1996

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

TELECOMMUNICATIONS (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 1996

EXPLANATORY MEMORANDUM

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

79911 Cat. No. 96 5594 8 ISBN 0644 480262

TELECOMMUNICATIONS (TRANSITIONAL PROVISIONS 
AND CONSEQUENTIAL AMENDMENTS) BILL 1996

OUTLINE

The Telecommunications (Transitional Provisions and Consequential Amendments) Bill 1996 (‘the Bill’) contains transitional provisions and consequential amendments related to the proposed Telecommunications Act 1996. 

The Bill deals with the merger of the Australian Telecommunications Authority (‘AUSTEL’) and the Spectrum Management Agency (SMA) and the transfer of competition policy resources from AUSTEL to the Australian Competition and Consumer Commission (‘ACCC’) on 1 July 1997.  The merger on this date of AUSTEL and the SMA to form the Australian Communications Authority (to be known as the ACA) is part of a proposed scheme for regulating telecommunications in Australia from 1 July 1997 under the proposed Telecommunications Act 1996.

The Bill also provides for transitional provisions relating to a number of other matters including the telecommunications access regime under proposed Part XIC of the Trade Practices Act 1974 (‘TPA’) and to carrier licences.  Access agreements between carriers registered under s. 144 of the Telecommunications Act 1991 immediately before 1 July 1997 will be deemed to have been registered with the ACCC under the proposed new access regime arrangements.  They will therefore be enforceable as though they were a determination by the ACCC under the access regime.  Existing carriers will be deemed to have been granted a carrier licence under the proposed Telecommunications Act 1996 on 1 July 1997.  In addition, after 5 June 1997 the Minister will be able to make, vary or revoke carrier licence conditions generally or in relation to each specific licence.  This will enable the Minister to vary existing carrier licence conditions in line with the provisions of the new legislation.

As a result of the proposed Telecommunications Act 1996, Schedule 1 to the Bill makes a number of consequential amendments to other Commonwealth Acts.

Schedule 2 to the Bill has four Parts dealing with amendments to the Radiocommunications Act 1992.  The first Part provides for minor amendments consequential on the merger of the SMA and the ACA.  The second Part provides for minor amendments consequential on the enactment of the proposed Telecommunications Act 1996.  The third Part deals with the conduct of public inquiries by the new ACA on radiocommunications matters.  The fourth Part provides for amendments relating to alignment of the technical regulation regimes of the Radiocommunications Act and the proposed Telecommunications Act 1996.

Schedules 3 and 4 to the Bill make minor amendments consequential on the enactment of the proposed Commonwealth Authorities and Companies Act 1996 and the Financial Management and Accountability Act 1996.

As a consequence of the proposed Telecommunications Act 1996, the proposed Telecommunications (Carrier Licence Charges) Bill 1996, the proposed Telecommunications (Numbering Charges) Act 1996 and the proposed Telecommunications (Universal Service Levy) Act 1996, Schedule 5 to the Bill repeals the Telecommunications Act 1991, the Telecommunications (Public Mobile Licence Charge) Act 1992, the Telecommunications (Numbering Charges) Act 1991, the Telecommunications (Universal Service Levy) Act 1991 and the Telecommunications (Application Fees) Act 1991.  Schedule 5 also repeals the Radiocommunications (Permit Tax) Act 1983, which is now defunct.

FINANCIAL IMPACT

The transition to the post-1997 regime and its initial implementation will require considerable effort by the ACA, the ACCC, AUSTEL, the SMA and the Department of Communications and the Arts.  The ACCC is expected to receive supplementary funding in the order of $1m for the necessary pre-commencement tasks it needs to undertake and this will be recovered from carrier licence fees in 1997/98.

Details of ongoing resource requirements will be considered in the 1997/98 and subsequent budget processes.

ABBREVIATIONS

The following abbreviations are used in this explanatory memorandum:

ACA:			Australian Communications Authority

ACCC:		Australian Competition and Consumer Commission

AUSTEL:		Australian Telecommunications Authority

Bill:			Telecommunications (Transitional Provisions and 					Consequential Amendments) Bill 1996

CAC Bill:		Commonwealth Authorities and Companies Bill 1996

FMA Bill:		Financial Management and Accountability Bill 1996			
Radcom Act:		Radiocommunications Act 1992

SMA:			Spectrum Management Agency

TIO:			Telecommunications Industry Ombudsman

TPA:			Trade Practices Act 1974

NOTES ON CLAUSES

Part 1––Preliminary

Clause 1 – Short title

Clause 1 provides for the citation of the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1996.

Clause 2 – Commencement

Clause 2 provides for the Bill, when enacted, to commence on Royal Assent with certain exceptions.

The provisions which will commence on Royal Assent (to enable relevant preliminary work to be undertaken) are:

•	Part 1 of the Bill, dealing with preliminary matters;

•	Divisions 1 to 4 (inclusive) and 13 to 16 (inclusive) of Part 3 of the Bill, dealing with transitional provisions relating to:

–	the merger of AUSTEL and the SMA;

–	the transfer of competition policy resources from AUSTEL to the ACCC;

–	the telecommunications access regime;

–	anti-competitive conduct in the telecommunications industry;

–	the numbering plan made by the ACA under cl. 439 of the Telecommunications 	Bill 1996;

–	the exercise of certain powers by AUSTEL on behalf of the ACA before 1 July 	1997 (including the determination of application charges for carrier licences, the 	receipt of applications for carrier licences, the determination of allocation 	charges for certain numbers, the determination of charges relating to the ACA’s 	costs and the making of delegations); and

–	eligible combined areas.

The following provisions will commence on 1 July 1997:

(a)	Part 2 and Schedule 5 which repeal:

–	the Radiocommunications (Permit Tax) Act 1983, which is now defunct;
	
–	the Telecommunications Act 1991, which is to be replaced by the proposed Telecommunications Act 1996 – this Act will also deal with matters currently dealt with by the Telecommunications (Application Fees) Act 1991 which Schedule 5 will repeal; and

–	related taxing legislation, which is to be replaced by new taxing legislation as part of the package of post-1997 telecommunications legislation;

(b)	Divisions 5 to 12 (inclusive) of Part 3 which deal with transitional provisions relating to:

–	technical standards under s. 244 of the Telecommunications Act 1991;

–	indicative performance standards;

–	the universal service regime;

–	the chart of accounts and the cost allocation manual;

–	international aspects of carriers’ activities;

–	cabling and customer equipment;

–	the protection of the confidentiality of communications; and

–	reviews and reports about the telecommunications industry;

(c)	Part 4 and Schedules 1 and 2 – which make consequential amendments to the Radiocommunications Act 1992 and other Commonwealth legislation as a result of the enactment of the proposed Telecommunications Act 1996 (cl. 2(2)).

Schedule 3 to the Bill, dealing with amendments consequential on the enactment of the proposed Commonwealth Authorities and Companies Act 1996, will commence when that Act commences (cl. 2(3)).

Schedule 4 to the Bill, dealing with amendments consequential upon the enactment of the proposed Financial Management and Accountability Act 1996, will commence when that Act commences (cl. 2(4)).

If the proposed Broadcasting Services Amendment Act 1996 (which, among other things, makes an amendment to s. 171 of the Broadcasting Services Act 1992) does not commence before 1 July 1997, the amendments made to that section by items 13 and 14 of Schedule 1 to the Bill will commence immediately after the commencement of the proposed Broadcasting Services Amendment Act 1996 (cl. 2(5)).

If the proposed Legislative Instruments Act 1996 (which, among other things, specifies existing telecommunications and radiocommunications legislation as legislation providing for legislative instruments likely to have an effect on business) does not commence before 1 July 1997, the amendments made to this specification by items 37, 38 and 39 of Schedule 1 to the Bill will commence immediately after the commencement of the Legislative Instruments Act 1996 (cl. 2(6)).

Part 2––Repeals

Clause 3 – Repeals

Clause 3, when read with Schedule 5 to the Bill, provides for the repeal of:

(a)	the Radiocommunications (Permit Tax) Act 1983, which is now defunct;
	
(b)	the Telecommunications Act 1991, which is to be replaced by the proposed Telecommunications Act 1996  – this Act will also deal with matters currently dealt with by the Telecommunications (Application Fees) Act 1991 which Schedule 5 will repeal; and

(c)	related taxing legislation, which is to be replaced by new taxing legislation as part of the package of post-1997 telecommunications legislation.

Clause 4 – Compensation––constitutional safety-net

If, apart from cl. 4, the operation of Part 2 of the Bill would result in the acquisition of property from a person otherwise than on just terms in contravention of paragraph 51(xxxi) of the Constitution, the Commonwealth will be liable to pay reasonable compensation to the person in respect of the acquisition (cls. 4(1) and (3)).

If the Commonwealth and the person cannot agree on the amount of the compensation, the person will be able to institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines (cl. 4(2)).

Part 3––Transitional

Division 1––Transitional provisions relating to 
the merger of AUSTEL and the SMA

Clause 5 – Definitions

Clause 5 sets out the definitions of key terms used in Division 1 of Part 3.

Clause 6 – Transfer of assets to the ACA

Clause 6 deals with the transfer to the ACA of Commonwealth assets used, or proposed to be used, by the SMA  (cl. 6(1)).  Unlike AUSTEL, the SMA is not a legal person and does not hold assets in its own name.

The term ‘asset’ is defined widely in clause 5 to mean any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective, and any right, power, privilege and immunity, whether actual, contingent or prospective.

The Minister will be empowered to arrange for the transfer to the ACA of any asset the Minister considers appropriate to be transferred to the ACA for the performance of its functions and the exercise of its powers (cl. 6(2)).  The Minister will also be empowered to declare that a specified instrument (such as a written agreement) relating to such an asset continues to have effect after the asset vests in the ACA as if a reference in the instrument to the Commonwealth were a reference to the ACA – the effect of this will be to ensure that any rights or obligations under an instrument relating to the Commonwealth will become rights or obligations of the ACA from 1 July 1997 (cls. 6(4) and (5)).

Assets will also be able to be transferred to the ACA by other means (such as by a deed of conveyance, assignment or transfer) (cl. 6(3)).

The transfer of SMA staff to the ACA will be dealt with under s. 29 of the Public Service Act 1922.

Clause 7 – Re-transfer of assets

The purpose of cl. 7 is to allow the correction of any errors in the transfer to the ACA under cl. 6 of assets used, or proposed to be used, by the SMA (cl. 7(1)).  

This correction will be effected by way of one or more of the following Ministerial declarations:

•	a declaration that a specified asset vests in the Commonwealth at a specified time before 1 January 1998 without any conveyance, transfer or assignment;

•	a declaration that a specified instrument (such as a written agreement) relating to a specified asset continues to have effect after the asset vests in the Commonwealth as if a reference in the instrument to the ACA were a reference to the Commonwealth – the effect of this will be to ensure that any rights or obligations under an instrument relating to the ACA will again become rights or obligations of the Commonwealth from a date before 1 January 1998 specified in the declaration;

•	a declaration that the Commonwealth becomes the ACA’s successor in law in relation to a specified asset immediately after the asset vests in the Commonwealth  (cls. 7(2), (3) and (4)).

Clause 8 – Transfer of liabilities to the ACA

Clause 8 deals with the transfer to the ACA of Commonwealth liabilities relating to the SMA (cl. 8(1)).  Unlike AUSTEL, the SMA is not a legal person and does not incur liabilities in its own name.  Any liabilities relating to the SMA are incurred in the name of the Commonwealth.

‘Liability’ is defined widely in cl. 5 to mean any liability, duty or obligation, whether actual, contingent or prospective.

A transfer to the ACA of a Commonwealth liability relating to the SMA will be effected by way of one or more of the following Ministerial declarations:

•	a declaration that a specified liability ceases to be a liability of the Commonwealth and becomes a liability of the ACA at 1 July 1997;

•	a declaration that a specified instrument (such as a written agreement) relating to a specified liability continues to have effect after the liability becomes a liability of the ACA as if a reference in the instrument to the Commonwealth were a reference to the ACA – the effect of this will be to ensure that any obligations under an instrument relating to the Commonwealth will become obligations of the ACA from 1 July 1997;

•	a declaration that the ACA becomes the Commonwealth’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the ACA (cls. 8(2) and (3) and cl. 5, definition of ‘merging time’).

Clause 9 – Re-transfer of liabilities

The purpose of cl. 9 is to allow the correction of any errors in the transfer to the ACA under cl. 8 of liabilities relating to the SMA (cl. 9(1)).

This correction will be effected by way of one or more of the following Ministerial declarations:

•	a declaration that a specified liability ceases to be a liability of the ACA and becomes a liability of the Commonwealth at a specified time before 1 January 1998;

•	a declaration that a specified instrument (such as a written agreement) relating to a specified liability continues to have effect after the liability becomes a liability of the Commonwealth as if a reference in the instrument to the ACA were a reference to the Commonwealth – the effect of this will be to ensure that any obligations under an instrument relating to the ACA will again become obligations of the Commonwealth from a date before 1 January 1998 specified in the declaration;

•	a declaration that the Commonwealth becomes the ACA’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the Commonwealth  (cls. 9(2), (3) and (4)).

