 65 would allow a determination made under subclause 64(1) to
apply, adopt or incorporate such materials, and in such circumstances, as are
permitted under both section 314A of the Radcom Act and section 589 of the
Telecom Act. It provides that a determination made by the ACMA under subclause
64(1) of the Bill may define an expression used in a specified instrument by
applying, adopting or incorporating (with or without modifications) matter
contained in any other instrument or writing whatever as in force or existing at
a particular time (paragraph 65(1)(a)) or as in force or existing from time to
time (paragraph 65(1)(b)). An instrument or writing includes an instrument or
writing made by any person or body in Australia or elsewhere and whether of a
legislative, administrative or official or any other nature and whether or not
having any legal force (paragraphs 65(2)(a) to (c)). Examples of such
instruments or writing are regulations, rules or instruments made under a
Commonwealth or State or Territory Act; an international technical standard or
performance indicator; a written agreement or arrangement or an instrument or
writing made unilaterally (paragraphs 65(2)(d) to (g)). However, the examples
given in paragraphs 65(2)(d) to (g) do not limit the type of instrument or
writing that may be applied, adopted or incorporated in a written instrument
made under section 64 (subcl. 65(3)).
Subclause 65(4) provides that subclause 65(1) has effect despite anything
in the AIA. This is to ensure that the AIA will not affect the ACMA’s
power to make written determinations made under clause 64 in the manner
described above.
Clause 66 – Persons not to use protected name or protected
symbol
Clause 66 is a criminal offence provision similar to section
55 of the ACA Act.
Subclause 66(1) would provide that a person will
commit an offence if the person:
(a) uses in relation to a business,
trade, profession or occupation; or
(b) uses as the name, or as part of
the name, of any firm, body corporate, institution, premises, vehicle, ship or
craft (including aircraft); or
(c) applies, as a trade mark or otherwise,
to goods imported, manufactured, produced, sold, offered for sale or let on
hire; or
(d) uses in relation to goods or services, or the promotion by
any means of the supply of goods or services;
either a protected name
(being either the name ‘Australian Communications and Media
Authority’ or the acronym ‘ACMA’) or symbol (being an official
symbol of the ACMA, the design of which is prescribed in the regulations), or a
name or symbol so closely resembling a protected name or symbol as to be likely
to be mistaken for it.
An individual who contravenes subclause 66(1)
will be guilty of an offence punishable on conviction by a fine not exceeding 30
penalty units. A body corporate that contravenes the provision will be guilty
of an offence punishable on conviction by a fine not exceeding 150 penalty
units. A penalty unit is worth $110 (ss. 4AA and 4B(3) of the Crimes Act
1914).
Subclause 66(2) would provide a defence, for which the
defendant would bear the evidential burden, that the ACMA had consented in
writing to the use or application of the protected name or
symbol.
Subclauses 66(3) to (5) would specify a number of matters
relating to particular uses or applications of ACMA’s name, acronym or
symbol in relation to which the prosecution will have the legal and evidential
burden (subcl. 66(6)). Subclause 66(3) would provide that subclause 66(1) will
not affect rights in relation to the ACMA’s name or acronym or an official
symbol of the ACMA conferred by a trade mark or design registered immediately
before 11 May 2004, which was the date that the establishment of the ACMA was
announced as part of the 2004 Federal Budget.
Similarly, subclause 66(4)
would provide that nothing in subclause 66(1) will affect a person’s
existing legal rights to use the ACMA name or acronym or an official symbol of
the ACMA in a particular manner if, immediately before 11 May 2004, the
person:
(a) was using the name, acronym or symbol in good faith in that manner; or
(b) 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.
Subclause 66(5) would provide that subclause 66(1) will not apply to
a person who uses or applies the ACMA name or acronym or an official symbol of
the ACMA for the purpose of labelling customer equipment or customer cabling in
accordance with the Telecom Act or the Radcom Act.
Item 16 in
Schedule 4 to the Australian Communications and Media Authority (Consequential
and Transitional Provisions) Bill 2004 will provide that the protection
currently given to the ACA name, acronym and symbol under s. 55 of the ACA Act
will continue to apply for 12 months after the ACMA is established or such
longer period (if any) as is specified in the regulations. As a provision
equivalent to section 55 of the ACA Act does not exist in the BSA to protect the
ABA name, acronym and symbol, it will not be necessary to provide a similar
transitional provision in relation to those matters.
Clause 67 –
ACMA to maintain Register of policy notifications and Ministerial
directions
The ACMA will be required to maintain a public register of
all Ministerial directions given to the ACMA under clause 14 or under any other
Act (para. 67(1)(a)). The Register will also need to include the contents of
the register that was maintained by the ACA under section 56 of the ACA Act
immediately before the establishment of the ACMA (para. 67(1)(b)).
The
Register will be able to be maintained by electronic means (subcl. 67(2)). On
payment of the fee (if any) fixed by an ACMA cost recovery determination under
clause 60, a person will be able to inspect the Register and make a copy of, or
take extracts from, the Register (subcl. 67(3)).
If the Register is
maintained by electronic means, a person will be taken to have made a copy of,
or to have taken an extract from, the Register if the ACMA gives the person a
printout of, or of the relevant parts of, the Register (subcl. 67(4)).
If
a person requests that a copy of the Register be provided in an electronic form,
the ACMA will be able to provide the relevant information on a data processing
device such as a floppy disk or by way of an electronic transmission (subcls.
67(5) and (6)).
Clause 68 – Regulations
Clause 68
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.