Clause 10 – Transfers of land may be registered

Clause 10 provides for a simplified land registration procedure in connection with the re-transfer to the Commonwealth of land used for SMA purposes under cl. 7.

This procedure is as follows:

•	The Minister signs a certificate identifying the land and stating that a right, title or interest in the land has become vested in the Commonwealth under proposed s. 7.

•	The certificate is lodged with a relevant State or Territory land registration official.

•	The land registration official may register the matter in the same way as, or in a way similar to the way that, other dealings in land of that kind are registered and may deal with and give effect to the Minister’s certificate (cls. 10(1) and (2)).

A document that appears to be the Minister’s certificate is to be taken to be such a certificate, and to have been properly given, unless the contrary is established (cl. 10(3)).

Clause 11 – This Division does not modify registers kept by land registration officials

The effect of cl. 11 is that the provisions in Division 1 of Part 3 modifying references in documents to ‘the Commonwealth’ and ‘the ACA’ respectively to references to ‘the ACA’ and ‘the Commonwealth’ respectively do not result in any modification to a land titles register.

Clause 12 – Exemption from stamp duty and other taxes

Stamp duty and other State or Territory taxes will not be payable in respect of the transfer of an asset or liability under Division 1 of Part 3 or anything done in connection with such a transfer (cl. 12).

Clause 13 – Lands Acquisition Act does not apply to this Division

Clause 13 provides that the Lands Acquisition Act 1989 (setting out procedures relating to the acquisition of land by the Commonwealth and certain Commonwealth authorities and dealings with land so acquired) does not apply to anything done under Division 1 of Part 3 in connection with the transfer to the ACA of land used for SMA purposes or the re-transfer of that land to the Commonwealth.

Clause 14 – References in instruments to the SMA become references to the ACA

Clause 14 allows the Minister to declare that an instrument (such as a written agreement) that was in force on 30 June 1997 and that contains a reference to the SMA or the Spectrum Manager has effect as if the reference were to the ACA, or the Chairman of the ACA, as the case may be.

Clause 15 – Transfer of SMA records to the ACA

Clause 15 provides that any records or documents that were in the possession of the Spectrum Manager (whose role it is to control the operations of the SMA) immediately before 1 July 1997 (‘the merging time’ – see cl. 5) and that relate to the SMA are to be transferred to the ACA from that date.

Clause 16 – Acts of the SMA to be attributed to the ACA etc.

Clause 16 provides that anything done by, or in relation to, the SMA under the Radiocommunications Act 1992 (Radcom Act) before 1 July 1997 (‘the merging time’ – see cl. 5) has effect as if the thing had been done by, or in relation to the ACA (cls. 16(1) and (2)).

Examples of things done by the SMA under the Radcom Act include issuing apparatus and spectrum licences, class licences and permits (cl. 16(3)).  Other examples include:

•	issuing certificates of proficiency under s. 121;

•	issuing a permission to supply a non-standard device under s. 174;

•	issuing a compliance certificate under s. 184;

•	issuing an identity card to an inspector under s. 268;

•	issuing an evidentiary certificate under s. 305;

•	giving a direction under ss. 116, 212, 240, 281;
 
•	giving a notice under ss 33, 43, 54, 73, 75, 77, 78, 82, 100, 101, 111, 116, 121, 122, 124, 126, 128, 130, 132, 134, 135, 136, 145, 153, 167, 168, 171, 174, 182, 184, 190, 191, 193, 195, 205, 212, 213, 257, 264, 265, 287, 289; the Schedule, Part 1, cls 3 and 5 and the Schedule, Part 2, cls 4 and 5;

•	serving a pre-acquisition declaration under the Schedule, Part 1, cl. 2;

•	giving an approval in relation to: (1) the form of applications (ss. 99, 120, 131AA, 153, 167, 263, 268 and 288); (2) the form of a request for an advice (s. 140); and (3) the form of a claim (the Schedule, Part 1, cl. 5 and the Schedule, Part 2, cl. 3);

•	making a declaration under s. 122, 190 or under Part 1, item 1 of the Schedule.

A condition included in a licence or other instrument of a kind referred to above, or imposed in connection with such an instrument, will have effect as if it had been included or imposed by the ACA.

Examples of things done in relation to the SMA will include applications for licences or permits under the Radcom Act (cl. 16(4)).

Clause 17 – Pending proceedings––Commonwealth a party

Clause 17 provides for the substitution from 1 July 1997 of the ACA for the Commonwealth as a party to proceedings relating to the SMA that were pending in any court or tribunal before 1 July 1997.

Clause 18 – Pending proceedings––Spectrum Manager a party

Clause 18 provides for the substitution from 1 July 1997 of the ACA or the ACA Chairman for the Spectrum Manager as a party to proceedings that were pending in any court or tribunal before 1 July 1997 (cl. 18(1)).  An example of such a proceeding would be a proceeding brought against the Spectrum Manager, rather than the Commonwealth or the SMA, under the Administrative Appeals Tribunal Act 1975.

If the proceedings relate to a thing done by the Spectrum Manager in the name of, or on behalf of, the SMA, the ACA is, from 1 July 1997, substituted for the Spectrum Manager as a party to the proceedings (cl. 18(2)).

In other proceedings to which the Spectrum Manager was a party and that were pending in any court or tribunal before 1 July 1997, the ACA Chairman is, from 1 July 1997, substituted for the Spectrum Manager as party to the proceedings (cl. 18(3)). 

Clause 19 – Investigations

Clause 19 allows matters that arose before 1 July 1997 to be investigated by the ACA under Part 15 of the current Telecommunications Act as if that Part had not been repealed.  Sections 343 and 344 of that Act will not, however, have any continued operation from 1 July 1997.  

Section 343 of the Telecommunications Act 1991 provides that AUSTEL may, as a result of an investigation, direct a carrier to remedy a breach of a licence condition.  From 1 July 1997, the ACA will be able to give a carrier in breach of a licence condition or a service provider in breach of a service provider rule a remedial direction or a formal warning under proposed ss. 68, 69, 101 and 102 of the Telecommunications Act 1996.

Section 344 of the Telecommunications Act 1991 provides that AUSTEL may direct a carrier to fulfil a prescribed carrier obligation.  As the concept of a prescribed carrier obligation has not been carried across to the proposed Telecommunications Act 1996, a provision based on section 344 is not required.

Clause 20 – Public inquiries

Clause 20 allows public inquiries begun, or required to be begun, by AUSTEL under Part 14 of the current Telecommunications Act before 1 July 1997 to be completed by the ACA under that Part as if it had not been repealed.

Clause 21 – Transfer of Ombudsman investigations

Clause 21 provides for complaints made to the Ombudsman but not finally resolved, or investigations begun by the Ombudsman, before 1 July 1997 in relation to action taken by the SMA, to be dealt with by the Ombudsman from 1 July 1997 as if that action had been taken by the ACA.

Clause 22 – Committees

Section 53 of the Telecommunications Act 1991 allows AUSTEL to establish advisory committees to assist it in performing any of its functions (other than its arbitration functions under Division 5 of Part 8 in relation to terms of access to telecommunications networks and services).  Such advisory committees consist of such persons as AUSTEL appoints from time to time.  AUSTEL may also give such advisory committees written directions as to the way in which they are to carry out their functions and conduct their meetings.

Section 240 of the Radiocommunications Act 1992 allows the SMA to establish committees to assist it in performing any of its functions.  Such committees consist of such persons as the SMA from time to time appoints.  The SMA may also give such advisory committees written directions as to the way in which they are to carry out their functions and conduct their meetings.

Clause 22 provides that any committee established by AUSTEL under 
s. 53 of the Telecommunications Act or by the SMA under s. 240 of the Radiocommunications Act that is in existence immediately before 1 July 1997 will be taken to have been established by the ACA on 1 July 1997 under proposed s. 51 of the Australian Communications Authority Act 1996 (cls. 22(1) and (2)(a)).  (Proposed 
s. 51 allows the ACA to establish advisory committees to assist it in performing any of its functions.)

Each appointment to an existing committee and each direction relating to the way in which the committee is to carry out its functions and conduct its meetings that was in force immediately before 1 July 1997 is taken to have been made or given by the ACA on 1 July 1997 under proposed s. 51 of the ACA Bill (cls. 22(2)(b) and (c)).

In the case of a committee established by AUSTEL under s. 53 of the current Telecommunications Act, a reference in the instrument establishing the committee to AUSTEL is to be taken to be a reference to the ACA (cl. 22(3)).  In the case of a committee established by the SMA under s. 240 of the Radiocommunications Act, a reference in the instrument establishing the committee to the SMA is to be taken to be a reference to the ACA (cl. 22(4)).

The ACA will have to review the existence of any committee whose existence is continued by clause 22 before 30 June 1998 (cl. 22(5)).

Clause 23 – Protected name and protected symbol

Clause 23 provides for the protection given to the AUSTEL name, acronym and symbol under s. 402A of the Telecommunications Act 1991 to continue to apply for 12 months after 1 July 1997 or such longer period (if any) as is specified in the regulations.

The effect of the continued operation of s. 402A is as follows:

•	Unless the ACA agrees in writing, a person will not be permitted to use the name ‘Australian Telecommunications Authority’ or the acronym ‘AUSTEL’ or a closely similar name or acronym in trade or commerce or as part of the name of any firm, body, premises, vehicle, ship or craft, including aircraft.  A similar prohibition will apply to the use of the official symbol of AUSTEL, the design of which will be set out in the regulations (TA ss. 402A(1) and (6)).

•	An individual who intentionally or recklessly contravenes this prohibition will be guilty of an offence punishable on conviction by a fine not exceeding 30 penalty units or, in the case of a body corporate, by a fine not exceeding 150 penalty units (s. 402A(1) and s. 4B(3) of the Crimes Act 1914).

•	Nothing in s. 402A(1) will limit anything else in that subsection (s. 402A(2)).

•	The prohibition in s. 402A(1) will not affect rights in relation to AUSTEL’s name, acronym or symbol conferred by a trade mark or design registered immediately before 26 June 1992 (s. 402A(3)).

•	Nothing in s. 402A will affect a person’s legal rights to use the AUSTEL name, acronym or symbol in a particular manner if immediately before 26 June 1992 the person:

	–	was using the name, acronym or the symbol in good faith in that 	manner; or

	–	would have been entitled to take action to prevent another 				person from passing off goods or services as the goods or 				services of the first-mentioned person (s. 402A(4)).

•	The prohibition in s. 402A will not apply to a person who uses or applies the AUSTEL name, acronym or symbol for the purpose of labelling customer equipment in accordance with a permit in force under TA s. 258(1) (s. 402A(5)).

Clause 24 – Annual report

Clause 24 requires the ACA, as soon as practicable after 1 July 1997, to prepare and give to the Minister a report of the SMA’s operations during the financial year ending on 30 June 1997.  The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of the House after the Minister received the report.

As a result of s. 63CA of the Audit Act 1901, the ACA will be subject to Division 2 of Part XI of the Audit Act.  This will require the ACA, among other things, to prepare an annual report of the ACA’s operations and submit it to the Minister together with audited financial statements.  The Minister will be required to have copies of the annual report and financial statements, together with the Auditor-General’s report, laid before each House of the Parliament within 15 sitting days of that House after their receipt by the Minister.

Clause 25 – Delegation

The Minister will be able to delegate, in writing, all or any of his or her powers under Division 1 of Part 3 to the Secretary, or an SES officer, in the Department (currently the Department of Communications and the Arts – see Acts Interpretation Act 1901, 
s. 19A).  The delegate will exercise these powers subject to the Minister’s directions (cl. 25).

Division 2––Transitional provisions relating to the transfer of 
competition policy resources from AUSTEL to the ACCC

Clause 26 – Definitions

Clause 26 sets out the definitions of key terms used in Division 2 of Part 3.

Clause 27 – Transfer of AUSTEL assets

Clause 27 is intended to deal with the transfer from AUSTEL to the Commonwealth of assets devoted to the performance of AUSTEL’s competition policy functions 
(cl. 27(1)).  Although the ACCC has the ability to hold assets in its own name (see 
s. 6A(2)(c) of the TPA) it does not in fact do so.  Rather it uses Commonwealth assets in the performance of its functions.  Clause 27 does not, therefore, deal with the transfer of specified AUSTEL assets to the ACCC direct but rather with the transfer of these assets to the Commonwealth for the ACCC’s purposes.

The term ‘asset’ is defined widely in cl. 26 to mean any legal or equitable estate or interest in real or personal property, whether actual, contingent or prospective, and any right, power, privilege and immunity, whether actual, contingent or prospective.

The Minister will be empowered to arrange for the transfer to the Commonwealth of any of AUSTEL’s assets that the Minister considers appropriate to be transferred to the Commonwealth for purposes connected with the performance and exercise of the ACCC’s telecommunications functions and powers (cl. 27(2)).  The ACCC’s telecommunications functions and powers will have the same meaning as in cl. 8 of the Telecommunications Bill 1996 (cl. 27(6)) and will mean the functions and powers conferred on the ACCC by or under:

•	the proposed Telecommunications Act 1996 (such as Part 20 which provides that the ACCC has the general administration of Rules of Conduct about dealings with international telecommunications operators);

•	the Telstra Corporation Act 1991 (from 1 July 1997, the ACCC will have responsibility for administering Part 6 of that Act dealing with Telstra’s charges)

•	Part XIB of the TPA, which sets up a special regime for regulating anti-competitive conduct in the telecommunications industry;

•	Part XIC of the TPA, which sets out a telecommunications access regime; and

•	any other provision of the TPA, in so far as that provision applies to a matter connected with telecommunications – for this purpose ‘telecommunications’ means the carriage of communications by means of guided and/or unguided electromagnetic energy.

The Minister will also be empowered to declare that a specified instrument (such as a written agreement) relating to any such asset continues to have effect after the asset vests in the Commonwealth as if a reference in the instrument to AUSTEL were a reference to the Commonwealth – the effect of this will be to ensure that any rights or obligations under an instrument relating to AUSTEL will become rights or obligations of the Commonwealth from 1 July 1997 (cls. 27(4) and (5)).

Assets will also be able to be transferred to from AUSTEL to the Commonwealth by other means (such as by a deed of conveyance, assignment or transfer) (cl. 27(3)).

The transfer to the ACCC of staff members of AUSTEL devoted to competition policy matters will be dealt with under s. 29 of the Public Service Act 1922.

Clause 28 – Re-transfer of assets

The purpose of cl. 28 is to allow the correction of any errors in the transfer to the Commonwealth under cl. 27 of AUSTEL assets to be used by the ACCC (cl. 28(1)).

This correction will be effected by way of one or more of the following Ministerial declarations:

•	a declaration that a specified asset vests in the ACA at a specified time before 1 January 1998 without any conveyance, transfer or assignment;

•	a declaration that a specified instrument (such as a written agreement) relating to a specified asset continues to have effect after the asset vests in the ACA as if a reference in the instrument to the Commonwealth were a reference to the ACA – the effect of this will be to ensure that any rights or obligations under an instrument relating to the Commonwealth will become rights or obligations of the ACA from a date before 1 January 1998 specified in the declaration;

•	a declaration that the ACA becomes the Commonwealth’s successor in law in relation to a specified asset immediately after the asset vests in the ACA  (cls. 28(2), (3) and (4)).

Clause 29 – Transfer of AUSTEL liabilities

Clause 29 is intended to deal with the transfer from AUSTEL to the Commonwealth of liabilities related to the performance of AUSTEL’s competition policy functions 
(cl. 29(1)).  The transfer is from AUSTEL to the Commonwealth rather than from AUSTEL to the ACCC because the ACCC does not incur liabilities in its own name.  Any liabilities relating to the ACCC are incurred in the name of the Commonwealth.

‘Liability’ is defined widely in cl. 26 to include any liability, duty or obligation, whether actual, contingent or prospective.

A transfer to the Commonwealth of a liability of AUSTEL will be effected by way of one or more of the following Ministerial declarations:

•	a declaration that a specified liability ceases to be a liability of AUSTEL and becomes a liability of the Commonwealth as at 1 July 1997;

•	a declaration that a specified instrument (such as a written agreement) relating to a specified liability continues to have effect after the liability becomes a liability of the Commonwealth as if a reference in the instrument to AUSTEL were a reference to the Commonwealth – the effect of this will be to ensure that any obligations under an instrument relating to AUSTEL will become obligations of the Commonwealth from 1 July 1997;

•	a declaration that the Commonwealth becomes AUSTEL’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the Commonwealth (cls. 29(2) and (3) and cl. 26, definition of ‘merging time’).

Clause 30 – Re-transfer of liabilities

The purpose of cl. 30 is to allow the correction of any errors in the transfer to the Commonwealth under cl. 29 of liabilities relating to the performance of AUSTEL’s competition policy functions (cl. 30(1)).  

This correction will be effected by way of one or more of the following Ministerial declarations:

•	a declaration that a specified liability ceases to be a liability of the Commonwealth and becomes a liability of the ACA at a specified time before 1 January 1998;

•	a declaration that a specified instrument (such as a written agreement) relating to a specified liability continues to have effect after the liability becomes a liability of the ACA as if a reference in the instrument to the Commonwealth were a reference to the ACA – the effect of this will be to ensure that any obligations under an instrument relating to the Commonwealth will become obligations of the ACA from a date before 1 January 1998 specified in the declaration;

•	a declaration that the ACA becomes the Commonwealth’s successor in law in relation to a specified liability immediately after the liability becomes a liability of the ACA  (cls. 30(2), (3) and (4)).

Clause 31 – Transfers of land may be registered

Clause 31 provides for a simplified land registration procedure in connection with the re-transfer to the ACA of liabilities in connection with land used by AUSTEL in connection with its competition policy functions under cl. 28.

This procedure is as follows:

•	The Minister signs a certificate identifying the land and stating that a right, title or interest in the land has become vested in the ACA under cl. 28.

•	The certificate is lodged with a relevant State or Territory land registration official.

•	The land registration official may register the matter in the same way as, or in a way similar to the way that, other dealings in land of that kind are registered and may deal with and give effect to the Minister’s certificate (cls. 31(1) and (2)).

A document that appears to be the Minister’s certificate is to be taken to be such a certificate, and to have been properly given, unless the contrary is established (cl. 31(3)).

Clause 32 – This Division does not modify registers kept by land registration officials

The effect of cl. 32 is that the provisions in Division 2 of Part 3 modifying references in documents to ‘AUSTEL’ and ‘the Commonwealth’ respectively to references to ‘the Commonwealth’ and ‘the ACA’ respectively do not result in any modification to a land titles register.

Clause 33 – Exemption from stamp duty and other taxes

Stamp duty and other State or Territory taxes will not be payable in respect of the transfer of an asset or liability under Division 2 of Part 3 or anything done in connection with such a transfer (cl. 33).

Clause 34 – Lands Acquisition Act does not apply to this Division

Clause 34 provides that the Lands Acquisition Act 1989 (setting out procedures relating to the acquisition of land by the Commonwealth and certain Commonwealth authorities and dealings with land so acquired) does not apply to anything done under Division 2 of Part 3 in connection with the transfer to the Commonwealth of land used by AUSTEL in connection with its competition policy functions or the re-transfer of that land to the ACA under Division 2 of Part 3 of the Bill.

Clause 35 – Delegation

The Minister will be able to delegate, in writing, all or any of his or her powers under Division 2 of Part 3 to the Secretary, or an SES officer, in the Department (currently the Department of Communications and the Arts – see Acts Interpretation Act 1901, 
s. 19A).  The delegate will exercise these powers subject to the Minister’s directions 
(cl. 35).

Division 3––Transitional provisions relating to
the telecommunications access regime

Clause 36 – Modified application of Part XIC of the Trade Practices Act 1974 before 1 July 1997

Before 1 July 1997, Part XIC of the TPA will have effect as if references to carriers were references to a carrier within the meaning of the Telecommunications Act 1991 and the reference to a carrier in cl. 86 of the Telecommunications Bill 1996 were a reference to a carrier within the meaning of the Telecommunications Act 1991.

Clause 37 – Phase-out of arbitrations under section 154 of the Telecommunications Act 1991

If AUSTEL is satisfied that a matter which has been submitted for arbitration under the access arbitration provisions in s. 154 of the Telecommunications Act 1991 could be notified under proposed s. 152CM of the arbitration provisions in proposed Part XIC of the TPA, then AUSTEL will be able to terminate the arbitration or refuse to conduct the arbitration.

Clause 38 – Recognition of pre-1 July 1997 consultations by the Telecommunications Access Forum

If a body or association is declared to be the Telecommunications Access Forum by the ACCC under proposed s. 152AI of the TPA within 28 days of the commencement of 
cl. 38 of the Bill, and that body undertook consultation regarding a draft code with persons who are likely to become access seekers or consumer representatives before the declaration and in a manner which would comply with the requirements of proposed 
ss. 152BF(a) and (b) of the TPA, then the body or association is taken to have complied with those provisions.

Clause 39 – Services covered by pre-commencement access agreements

The ACCC will be required, in consultation with AUSTEL, to prepare a statement specifying carriage services and services which facilitate the supply of carriage services which will be deemed as declared services for the purposes of the telecommunications access regime.  The statement of services will draw on those contained in access agreements between the three existing carriers registered under s. 144 of the Telecommunications Act 1991 as at 13 September 1996. (cl. 39(1))

If, however, the ACCC is satisfied that specifying a particular service will not be in the long-term interests of end-users of the service or of services supplied by means of the service, then the ACCC will not be required to include the service in its statement 
(cl. 39(2)).  The question whether a particular thing promotes the long-term interests of end-users is to be determined in accordance with the test set out in proposed s. 152AB of the TPA (cl. 39(3)).

Despite the general obligation, the ACCC must not specify a service if it is supplied by means of an AMPS network and the ACCC is satisfied that the specification of the service would be inconsistent with the AMPS phaseout policy contained in Part 19 of the Telecommunications Bill 1996 (cl. 39(4)).  This provision is intended to enable the ACCC to have regard to whether the interests of end-users are promoted by the provision of regulated access (and thus increased competition) to services which Government policy proposes should be phased out over the next few years.  Determination of whether the AMPS phaseout arrangements should have any impact at all on the inclusion of AMPS services in the statement can only be considered having regard to the services in existing access agreements.

In addition to the general obligation, the ACCC must also specify in the statement an eligible service that is necessary for the purposes of enabling the supply of a broadcasting service by means of line links and was of a kind that was used for those purposes on 13 September 1996 (cl. 39(5)).  This is intended to require the ACCC to include in its statement, and thus provide regulated access under Part XIC to, a service for the carriage of broadcasting (particularly, subscription television broadcasting services) over cable networks generally.  Reference to 13 September 1996 is to the date of the release of the exposure draft of the access legislation and is primarily intended to direct the ACCC’s attention to services currently being used to supply broadcasting services over cable based networks.  Reference to ‘of a kind’ is intended to avoid suggestions that the declaration should be, for example, restricted only to service providers operating on 13 September 1996 or to the particular geographical regions in which they were operating on that date.

In addition to the general obligation, if an access agreement is registered under s. 144 of the Telecommunications Act 1991 (whether it be an entirely new agreement or a variation of an existing agreement as envisaged by s. 153 of that Act), then the ACCC may also specify in the statement an eligible service covered by the access agreement (cl. 39(6)).

Subclauses 39(7) and (8) require the ACCC to consult AUSTEL and publish the draft statement, invite submissions and consider any submissions received in its preparation  (or variations to the statement by reason, for example, of the circumstance described in subclause (6)).

A copy of the ACCC’s statement, and of any variation of the statement, is to be published in the Commonwealth Gazette (cl. 39(9)).

The telecommunications access regime in proposed Part XIC of the TPA, contained in the Trade Practices Amendment (Telecommunications) Bill 1996, will have effect as if the ACCC had made an instrument declaring the services specified in the statement under proposed s. 152AL(3) of the TPA and complied with the requirements of that subclause in relation to the instrument (cl. 39(10)).

Services which have been declared by means of this deeming provision will be able to be varied or revoked in accordance with the normal procedures detailed in proposed 
s. 152AO of TPA (cl. 39(11)).

The ACCC will be entitled to inspect, make copies of, or take extracts from, any part of the register of access agreements kept under s. 144 of the Telecommunications Act 1991 for a purpose relating to the exercise of its powers under this provision (cl. 39(12)).

Clause 40 – Certain mobile services supplied by Telstra

Before 1 January 2000, in determining for the purposes of the telecommunications access regime in proposed Part XIC of the TPA whether a standard access obligation is imposed on Telstra where a person requesting a service was a holder of a public mobile licence immediately before 1 July 1997, the Part has effect as if any eligible service which Telstra was obliged to supply to those persons by clause 4.1 of its public mobile licence were a declared service.

This provision is intended to give assurance to existing public mobile licence holders of their continued rights to receive AMPS air-time from Telstra as required by its public mobile licence.  This clause does not prevent the inclusion of the same or similar services in the ACCC’s statement made under cl. 39 of this Bill or a declaration at any future date under proposed s. 152AL of the TPA.

Clause 41 – Registration of pre-commencement access agreements

Access agreements between carriers registered under s. 144 of the Telecommunications Act 1991 immediately before 1 July 1997 will be deemed to have been registered with the ACCC under the proposed new access regime arrangements under Division 6 of Part XIC of the TPA (cls. 41(1) and (2)).  They will therefore be enforceable as though they were a determination by the ACCC under the new access regime (see proposed s. 152EE of TPA).

The continuity of these agreements will not be affected by the repeal of the Telecommunications Act 1991 (cl. 41(3)).

Nothing in cl. 41 will prevent the parties to these agreements from varying or terminating the agreements (cl. 41(4)).

The immunity those agreements currently enjoy from application of Part IV of the TPA will continue initially until 31 December 1997, although the ACCC will be able to extend that protection for periods of up to 90 days if renegotiations or arbitration procedures have not been completed (cls. 41(5), (6) and (7)).  This will provide a period of grace during which the parties to the agreement can ensure it is consistent with Part IV of the TPA or otherwise obtain an authorisation under Part VII of that Act.

Clause 42 – Pre-1 July 1997 operation of the telecommunications access regime – references to the ACA to be read as references to AUSTEL

Before 1 July 1997, any reference in Part XIC of the Trade Practices Amendment (Telecommunications) Bill 1996 will have effect as if it were a reference to AUSTEL.  Anything done by, or in relation to, AUSTEL under that Part before 1 July 1997 is to be considered to have been done by, or in relation to, the ACA from that date.

Division 4––Transitional provisions relating to carrier licences

Clause 43 – Definitions

Clause 43 defines ‘ACA’ and ‘AUSTEL’ for the purposes of Division 4 of Part 3.

Clause 44 – Replacement of existing carrier licences

Persons holding carrier licences under the Telecommunications Act 1991 as at 4 June 1997 will be deemed to have been granted a carrier licence under the proposed Telecommunications Act 1996 on 1 July 1997 (cls. 44(1) and (2)).  This will not, however, prevent the ACA from cancelling the licence in accordance with proposed 
s. 71 of the Telecommunications Act 1996 (eg. for failing to pay the annual carrier licence charge or the universal service levy (cl. 44(3)).

From 5–30 June 1997 inclusive, the Minister will be able to make carrier licence conditions in relation to each existing carrier’s new licence without the new (30 day) formal consultation requirements applying (cls. 44(4) and (6)).  As soon as practicable after the Minister does so, and before 1 July 1997, the Minister will be required to give the carrier a copy of the instrument imposing, varying or revoking the licence conditions (cl. 44(5)).

From 5–30 June 1997 inclusive, an existing carrier will be able to apply to AUSTEL for a nominated carrier declaration in relation to a specified network unit (cls. 44(7) and (8)). (Under Division 4 of Part 2 of the Telecommunications Bill 1996, a carrier will be able to apply for a nominated carrier declaration where the owner or owners of a network unit wish to allow the unit to be used to supply carriage services to the public, but:

•	do not wish to be bound by the carrier obligations; and

•	the carrier is willing to accept responsibility for those obligations.

Clause 45 – AUSTEL may receive applications for carrier licences before 1 July 1997

AUSTEL will be able to receive applications for carrier licences from 5–30 June inclusive (cl. 45).  It is intended that the decision whether or not to grant such a licence would be made by the ACA on or after 1 July 1997.

Clause 46 – Acts of AUSTEL to be attributed to ACA

Anything done by, or in relation to, AUSTEL under the proposed Telecommunications Act 1996 before 1 July 1997 (such as the receipt of an application for a carrier licence or the making of a nominated carrier declaration) will be deemed to have been done by, or in relation to the ACA (cl. 46).

Division 5––Transitional provisions relating to technical standards
under section 244 of the Telecommunications Act 1991

Clause 47 – Technical standards to continue in force as industry standards

Under s. 244 of the Telecommunications Act 1991, the Minister may direct AUSTEL to determine a technical standard about network matters and AUSTEL is required to comply with such a direction.

Any technical standard in force under s. 244 on 30 June 1997 will have effect from 1 July 1997 as if it were an industry standard determined by the ACA under cl. 121 of the Telecommunications Bill 1996 and as if the ACA had consulted with the relevant section of the telecommunications industry, members of the public, the ACCC, the TIO and the Privacy Commissioner as required by cls. 121(1) and (3), 129, 130 and 131 of that Bill (cls. 47(1) and (2)).

This does not, however, prevent the deemed industry standard from being varied or revoked in accordance with cls. 127 or 128 of the Telecommunications Bill 1996 
(cl. 47(3)).

Division 6––Transitional provisions relating to 
indicative performance standards

Clause 48 – Indicative performance standards to continue in force

Paragraph 38(2)(b) of the Telecommunications Act 1991 provides that AUSTEL’s functions include developing indicative performance standards relating to: the quality of standard telephone services that carriers supply to consumers; goods and services that carriers supply to consumers in connection with supplying standard telephone services to them: and other telecommunications services in relation to which AUSTEL thinks it appropriate to develop such standards.  Paragraph 38(2)(c) requires AUSTEL to monitor and report to the Minister on the performance of carriers and others in meeting these indicative performance standards.

The ACA will be required to monitor and report to the Minister on the performance of carriers and others in meeting any indicative performance standard in force under paragraph 38(2)(b) of the Telecommunications Act 1991 on 30 June (cl. 48(1) and (2)).  This obligation will cease if an industry code is registered, or an industry standard is determined, under Part 6 of the Telecommunications Bill 1996 and is expressed to replace the indicative performance standard under paragraph 38(2)(b) (cl. 48(3)). 

Division 7––Transitional provisions relating to the universal service regime

Subdivision A––Certain instruments to continue in force

Clause 49 – Universal service obligation––payphones at specified locations

Subsection 288(1) of the Telecommunications Act 1991 provides that the universal service obligation is the obligation:

(a)	to ensure that the standard telephone service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

(b)	to supply the standard telephone service to all people in Australia; and

(c)	to ensure that payphones are reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business; and

(d)	to supply, install and maintain payphones in Australia.

Subsections 288(2) and (3) of the Telecommunications Act 1991 empower the Minister to determine, by notice in the Commonwealth Gazette, that it is part of the universal service obligation to supply, install and maintain payphones at specified locations in Australia.  The Minister will have similar power under cls. 144(3) and (4) of the Telecommunications Bill 1996.

Any determination made by the Minister under s. 288(2) of the Telecommunications Act 1991 will have effect under the proposed Telecommunications Act 1996 as if it had been made under cl. 144(3) on 1 July 1997 and as if it had been gazetted as required by cl. 144(4) of that Bill (cl. 49(2)).

Clause 50 – National universal service provider

Under s. 290(1) of the Telecommunications Act 1991, the Minister may declare a carrier to be the universal carrier for Australia.

Clause 50 provides that any such declaration in force immediately before 1 July 1997 will have effect as if it were a declaration made immediately before 1 July 1997 under proposed s. 145(1) of the Telecommunications Act 1996 stating that the person is the national universal service provider 

Clause 51 – Regional universal service provider

Under s. 290(2) of the Telecommunications Act 1991, the Minister may declare a carrier to be the universal service carrier for a specified service area.

Clause 51 provides that any such declaration in force immediately before 1 July 1997 will have effect as if it were a declaration made immediately before 1 July 1997 under proposed s. 145(2) of the Telecommunications Act 1996 stating that the person is the regional universal service provider for that area.

Clause 52 – Directions about declaring net cost areas

Under s. 295 of the Telecommunications Act 1991, the Minister may give AUSTEL directions about the criteria it should apply or the matters to which it should have regard in deciding whether or not to declare an area as a net cost area for a financial year.

Clause 52 provides that the proposed Telecommunications Act 1996 has effect, in relation to a direction made under s. 295 of the Telecommunications Act 1991 and in force immediately before 1 July 1997 as if the direction had been given to the ACA under proposed s. 173 of the proposed Telecommunications Act 1996 (which is based on s. 295 of the Telecommunications Act 1991) at the beginning of 1 July 1997.

Clause 53 – Determinations about working out net universal service costs

Under s. 302 of the Telecommunications Act 1991, AUSTEL may make written determinations about working out a carrier’s net universal service cost.  In particular, AUSTEL may make determinations in relation to determining the amount referred to in  certain paragraphs of the definition of ‘avoidable costs’ and in the definition of ‘revenue forgone’ in s. 301(2) of that Act.

Clause 53 provides that the Telecommunications Act 1996 will have effect in relation to a determination in force under s. 302 of the Telecommunications Act 1991 immediately before 1 July 1997 as if:

•	the determination had been made under s. 180 of the proposed Telecommunications Act 1996 (which deals with ACA determinations about working out a universal service provider’s net universal service cost) at the beginning of 1 July 1997;

•	each reference in the determination to s. 302(2) of the Telecommunications Act 1991 were a reference to s. 177(2) of the proposed Telecommunications Act 1996 (which deals with the meaning of ‘avoidable costs’ and ‘revenue forgone’); and

•	the requirements of proposed ss. 180(2) and (3) of the proposed Telecommunications Act 1996 (which provide that the determination is a disallowable instrument and may only be made with the Minister’s consent and following consultation with participating carriers) had been satisfied.

Clause 54 – Revocation and variation of instruments

Nothing in Subdivision A of Division 7 will prevent the revocation or variation of an instrument of a kind dealt with in that Subdivision.
	
Subdivision B––Phase-out of former universal service regime

Clause 55 – Phase-out of former universal service regime

Notwithstanding the repeal of the current Telecommunications Act by Schedule 5 to the Bill, Part 13 of that Act, dealing with the assessment, collection and distribution of the universal service levy, will continue to apply on and after 1 July 1997 in relation to:

•	levy, and levy debit balances, in relation to the current and previous financial years; and

•	payments under s. 325 of that Act, dealing with levy distribution to participating carriers, and levy credit balances, in relation to the current and previous financial years; 

as if the current Telecommunications Act had not been repealed, each reference in Part 13 of that Act to AUSTEL were a reference to the ACA and a general telecommunications licence or a public mobile licence in force under that Act as at the end of 30 June 1997 had remained in force after 30 June 1997 (cl. 55(1)).

The repeal of the Telecommunications (Universal Service Levy) Act 1991 by Schedule 5 to the Bill will not affect the application of that Act to:

•	levy and levy debit balances in relation to the current and previous financial years; and

•	a declaration under s. 4(1) of that Act (that a specified carrier is a participating carrier) that was in force at any time before 1 July 1997 (cl. 55(2)).

Subdivision C––The Universal Service Fund and the Universal Service Reserve

Section 322 of the Telecommunications Act 1991 establishes an account called the Universal Service Fund, which is a trust account for the purposes of s. 62A of the Audit Act 1901 and is currently administered by the Department of Communications and the Arts.  Among other things, amounts of levy paid under Part 13 of the Telecommunications Act 1991 are paid into this Fund.  Clause 202 of the proposed Telecommunications Act 1996 establishes the same account as the Universal Service Reserve. 

The Financial Management and Accountability Bill 1996 (‘FMA Bill’) is one of a package of 3 Bills that are intended to replace the Audit Act 1901.  The FMA Bill is concerned with the regulatory/accounting/accountability framework for dealing with and managing the money and property of the Commonwealth.  Under the FMA Bill, the Universal Service Reserve will become part of the Reserved Money Fund.

Clause 56 – Transition from the Universal Service Fund to the Universal Service Reserve in a case where the Financial Management and Accountability Act 1996 commences on 1 July 1997

If the FMA Bill is passed and commences on 1 July 1997, money in the Universal Fund established under s. 322 of the Telecommunications Act 1991 immediately before 1 July 1997 will be required to be transferred to the Universal Service Reserve referred to in 
cl. 202 of the Telecommunications Bill 1996 on 1 July 1997 (cls. 56(1) and (2)).

Subdivision B of Division 7 continues the operation of Part 13 of the current Telecommunications Act, dealing with the assessment, collection and distribution of the universal service levy, on and after 1 July 1997, for certain purposes.  The effect of 
cl. 56(3) is that for the purpose of this continued operation:

•	the Universal Service Fund established under s. 322 of the current Act is to be treated as if it were the Universal Service Reserve established under cl. 202 of the Telecommunications Bill 1996;

•	amounts equal to amounts of universal service levy and amounts equal to interest from money in the Universal Service Fund paid into the Consolidated Revenue Fund are to be transferred to the Universal Service Reserve;

•	s. 324 of the current Act, dealing with the purposes of the Universal Service Fund, is to treated as if it dealt with the purposes of the Universal Service Reserve; and

•	for the purposes of s. 325 of that Act, where a participating carrier has a levy credit balance for a financial year, an amount equal to the amount of that balance is payable to the carrier out of the Universal Service Reserve.

On and after 1 July 1997, a reference in an instrument to the Universal Service Reserve is to be read as including a reference to the Universal Service Fund, unless the context otherwise requires (cl. 56(4)).

The Trust Fund established under the Audit Act 1901 is appropriated for the purposes of cl. 56 (cl. 56(5)).  (The Trust Fund is the accounting category of moneys earmarked for specific future spending purposes.)

The Consolidated Revenue Fund is appropriated for the purposes of s. 323 of the Telecommunications Act 1991 (which, as modified by cl. 56, deals with payments into the Universal Service Reserve).

Clause 57 – Transitional provisions that apply in a case where the Financial Management and Accountability Act 1996 commences after 1 July 1997

If the FMA Bill is passed and commences after 1 July 1997, during the period beginning on 1 July 1997 and ending when the FMA Bill commences, the Universal Service Reserve established by cl. 202 of the Telecommunications Bill 1996 will be treated as a continuation of the Universal Service Fund established under s. 322 of the current Telecommunications Act (cls. 57(1) and (2)).

Subdivision B of Division 7 continues the operation of Part 13 of the current Telecommunications Act, dealing with the assessment, collection and distribution of the universal service levy, on and after 1 July 1997, for certain purposes.  The effect of 
cl. 57(3) is that for the purpose of this continued operation after the commencement of the FMA Bill:

•	the Universal Service Fund established under s. 322 of the current Act is to be treated as if it were the Universal Service Reserve established under cl. 202 of the Telecommunications Bill 1996;

•	amounts equal to amounts of universal service levy and amounts equal to interest from money in the Universal Service Fund paid into the Consolidated Revenue Fund are to be transferred to the Universal Service Reserve;

•	s. 324 of the current Act, dealing with the purposes of the Universal Service Fund, is to treated as if it dealt with the purposes of the Universal Service Reserve; and

•	for the purposes of s. 325 of that Act, where a participating carrier has a levy credit balance for a financial year, an amount equal to the amount of that balance is payable to the carrier out of the Universal Service Reserve.

Money in the Universal Service Reserve established by cl. 202 of the Telecommunications Bill 1996 immediately before the commencement of the FMA Bill will be required to be transferred to the new Universal Service Reserve (being part of the Reserved Money Fund under the FMA Bill) immediately after that time (cl. 57(4)).

After the commencement of the FMA Bill, a reference in an instrument to the new Universal Service Reserve (being part of the Reserved Money Fund under the FMA Bill) is to be read as including a reference to the old Universal Service Reserve (established under cl. 202 of the Telecommunications Bill), unless the context otherwise requires (cl. 57(5)).

The Trust Fund established under the Audit Act 1901 is appropriated for the purposes of cl. 57 (cl. 57(6)).  (The Trust Fund is the accounting category of moneys earmarked for specific future spending purposes.)

The Consolidated Revenue Fund is appropriated for the purposes of s. 323 of the Telecommunications Act 1991 (which, as modified by cl. 57, deals with payments into the Universal Service Reserve).

Division 8––Transitional provisions relating to the 
chart of accounts and the cost allocation manual

Clause 58 – Chart of accounts and cost allocation manual to remain binding until record-keeping rules made

Under s. 80 of the current Telecommunications Act, AUSTEL is required to develop a chart of accounts and a cost allocation manual for use by the carriers.  The chart or manual is binding on a carrier from either the day when a copy of it is received by the carrier or the day specified in the chart or manual as its day of effect, whichever is the later (s. 81).  AUSTEL may declare that the chart or manual is binding on a particular carrier with certain modifications (s. 82).  A carrier is required to keep books and records in accordance with the chart and manual (s. 83).  AUSTEL is able to give directions to carrier about how the carrier is to comply with its obligations under s. 83 
(s. 85).  The obligations of a carrier under s. 83 are additional to, and do not derogate from, obligations imposed by or under any other law such as the Income Tax Assessment Act 1936 or the Corporations Law (s. 87).

Sections 80, 81, 82 and 83 of the current Telecommunications Act and ss. 85 and 87 of that Act, in so far as they relate to s. 83, are referred to in cl. 58(6) as the COACAM provisions.  From 1 July 1997 until the ACCC first makes record-keeping rules under proposed s. 151BU of the TPA, the COACAM provisions will continue to apply in relation to an existing carrier as if they had not been repealed by Schedule 5 to the Bill, as if each reference in the COACAM provisions to AUSTEL were a reference to the ACCC and each reference in those provisions to a carrier (within the meaning of the current Telecommunications Act) were a reference to a carrier within the meaning of the proposed Telecommunications Act 1996 (cl. 58(1) and (2)).

Anything done by AUSTEL in relation to an existing carrier under the COACAM provisions before 1 July 1997 will have effect, during the period from 1 July 1997 and ending when the ACCC makes record-keeping rules, as if the thing had been done by the ACCC (cl. 58(3)).

An existing carrier will be required to comply with the COACAM provisions during the period from 1 July 1997 and ending when the ACCC first makes record-keeping rules as if those provisions were sections of the proposed Telecommunications Act 1996.  Failure to comply with those provisions will amount to a breach of a carrier licence condition for the purposes of that Act (cl. 58(4)).

The powers under ss. 80(2) and 82 of the current Telecommunications Act to revise the chart of accounts or cost allocation manual, or to declare the chart or manual to be binding on a particular carrier with such modifications as the declaration specifies, will not be able to be exercised in relation to an existing carrier during the period from 1 July 1997 and ending when the ACCC first makes record-keeping rules (cl. 58(5)).

Division 9––Transitional provisions relating to the 
international aspects of carriers’ activities

Clause 59 – INTELSAT and Inmarsat––policy notifications and directions to continue in force

Under s. 74 of the current Telecommunications Act, the Minister may notify a carrier that is a Signatory to the INTELSAT Agreement or that is a Signatory to the Convention on the International Maritime Satellite Organization (Inmarsat) of the general policies of the Commonwealth Government that are to apply in relation to the carrier’s performance of its functions as a Signatory.  The Minister may also give the carrier such directions as he or she thinks necessary in order to give effect to these policies.  It is a carrier licence condition that the carrier must perform its functions as Signatory in a way that is consistent with such Ministerial notifications or directions.

Notwithstanding the repeal of the current Telecommunications Act by Schedule 5 to the Bill, a notification or direction given under s. 74 of the current Act that is in force on 30 June 1997 will continue to apply to an existing carrier that is a Signatory to INTELSAT or Inmarsat during the period beginning on 1 July 1997 and ending on the first occasion when the Minister gives a direction to a Signatory under cl. 350 of the Telecommunications Bill 1996 (which is based on s. 74 of the current Act).

Division 10––Transitional provisions relating to cabling and customer equipment

This Division provides for the continued effect of certain provisions of the Telecommunications Act 1991 (the 1991 Act) relating to customer equipment and cabling connection orders, connection permits, cabling licences, and declarations about application of cabling provisions.

Clause 60 – Continued effect of orders relating to the connection of customer equipment and customer cabling

Subsection 281(6) of the 1991 Act allows AUSTEL to issue an order requiring a carrier to provide a service necessary for the connection of customer equipment or cabling to the carrier’s network, where AUSTEL is satisfied that such a connection would not be a threat to the safety of a person or of the proper functioning of the network.  Such an order is usually applied for when a carrier disconnects a person’s equipment or cabling.

Subsection 282(1) of the 1991 Act allows an order under s. 281(6) to include a direction that the carrier pay compensation to the applicant for the order, where AUSTEL is satisfied the applicant suffered a loss as a result of the disconnection.

Clause 60 applies to a person who was a carrier immediately before 1 July 1997, and any such order or direction (with which the carrier has not yet complied) made before that date applies to that carrier (cl. 60(1)).

Subclause 60(2) provides that any such order or direction continues to have effect despite the repeal of the 1991 Act.

Subclause 60(3) provides that after 30 June 1997, the carrier continues to be required to comply with the order or direction.

Subclause 60(4) provides that the carrier licence condition, specified in Part 1 of Schedule 1 to the proposed Telecommunications Act 1996  which requires a carrier to comply with that Act, applies to this clause as if it were a provision of that Act.

Subclause 60(5) makes it clear that after 30 June 1997, the ACA may revoke or vary any such order or direction by virtue of s.33 of the Acts Interpretation Act 1901.

Subclause 60(6) defines the meaning of ‘ACA’.

Clause 61 – Continued effect of cabling licences

Section 271 of the 1991 Act allows AUSTEL to issue cabling licences that authorise a person to perform cabling work in relation to types of customer cabling.  AUSTEL may also impose conditions on those licences.

Clause 61 applies to all such licences that were in force immediately before 1 July 1997 (cl. 61(1)).

Subclause 61(2) continues the effect of all such licences from 1 July 1997 as if they were licences issued by the ACA under proposed s. 411 of the Telecommunications Act 1996 authorising any type of cabling work determined by the ACA for the purposes of Division 9 of Part 21 of that Act which is a kind of cabling work to which the former licence related.  All conditions applying to such licences also continue to apply as if they were conditions imposed under proposed s. 416 of that Act (cl. 61(2)(c)).  The requirements under proposed s. 411 in relation to the issuing of licences are deemed to have been complied with (cl. 61(2)(d)).

Subclause 61(3) makes it clear that the ACA may exercise the powers under proposed ss. 421, 422 and 416 of the Telecommunications Act 1996 respectively to suspend or cancel such licences or change the conditions applying to the licences.

Subclause 61(4) carries over the original period specified in those licences as if they were periods specified under proposed s. 415 of the Telecommunications Act 1996.

Clause 62 – Declarations about application of cabling provisions

Section 280 allows AUSTEL to limit the application of the cabling licence provisions in Division 7 of Part 12 of the 1991 Act in relation to specified kinds of customer cabling.

Clause 62 applies to such declarations that were in force immediately before 1 July 1997 (cl. 62(1)).  

Subclause 62(2) continues the effect of all such declarations from 1 July 1997 as if they were declarations made by the ACA under proposed s. 423(1) of the Telecommunications Act 1996.

Subclause 62(3) makes it clear that after 30 June 1997, the ACA may revoke or vary any such declaration by virtue of s.33 of the Acts Interpretation Act 1901.

Division 11––Transitional provisions relating to the 
protection of the confidentiality of communications

This Division provides for the continued protection of information, concerning an individual’s personal particulars or that relates to the contents of a communication carried over a telecommunications network, that came into another person’s knowledge or possession before 1 July 1997.  Such information is currently protected under s. 88 of the Telecommunications Act 1991 (the 1991 Act).

Clause 63 – Confidentiality of communications carried before 1 July 1997

This clause applies to information, concerning an individual’s personal particulars or that relates to the contents of a communication carried over a telecommunications network, that came into another person’s knowledge or possession before 1 July 1997 (cl. 63(1)).

Subclause 63(2) continues the effect of s. 88 of the 1991 Act after 1 July 1997 in relation to such information despite its repeal.  That section provides for primary prohibitions on the use or disclosure of such information.

Subclause 63(3) provides that terms used in this clause have the same meaning as in 
s. 88 of the 1991 Act.

Clause 64 – Confidentiality of communications carried on or after 1 July 1997

Part 13 of the proposed Telecommunications Act 1996 provides for the protection of information obtained in connection with the provision of certain carriages services and emergency call services.  Clause 64 provides that this Part does not apply to information obtained before 1 July 1997 unless it is information of a kind covered by the Part.

Division 12––Transitional provisions relating to reviews 
and reports about the telecommunications industry

Clause 65 – Reviews and reports for the year ending on 30 June 1997

Under s. 399(1) of the current Telecommunications Act, AUSTEL is required to review, and report to the Minister on, competitive safeguards within the telecommunications industry.  Under s. 399(2), AUSTEL is required to review, and report to the Minister on, carrier performance.  AUSTEL’s reports under ss. 399(1) and (2) are to be provided to the Minister as soon as practicable after each 1 July (s. 399(4)) and are to be tabled in Parliament.

As a result of the proposed transfer on 1 July 1997 of competition policy functions from AUSTEL to the ACCC, the ACCC will be required to prepare the competitive safeguards report with respect to the 1997/98 and following financial years (see proposed s. 151CL of the TPA).  With respect to the 1996/97 financial year, cl. 65 of the Bill will impose on the ACCC AUSTEL’s obligations to report to the Minister under 
ss. 399(1) and (4) of the Telecommunications Act 1991 as soon as practicable after 
1 July 1997.

Under cl. 104 of the Telecommunications Bill 1996, the ACA will be required to monitor, and report each financial year to the Minister on, all significant matters relating to the performance of carriers, as well as service providers.  The ACA will be required to provide the Minister with its report as soon as practicable after 1 July 1998 and each subsequent 1 July.  With respect to the 1996/97 financial year, cl. 65 of the Telecommunications (Transitional Provisions and Consequential Amendments) Bill 1996 imposes on the ACA AUSTEL’s obligation to report to the Minister under 
s. 399(2) and (4) as soon as practicable after 1 July 1997.

Division 13––Transitional provisions relating to anti-competitive 
conduct in the telecommunications industry

Clause 66 – Modified application of Part XIB of the Trade Practices Act 1974

Before 1 July 1997, proposed Part XIB of the TPA, dealing with anti-competitive conduct, will have effect as if a reference in that Part to a carrier were a reference to a carrier within the meaning of the Telecommunications Act 1991 and a reference to a carrier in cl. 86 of the Telecommunications Bill 1996 (dealing with carriage service providers) were a reference to a carrier within the meaning of the Telecommunications Act 1991.

Division 14––Transitional provisions relating to the numbering plan 

This Division provides for the carryover of numbers allocated before 1 July 1997 to the new numbering regime under the proposed Telecommunications Act 1996.

Clause 67 – Numbers taken to have been allocated at the beginning of 1 July 1997

Prior to the passage of the Telecommunications Act 1991, Telstra and its predecessors were solely responsible for allocating numbers.  Notwithstanding AUSTEL’s current role in allocating numbers, Telstra still holds some number ranges not allocated by AUSTEL and has continued to allocate those numbers to its customers.

Clause 67 allows the ACA to make a declaration, in the new numbering plan made by the ACA under proposed s. 439 of the Telecommunications Act 1996, that these numbers will be taken to have been allocated to a specified person at the beginning of 
1 July 1997 (cl. 67(1)).

Subclause 67(2) makes it clear that the deemed allocation of these numbers will not be subject to payment of an allocation charge determined under Part 2 of the proposed Telecommunications (Numbering Charges ) Act 1996.

Subclause 67(3) makes it clear that such numbers may be transferred, surrendered, or withdrawn under the numbering plan made under proposed s. 439 of the Telecommunications Act 1996.

Subclause 67(4) defines terms used in this clause.

Clause 68 – Modified procedural requirements for the first numbering plan

Proposed s. 444 of the new Telecommunications Act 1996 requires the ACA to follow certain procedural requirements in making a numbering plan under proposed s. 439 of that Act.  Preparations are underway to have a new numbering plan prepared for commencement on 1 July 1997, the commencement of the new Act and telecommunications regime.  It is not clear that there will be sufficient available time following passage of the new legislation to follow the procedures set out in s. 444.  Clause 68 provides that s. 444 does not apply to the making of a plan before 1 July 1997 (which AUSTEL will be permitted to do by clause 69 of this Bill and s.4 of the Acts Interpretation Act 1901).

Division 15––Exercise of powers by AUSTEL before relevant commencement dates

Clause 69 – Exercise of powers by AUSTEL before 1 July 1997 – general

Section 4 of the Acts Interpretation Act 1901 provides that where an Act that is not to come into operation immediately upon its enactment confers power to make an appointment or to make an instrument of a legislative or administrative character (including rules and regulations) then, unless the contrary intention appears, the power may be exercised, and anything may be done for the purpose of enabling the exercise of the power or of bringing the appointment or instrument into effect, before the Act concerned comes into operation as if it had come into operation.

The relevant appointment or instrument cannot take effect before the commencement of the relevant provisions of the new Act.

Clause 69 applies if:

•	a provision of the proposed Telecommunications Act 1996 (other than section 56, dealing with the grant of carrier licences); or

•	a provision of Division 5 of Part 5 of the proposed Australian Communications Authority Act 1996 (dealing with the power of the ACA to delegate its functions and powers); or

•	a provision of Part 7 of the proposed Australian Communications Authority Act 1996 (dealing, among other things, with the power of the ACA to make determinations fixing its charges and to make a definitions determination);

(called ‘eligible provisions’, as defined in cl. 70) confers, or will confer, a power on the ACA and, assuming that Part 3 of the proposed Australian Communications Authority Act 1996 (dealing, among other things, with the establishment of the ACA) had commenced at the commencement of cl. 69, s. 4 of the Acts Interpretation Act 1901 would have authorised the ACA to exercise that power, or do a particular thing in relation to the exercise of that power, before 1 July 1997 (cl. 69(1)).

Section 4 of the Acts Interpretation Act 1901 will be taken to authorise AUSTEL to exercise that power, or do that thing, before 1 July 1997 as if a reference in that eligible provision to the ACA were a reference to AUSTEL (cl. 69(2)).

Anything done by AUSTEL in accordance with cl. 69 before 1 July 1997 will have effect, on and after 1 July 1997, as if it had been done by the ACA (cl. 69(3)).

This mechanism will enable preparatory work for the commencement of much of the new regime on 1 July 1997 to be done in the period between Royal Assent to the legislation and 1 July.  Note, however, that clause 45 of this Bill creates a special rule for applications for carrier licences which enables them to be made from 5 June 1997.

Although AUSTEL will be able to do any necessary preliminary work in relation to the grant of such licences in the lead up to 1 July, any decision to grant a carrier licence in response to such an application will only be able to be made by the ACA on or after 1 July 1997.

Clause 70 – Definitions

Clause 70 sets out definitions of terms used in Division 15.  The definition of the key term ‘eligible provision’ is discussed in the above commentary on cl. 69.

Division 16––Transitional provisions relating to eligible combined areas

Clause 71 – Eligible combined areas

Under s. 16(1) of the Telecommunications Act 1991, the Minister may determine that specified combined areas are eligible combined areas for the purposed of s. 12(3)(b) of that Act.  That provision provides that places are in the same area if they are situated in properties each of which forms part of a combined area and, because of a determination in force under s. 16, that combined area is an eligible combined area for the purposes of s. 12(3)(b).  On 26 July 1991, the then Minister made the Telecommunications (Eligible Combined Areas) Determination No. 1 of 1991 under s. 16(1).

Clause 71 applies to a determination in force under s. 16(1) of the Telecommunications Act 1991 immediately before the commencement of Part 2 of the proposed Telecommunications Act 1996 (which, in Division 4, deals with rules about distinct places, including the concept of eligible combined areas) (cl. 71(1)).

The proposed Telecommunications Act 1996 will have effect as if:

•	the determination had been made by the Minister under s. 40(1) of the proposed Telecommunications Act 1996 (dealing with the Minister’s power to determine that specified combined areas are eligible combined areas) immediately after the commencement of that provision;

•	a reference in the determination to the Telecommunications Act 1991 were a reference to the proposed Telecommunications Act 1996;

•	a reference in the determination to s. 13 of the Telecommunications Act 1991 (dealing with the circumstances in which an area of land is a property for the purposes of the rules about distinct places) were a reference to s. 37 of the proposed Telecommunications Act 1996 (which is based on s. 13 of the current Act); and

•	a reference in the determination to s. 12(3)(b) of the Telecommunications Act 1991 were a reference to corresponding s. 36(3)(b) of the proposed Telecommunications Act 1996 (cl. 71(2)).

Proposed s. 71(2) will not prevent the determination referred to in that provision from being varied or revoked in accordance with s. 33(3) of the Acts Interpretation Act 1901 (cl. 71(3)).

Division 17––Transitional provisions relating to actions under
 sections 95 and 186 of the Telecommunications Act 1991

Clause 72 – Actions under sections 95 and 186 of the Telecommunications Act 1991

Despite the repeal of ss. 95 and 186 of the Telecommunications Act 1991 (dealing with carriers’ rights, with AUSTEL’s consent, to apply to the Federal Court for relief in connection with a contravention of their reserved rights and the rights of certain persons to apply to the Federal Court for relief in connection with a contravention of the non-discrimination rules in s. 183 or 184), these provisions will continue to apply, on and after 1 July 1997, in relation to a contravention that occurred before that date, as if:

•	those sections had not been repealed;

•	a person who was a carrier immediately before 1 July 1997 had remained a carrier on and after that date; and

•	in the case of s. 95 of the current Act, a reference in that section to AUSTEL included a reference to the ACA (cl. 72(1)).

Section 395 of the Telecommunications Act 1991 (dealing with the Federal Court’s powers to grant injunctions) will continue to apply, on and after 1 July 1997, in relation to a contravention of s. 95 or s. 186 that occurred before that date, as if:

•	s. 395 had not been repealed;

•	a person who was a carrier immediately before 1 July 1997 had remained a carrier on and after that date; and

•	in the case of s. 95, a reference in that section to AUSTEL included a reference to the ACA (cls. 72(2) and (3)).

Division 18––Transitional provisions relating to interception capabilities

Clause 73 – Interception capabilities

Under s. 73A of the Telecommunications Act 1991, the Minister may give the holder of a general telecommunications licence or a public mobile licence a written notice requiring that a telecommunications system operated, or proposed to be operated, by the holder have a specified kind of interception capability.

The proposed Telecommunications Act 1996 will have effect as if a notice in force under s. 73A(3) of the Telecommunications Act 1991 immediately before 1 July 1997 had been given under proposed s. 307 of the Telecommunications Act 1996 (which enables the Minister to give a carrier or carriage service provider a written notice requiring that a controlled network, a controlled facility or a controlled carriage service have a specified kind of interception capability) (cls. 73(1) and (2)).

The proposed Telecommunications Act 1996 will not, however, have this effect unless the notice would have been authorised under proposed s. 307 of the Telecommunications Act 1996 if it had been given under that section at the beginning of 1 July 1997 (cl. 73(3)).

A notice in force under s. 73A of the Telecommunications Act 1991 immediately before 1 July 1997 will be able to be varied or revoked in accordance with s. 33(3) of the Acts Interpretation Act 1901 (cl. 73(4)).

Division 19––Transitional provisions relating to the AMPS plan

Clause 74 – AMPS plan

Clause 2.2 of the Telecommunications (Public Mobile Licences) Declaration (No. 1) of 1992 provides that between 1 January 1996 and 1 January 2000, the holder of a public mobile licence must comply with any plan in writing determined by the Minister in relation to ceasing installation or operation of an Advanced Mobile Phone System (AMPS) network, ceasing the supply of AMPS services or ceasing to use the radiocommunications spectrum used in relation to AMPS services.

The proposed Telecommunications Act 1996 will have effect as if such a plan in force immediately before 1 July 1997 had been determined by the Minister under proposed 
s. 346(2) of that Act (dealing with the Minister’s power to determine a plan to phase out AMPS) (cls. 74(1) and (2)).

This will not prevent any current plan being varied or revoked in accordance with 
s. 33(3) of the Acts Interpretation Act 1901 (cl. 74(3)).

Division 20––Transitional provisions relating to technical 
standards about customer equipment and customer cabling

Clause 75 – Technical standards about customer equipment and customer cabling

Section 246 of the Telecommunications Act 1991 (the 1991 Act) allows AUSTEL to make technical standards for customer equipment and customer cabling that is connected to a telecommunications network.  Proposed s. 361 of the Telecommunications Act 1996 allows the ACA to make standards for customer equipment and customer cabling used in connection with a telecommunications network.

The standards-making power under the 1991 Act is much broader than that under the proposed Telecommunications Act 1996.

Clause 75 gives transitional operation to any standards made under the 1991 Act (old standards) (cl. 75(1)), that were in force immediately before 1 July 1997, and deems them to have been made under proposed s. 361 of the Telecommunications Act 1996 (cl. 75(2)).  The procedural requirements under proposed s. 363 of that Act for making standards under proposed s. 361 are deemed to have been complied with in relation to an old standard that is given transitional operation.

If, however, there is anything in an old standard that is inconsistent with proposed 
s. 361(2) of the Telecommunications Act 1996 (which provides for the matters in relation to which a standard may be made under that provision), then the old standard will not be given transitional operation, and will expire upon the repeal of the 1991 Act (cl. 75(3)).

Subclause 75(4) makes it clear that after 30 June 1997, the ACA may revoke or vary any such standard by virtue of s.33 of the Acts Interpretation Act 1901.

Division 21––Transitional provisions relating to tariffs for
the supply of carriage services

Clause 76 – BCS tariff to continue to apply

BCS tariffs, within the meaning of the current Telecommunications Act, in force immediately before 1 July 1997, will continue in force as if they were a standard form of agreement formulated under Part 23 of the proposed Telecommunications Act 1996 during the period beginning on 1 July 1997 and ending at the earliest of the following times:

•	the end of 31 December 1997;

•	the time when the tariff is varied;

•	the time when the tariff is revoked.

Part 23 of the proposed Telecommunications Act 1996 will have effect during this period in relation to such a BCS tariff (cls. 76(1), (2), (5) and (6)).  A copy of the BCS tariff will not, however, be required to be given to the ACA (cl. 76(4)).

Notwithstanding the continued operation of a BCS tariff by cl. 76, it will still be able to be varied or revoked (cl. 76(3)).

Part 4––Amendments

Clause 77 – Schedule(s)

Clause 2 of the Bill provides that Part 4 and Schedule 1 to the Bill commence on 1 July 1997.  It also provides that:

•	if the proposed Broadcasting Services Amendment Act 1996 (which, among other things, makes an amendment to s. 171 of the Broadcasting Services Act 1992) does not commence before 1 July 1997, the amendments made to that section by items 13 and 14 of Schedule 1 to the Bill will commence immediately after the commencement of the proposed Broadcasting Services Amendment Act 1996 (cl. 2(5)); and

•	if the proposed Legislative Instruments Act 1996 (which, among other things, specifies existing telecommunications and radiocommunications legislation as legislation providing for legislative instruments likely to have an effect on business) does not commence before 1 July 1997, the amendments made to this specification by items 37, 38 and 39 of Schedule 1 to the Bill will commence immediately after the commencement of the Legislative Instruments Act 1996 (cl. 2(6)).

Clause 78 provides that, subject to cl. 2, the Acts specified in a Schedule to the Bill are amended in accordance with the applicable items in that Schedule, and that the other items in that Schedule (dealing with transitional matters) have effect according to their terms.

Schedule 1––General amendments

Items 1 and 2 – Amendments to section 77 of the Australian Broadcasting Corporation Act 1983

Section 77 of the Australian Broadcasting Corporation Act 1983 provides that for the purpose of providing and operating a transmitting station, a person acting under the authority of the Minister may:

(a)	erect, place and maintain any electric line that is necessary for conveying electric current to, or for the operation of, the transmitting station; and

(b)	arrange for and obtain from any person the supply of any electric current that is necessary or advisable for the operation of the transmitting station.

In respect of the erection, placing and maintenance of an electric line by a person under paragraph (a) above, that person has the same powers, and is subject to the same obligations, as are conferred or imposed on a general carrier under Division 3 of Part 7 of the Telecommunications Act 1991 to install or maintain a facility within the meaning of that Act (which relates to carriers’ powers to enter land).

Part 24 of the proposed Telecommunications Act 1996 gives effect to the carriers’ powers and immunities set out in Schedule 3 to that Act.  As a consequence, items 1 and 2 amend s. 77 of the Australian Broadcasting Corporation Act 1983 to provide, in effect, that in respect of the erection, placing and maintenance of an electric line by a person under paragraph (a) above, that person has the same powers, and is subject to the same obligations, as are conferred or imposed on a carrier under Schedule 3 to the proposed Telecommunications Act 1996 to install or maintain a facility.  The terms ‘carrier’ and ‘facility’ will have the same meaning as in the proposed Telecommunications Act 1996 and the term ‘maintenance’, in relation to a facility, will have the same meaning as in proposed cl. 6 of Schedule 3 to that Act.

Items 3 and 4 – Amendments to subsection 16(4) of the Australian National Railways Commission Act 1983

Paragraph 16(4)(c) of the Australian National Railways Commission Act 1983 prohibits the Commission from altering ‘the position of any electricity or telecommunications cable or wire’ unless it has given reasonable notice, in writing, of its intention to do so to the authority having the care and management of the road, main, pipe, cable or wire.

Item 3 replaces the reference in the prohibition to a telecommunications cable or wire with a reference to a line within the meaning of the proposed Telecommunications Act 1996.  ‘Line’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or capable of being used, or for use, as a continuous artificial guide for or in connection with carrying communications by means of guided electromagnetic energy.

Item 4 replaces the final words ‘or wire’ in s. 16(4) of the Australian National Railways Commission Act with the words ‘wire or line’.  This reference to ‘line’ will mean a line within the meaning of the proposed Telecommunications Act 1996.

Item 5 – Amendment to section 11 of the Australian Postal Corporation Act 1989

Section 11 of the Australian Postal Corporation Act 1989 provides that that Act has effect subject to the Radiocommunications Act 1992 and the Telecommunications Act 1991.  Item 3 omits the reference in s. 11 to ‘Telecommunications Act 1991’ and substitutes a reference to the proposed Telecommunications Act 1996.

Item 6 – Amendment to paragraph 18(da) of the Australian Postal Corporation Act 1989

Paragraph 18(da) of the Australian Postal Corporation Act 1989 provides that Australia Post has power, for or in connection with the performance of its functions, to supply telecommunications services as defined in section 5 of the Telecommunications Act 1991.

Item 6 replaces paragraph 18(da) with a provision the effect of which will be that Australia Post has power, for or in connection with the performance of its functions, to supply carriage services and content services within the meaning of the proposed Telecommunications Act 1996.

‘Carriage service’ is defined by cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy.  The proposed definition of ‘carriage service’ has the same effect as the definition of ‘telecommunications service’ under the existing Telecommunications Act.

‘Content service’ is defined by cl. 15 of the Telecommunications Bill 1996 to mean:

(a)	a broadcasting service within the meaning of the Broadcasting Services Act 1992;

(b)	an on-line information service such as a dial-up information service;

(c)	an on-line entertainment service such as a video-on-demand service or an interactive computer game service;

(d)	any other on-line service such as an education service provided by a State or Territory government; or

(e)	a service of a kind specified in a Ministerial determination.

Items 7 to 12 – Amendments to subsection 6(1) and paragraph 158(a) of the Broadcasting Services Act 1992

Subsection 6(1) of the Broadcasting Services Act 1992 provides that in that Act, unless the contrary intention appears, ‘line’ has the same meaning as in the Telecommunications Act 1991.  Item 7 replaces this definition with a definition which provides that, unless the contrary intention appears, ‘line’ has the same meaning as in the proposed Telecommunications Act 1996.  ‘Line’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or capable of being used, or for use, as a continuous artificial guide for or in connection with carrying communications by means of guided electromagnetic energy.

As a consequence of the proposed merger of AUSTEL and the SMA from 1 July 1997 to form the ACA, item 8 omits the definition of ‘SMA’ from s. 6(1) of the Broadcasting Services Act 1992, item 11 inserts a definition of ‘ACA’ and item 12 replaces the reference in paragraph 158(a) of the Broadcasting Services Act to ‘the SMA’ with a reference to ‘the ACA’.

Subsection 6(1) of the Broadcasting Services Act defines ‘subscription television satellite’ as meaning a satellite operated under the general telecommunications licence that was granted to AUSSAT Pty Ltd (now Optus Networks Pty Ltd) and notified on 26 November 1991 in Gazette No. S323.  Item 9 amends this definition by omitting the word ‘operated’ and substituting ‘that was, at any time before 1 July 1997, operated’.  (As a result of  proposed s. 44 of the Telecommunications (Transitional Provisions and Consequential Amendments) Bill 1996, persons holding carrier licences under the Telecommunications Act 1991 as at 4 June 1997 will be deemed to have been granted a carrier licence under the proposed Telecommunications Act 1996 on 1 July 1997.)

Subsection 6(1) of the Broadcasting Services Act provides that in that Act, unless the contrary intention appears, ‘telecommunications carrier’ means the holder of a general telecommunications licence or a public mobile licence under Part 5 of the Telecommunications Act 1991.  Under the proposed Telecommunications Act 1996, the distinction between a general telecommunications licence and a public mobile licence will be removed.  Accordingly, item 10 replaces the definition of ‘telecommunications carrier’ in subsection 6(1) of the Broadcasting Services Act with a definition defining ‘telecommunications carrier’, unless the contrary intention appears, to mean a carrier within the meaning of the proposed Telecommunications Act 1996.  ‘Carrier’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean the holder of a carrier licence. ‘Carrier licence’ is defined to mean a licence granted by the ACA under cl. 56 of the Telecommunications Bill.

Items 13 and 14 – Amendments of section 171 of the Broadcasting Services Act 1992

Section 171 of the Broadcasting Services Act, as amended by the proposed Broadcasting Services Amendment Act 1996, empowers the Minister to direct the ABA to investigate any matter with respect to which the Parliament is given power to make laws by paragraph 51(v) of the Constitution.  Subsection 171(2) provides, among other things, that without limiting the generality of the foregoing, the Minister may direct the ABA to investigate any matter relating to the future regulation or operation of a telecommunications service.  ‘Telecommunications service’ is defined in s. 171(3) to have the same meaning as in the Telecommunications Act 1991.

As a result of items 13 and 14, with effect from 1 July 1997 the Minister will be able to direct the ABA to investigate any matter relating to the future regulation or operation of a carriage service or a content service as defined by the proposed Telecommunications Act 1996.

‘Carriage service’ is defined by cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy.  The proposed definition of ‘carriage service’ has the same effect as the definition of ‘telecommunications service’ under the existing Telecommunications Act.

‘Content service’ is defined by cl. 15 of the Telecommunications Bill 1996 to mean:

(a)	a broadcasting service within the meaning of the Broadcasting Services Act 1992;

(b)	an on-line information service such as a dial-up information service;

(c)	an on-line entertainment service such as a video-on-demand service or an interactive computer game service;

(d)	any other on-line service such as an education service provided by a State or Territory government; or

(e)	a service of a kind specified in a Ministerial determination.

Item 15 – Amendment to subsection 600F(2) of the Corporations Law

Paragraph (d) of the definition of ‘essential service’ in subsection 600F(2) of the Corporations Law refers to ‘a telecommunications service within the meaning of the Telecommunications Act 1991’.  The effect of item 15 is to replace this definition with a definition providing that ‘essential service’ includes a carriage service within the meaning of the proposed Telecommunications Act 1996.  ‘Carriage service’ is defined by cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy.  The proposed definition of ‘carriage service’ has the same effect as the definition of ‘telecommunications service’ under the existing Telecommunications Act.

Item 16 – Amendment to subsection 76A(1) (definition of carrier) of the Crimes Act 1914

Subsection 76A(1) of the Crimes Act 1914 provides that, unless the contrary intention appears, in Part VIA of that Act, which contains offence provisions relating to computers, ‘carrier’ means a general carrier or a mobile carrier within the meaning of the Telecommunications Act 1991 or a person who supplies eligible services within the meaning of that Act under a class licence issued under s. 209 of that Act.

Under the proposed Telecommunications Act 1996, the distinction between a general telecommunications licence and a public mobile licence will be removed.  In addition, under that Act, rather than operating under a class licensing system, service providers will operate under a system of standard conditions (known as service provider rules) applying to their operations.    Accordingly, item 16 replaces the definition of ‘carrier’ in s. 76A(1) of the Crimes Act 1914 with a definition defining ‘carrier’, unless the contrary intention appears, to mean a carrier or a carriage service provider within the meaning of the proposed Telecommunications Act 1996.  ‘Carrier’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean the holder of a carrier licence.  ‘Carrier licence’ is defined to mean a licence granted by the ACA under cl. 56 of the Telecommunications Bill.  ‘Carriage service provider’ is defined in cl. 86 of that Bill.

Items 17 and 18 – Amendments to section 85S of the Crimes Act 1914

Section 85S of the Crimes Act 1914 makes it an offence for a person to use a ‘telecommunications service’ supplied by Australia Post to menace or harass a person, or in such a way as would be regarded by reasonable persons as being offensive.  Items 17 and 18 remove the reference to ‘telecommunications service’ in s. 85S and substitute ‘carriage service’ which is defined to have the same meaning as in the proposed Telecommunications Act 1996.  ‘Carriage service’ is defined by cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy.  The proposed definition of ‘carriage service’ has the same effect as the definition of ‘telecommunications service’ under the existing Telecommunications Act.

Item 19 – Amendment to Part VIIB (Heading) of the Crimes Act 1914

The heading to Part VIIB of the Crimes Act 1914 is ‘Offences relating to telecommunications services’.  The Telecommunications Bill 1996 uses the term ‘carriage service’ rather than ‘telecommunications service’ and also deals with other services such as ‘content services’.  As Part VIIB deals with offences relating to telecommunications generally, the heading to the Part is proposed to be amended by item 19 to read ‘Offences relating to telecommunications’.

Items 20 to 22 – Amendments to section 85ZB of the Crimes Act 1914

Section 85ZB of the Crimes Act 1914 provides that, unless the contrary intention appears, in Part VIIB of that Act, which contains offence provisions relating to telecommunications, ‘carrier’ means a general carrier or a mobile carrier within the meaning of the Telecommunications Act 1991 or a person who supplies eligible services within the meaning of that Act under a class licence issued under s. 209 of that Act.

Under the proposed Telecommunications Act 1996, the distinction between a general carrier and a mobile carrier will be removed.  In addition, under that Act, rather than operating under a class licensing system, service providers will operate under a system of standard conditions applying to their operations.  Accordingly, item 20 replaces the definition of ‘carrier’ in s. 85ZB of the Crimes Act 1914 with a definition defining ‘carrier’, unless the contrary intention appears, to mean a carrier or a carriage service provider within the meaning of the proposed Telecommunications Act 1996.  ‘Carrier’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean the holder of a carrier licence.  ‘Carrier licence’ is defined to mean a licence granted by the ACA under 
cl. 56 of the Telecommunications Bill.  ‘Carriage service provider’ is defined in 
cl. 86 of that Bill.

Items 21 and 22 omit the definitions in s. 85ZB of ‘telecommunications network’ and ‘telecommunications service’.  References to ‘telecommunications network’ in Part VIIB of the Crimes Act will, unless the contrary intention appears, have the same meaning as in the proposed Telecommunications Act 1996 (see Crimes Act, s. 85ZC, as proposed to be amended by item 25).  ‘Telecommunications network’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean a system, or a series of systems, that carries, or is capable of carrying, communications by means of guided and/or unguided electromagnetic energy.

References to ‘telecommunications service(s)’ in ss. 85ZD, 85ZE, 85ZF, 85ZG and 85ZKA of the Crimes Act will be replaced by references to ‘carriage service(s)’ (see items 26, 27, 28, 29, 32 and 34 of Schedule 1 to the Bill).  ‘Carriage service’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy.  The proposed definition of ‘carriage service’ has the same effect as the definition of ‘telecommunications service’ under s. 85ZB of the Crimes Act as it currently stands.

Item 23 – Amendment to section 85ZBA of the Crimes Act 1914

Section 85ZBA of the Crimes Act 1914, contained in Part VIIB of that Act, dealing with telecommunications offences generally, deems a person to be a carrier for the purposes of that Part if the person does any thing for or on behalf of a general carrier or a mobile carrier, in respect of:

(a)	the doing by the person of that thing;

(b)	any rental, fee or charge payable for or in relation to the doing by that person of that thing;

(c)	the operation by that person of a facility in connection with the doing of that thing;

(d)	a facility belonging to that person; or

(e)	the operation by that person of a satellite.

The effect of item 23, and the note to that item, is to replace the reference, in s. 85ZBA of the Crimes Act and in the heading to that section, to a general carrier or a mobile carrier with a reference to a carrier.  Under the proposed Telecommunications Act 1996, the distinction between a general carrier and a mobile carrier will be removed.

Items 24 and 25 – Amendments to section 85ZC of the Crimes Act 1914

Section 85ZC of the Crimes Act 1914 provides that, unless the contrary intention appears, expressions used in Part VIIB of that Act, and in the Telecommunications Act 1991, have the same respective meanings as in that Act.  Item 24 replaces the reference to ‘Telecommunications Act 1991’ with a reference to the proposed Telecommunications Act 1996.

Item 25 provides that for the purposes of the application of the proposed Telecommunications Act 1996 to Part VIIB of the Crimes Act, a reference in the Telecommunications Act 1996 to communication does not include a reference to communication solely by means of radiocommunication.  This reflects s. 85ZB of the Crimes Act which provides that, unless the contrary intention appears, a reference in Part VIIB of that Act to ‘communication’ does not include a reference to communication solely by means of radiocommunication.

Item 26 – Amendment to section 85ZD of the Crimes Act 1914

Section 85ZD of the Crimes Act 1914 prohibits a person from knowingly or recklessly causing a communication in the course of telecommunications carriage to be received by a person or telecommunications service other than the person or service to whom it is directed.

Item 26 replaces the reference in s. 85ZD to ‘telecommunications service’ with a reference to ‘carriage service’.  This reference will have the same meaning as it has in the proposed Telecommunications Act 1996 (see Crimes Act, s. 85ZC, as proposed to be amended by item 25).  ‘Carriage service’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy.  The proposed definition of ‘carriage service’ has the same effect as the definition of ‘telecommunications service’ in s. 85ZB of the Crimes Act as it currently stands.

Item 27 – Amendment to section 85ZE of the Crimes Act 1914

Section 85ZE of the Crimes Act 1914 prohibits a person from knowingly or recklessly using a telecommunications service supplied by a carrier to menace or harass another person or from using a telecommunications service supplied by a carrier in such as way as would be regarded by reasonable persons as being, in all the circumstances, offensive.

Item 27 replaces the references in s. 85ZE to ‘telecommunications service’ with references to ‘carriage service’. The references to ‘carriage service’ will have the same meaning as that term has in the proposed Telecommunications Act 1996 (see Crimes Act, s. 85ZC, as proposed to be amended by item 25).  ‘Carriage service’ is defined in 
cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy.  The proposed definition of ‘carriage service’ has the same effect as the definition of ‘telecommunications service’ under s. 85ZB of the Crimes Act as it currently stands.

The note to item 27 indicates that as from 1 July 1997 the reference to ‘telecommunications services’ in the heading to s. 85ZE will be replaced by a reference to ‘carriage services’.
  
Item 28 – Amendment to section 85ZF of the Crimes Act 1914

Section 85ZF of the Crimes Act 1914 prohibits a person from defrauding a carrier of any rental, fee or charge properly payable for or in relation to a telecommunications service supplied by the carrier or from knowingly or recklessly causing a carrier to supply a telecommunications service to another person without that other person paying the proper rental, fee or charge.

Item 28 replaces references in s. 85ZF to ‘telecommunications service’ with references to ‘carriage service’.  The references to ‘carriage service’ will have the same meaning as that term has in the proposed Telecommunications Act 1996 (see Crimes Act, s. 85ZC, as proposed to be amended by item 25).  ‘Carriage service’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy.  The proposed definition of ‘carriage service’ has the same effect as the definition of ‘telecommunications service’ under s. 85ZB of the Crimes Act as it currently stands.

Items 29 and 30 – Amendments to section 85ZG of the Crimes Act 1914

Section 85ZG of the Crimes Act 1914 prohibits a person from knowingly or recklessly:

(a)	manipulating, or tampering or interfering with, any facility operated by a carrier in such a way as to hinder the normal operation of a telecommunications service provided by a carrier; or

(b)	using or operating any apparatus or device (whether or not it is comprised in, connected to or used in connection with a telecommunications network) in such a way as to hinder the normal operation of a telecommunications service supplied by a carrier.

Items 29 and 30 replace references in ss. 85ZB(1) and (2) to ‘telecommunications service’ with references to ‘carriage service’.  The references to ‘carriage service’ will have the same meaning as that term has in the proposed Telecommunications Act 1996 (see Crimes Act, s. 85ZC, as proposed to be amended by item 25).  ‘Carriage service’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy.  The proposed definition of ‘carriage service’ has the same effect as the definition of ‘telecommunications service’ under s. 85ZB of the Crimes Act as it currently stands.

Item 31 – Amendment to section 85ZK of the Crimes Act 1914

Subsection 85ZK(1) of the Crimes Act 1914 prohibits a person from connecting equipment to a telecommunications network with the intention of using it in, or in relation to, the commission of an offence or from using equipment connected to a telecommunications network in, or in relation to, the commission of such an offence.  Subsection 85ZK(2) provides that s. (1) does not apply in relation to equipment if the connection by a person of the equipment to a telecommunications network would not be in contravention of s. 253 of the Telecommunications Act 1991.

A connection of customer equipment to a telecommunications network will not be in contravention of s. 253 of the Telecommunications Act 1991 if a permit issued by AUSTEL for the connection is in force in respect of customer equipment that is of the same type as the first-mentioned equipment.  Item 31 replaces the reference in 
s. 85ZK(2) to s. 253 of the Telecommunications Act 1991 with a reference to proposed 
s. 395 of the Telecommunications Act 1996.  A connection of customer equipment to a telecommunications network will not be in contravention of proposed s. 395 if the connection is in accordance with a connection permit issued by the ACA.

Items 32 to 34 – Amendments to section 85ZKA of the Crimes Act 1914

Subsection 85ZKA(1) of the Crimes Act 1914 prohibits a person from manufacturing, advertising, displaying or offering for sale, selling or using, operating or possessing equipment that the person knows is equipment of a kind that, when connected to a telecommunications network operated by a carrier, enables 2 persons to send communications to, and receive communications from, each other, over that network during those calls.

Item 32 replaces the reference to ‘telecommunications services’ in s. 85ZKA(1) with a reference to ‘carriage services’.  This reference will have the same meaning as it has in the proposed Telecommunications Act 1996 (see Crimes Act, s. 85ZC, as proposed to be amended by item 25).  ‘Carriage service’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy.  The proposed definition of ‘carriage service’ has the same effect as the definition of ‘telecommunications service’ in s. 85ZB of the Crimes Act as it currently stands.

Subsection 85ZKA(2) provides that the prohibition in s. 85ZKA(1) does not apply to equipment if the connection of the equipment to a telecommunications network would not be in contravention of s. 253 of the Telecommunications Act 1991 or if the equipment is used, or intended for use, by a carrier in connection with a telecommunications service or the operation or maintenance of a telecommunications network.

A connection of customer equipment to a telecommunications network will not be in contravention of s. 253 of the Telecommunications Act 1991 if a permit issued by AUSTEL for the connection is in force in respect of customer equipment that is of the same type as the first-mentioned equipment.  Item 33 replaces the reference in 
s. 85ZKA(2)(a) to s. 253 of the Telecommunications Act 1991 with a reference to proposed s. 395 of the Telecommunications Act 1996.  A connection of customer equipment to a telecommunications network will not be in contravention of proposed 
s. 395 if the connection is in accordance with a connection permit issued by the ACA.

Item 34 replaces the reference to ‘telecommunications service’ in s. 85ZKA(2)(b) with a reference to ‘carriage service’.

Items 35 and 36 – Amendments to subsection 12(3) of the Lands Acquisition Act 1989

Paragraph 12(3)(c) of the Lands Acquisition Act 1989 provides that an authorised person is not to exercise powers under s. 12(1) of that Act so as to alter the position of any electricity or telecommunications cable or wire unless the authorised person has given reasonable notice, in writing, of his or her intention to do so to the authority responsible for the road, main, pipe, cable or wire.

Item 35 replaces the reference in s. 12(3)(c) to a telecommunications cable or wire with a reference to a line within the meaning of the proposed Telecommunications Act 1996.  ‘Line’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or capable of being used, or for use, as a continuous artificial guide for or in connection with carrying communications by means of guided electromagnetic energy.

Item 36 replaces the final words ‘or wire’ in s. 12(3) with the words ‘wire or line’.  This reference to ‘line’ will mean a line within the meaning of the proposed Telecommunications Act 1996.

Items 37 to 39 – Amendments to Schedule 2 to the Legislative Instruments Act 1996

Schedule 2 to the proposed Legislative Instruments Act 1996 specifies existing telecommunications and radiocommunications legislation as legislation providing for legislative instruments likely to have an effect on business.

As a consequence of the repeal by Schedule 5 to the Bill of the Radiocommunications (Permit Tax) Act 1983, which is now defunct, item 37 repeals the reference to this Act in Schedule 2 to the proposed Legislative Instruments Act.

As a consequence of the repeal by Schedule 5 to the Bill of the Telecommunications Act 1991 and the Telecommunications (Carrier Licence Fees) Act 1991 and their replacement by the proposed Telecommunications Act 1996 and the proposed Telecommunications (Carrier Licence Charges) Act 1996, item 38 makes appropriate modifications to the references to these Acts in Schedule 2 to the proposed Legislative Instruments Act. 

As a consequence of the repeal by Schedule 5 to the Bill of the Telecommunications (Public Mobile Licence Charge) Act 1992, the Telecommunications (Numbering Fees) Act 1991, and the Telecommunications (Universal Service Levy) Act 1991 and the replacement of the latter two Acts by the proposed Telecommunications (Numbering Charges) Act 1996 and the proposed Telecommunications (Universal Service Levy) Act 1996, item 39 makes appropriate modifications to the references to these Acts in Schedule 2 to the proposed Legislative Instruments Act. 

Items 40 to 42 – Amendments to section 6 of the Ombudsman Act 1976

Subsection 6(4D) of the Ombudsman Act 1976 allows the Ombudsman to transfer a matter to AUSTEL if the Ombudsman becomes of the opinion that a complaint with respect to the action has been, or could have been, made by the complainant to AUSTEL under Part 15 of the Telecommunications Act 1991 and the matter could be more conveniently or effectively dealt with by AUSTEL.

Subsection 6(4E) of that Act provides that a complaint transferred under s. (4D) is to be taken to be a complaint made to AUSTEL under Part 15 of the Telecommunications Act 1991.  Part 15 deals with AUSTEL’s investigatory powers in relation to telecommunications matters.

Item 40 replaces references to ‘AUSTEL’ in ss. 6(4D) and (4E) of the Ombudsman Act with references to ‘the ACA’.

Item 41 replaces references in ss. 6(4D) and 6(4E) to Part 15 of the Telecommunications Act 1991 with references to Part 26 of the proposed Telecommunications Act 1996.  Part 26 will deal with the ACA’s investigatory powers in relation to telecommunications matters.

Subsection 6(4F) provides that in ss. (4D) and (4E) references to ‘AUSTEL’ have the same meaning as in the Telecommunications Act 1991.  Item 42 will repeal s. 6(4F) and replace it with a provision to the effect that in ss. 6(4D) and (4E), ‘ACA’ means the Australian Communications Authority.

Items 43 to 47 – Amendments to the Radiocommunications Taxes Collection Act 1983, and transitional provisions

The Radiocommunications Taxes Collection Act 1983 provides that the holder of a transmitter licence or a receiver licence under the Radiocommunications Act 1992 is to pay the SMA tax on the issue, the anniversary of the issue or the holding of the licence.  The tax imposed on the issue of such a licence is payable on the issue of the licence.  The tax imposed on the anniversary of the issue of such a licence is payable on that day.  The tax imposed on the holding of such a licence on the anniversary of the issue of the licence is payable on that day.  The tax imposed on the holding of such a licence 60 days after the anniversary of the issue of that licence is payable on the day after the end of that period.

Paragraph (a) of the definition of ‘tax’ in s. 4 of the Radiocommunications Taxes Collection Act provides that tax includes a tax imposed by the Radiocommunications (Permit Tax) Act 1983.  As a consequence of the repeal of the latter Act by Schedule 5 to the Bill, item 43 repeals this paragraph.

Subsection 7A(1) of the Radiocommunications Taxes Collection Act allows the SMA to make written determinations for, and in relation to, the penalty payable by the holder of a transmitter or receiver licence to the Commonwealth in relation to tax that remains unpaid after the due day.  Section 10A of that Act allows the SMA to enter into arrangements with persons or other bodies under which those persons or other bodies may receive payments of tax on the Commonwealth’s behalf.

As a consequence of the proposed merger of AUSTEL and the SMA from 1 July 1997 to form the ACA, items 44 and 45 replace the references to ‘SMA’ in s. 7A(1) and 
s. 10A of the Radiocommunications Taxes Collection Act with references to ‘ACA’.

Items 46 and 47 preserve the operation after 1 July 1997 of a determination or arrangement in force under s. 7A or s. 10A of the Radiocommunications Taxes Collection Act immediately before that date as if the determination or arrangement had been made or entered into by the ACA.  This will not, however, prevent the variation or revocation of such a determination or arrangement.

Item 48 – Amendment to the Schedule to the Sea Installations Act 1987

The Schedule to the Sea Installations Act 1987 lists the Telecommunications Act 1991 as an Act which is to apply to sea installations in adjacent areas within the meaning of the Sea Installations Act.  Item 48 replaces this reference with a reference to the proposed Telecommunications Act 1996.

Items 49 and 50 – Amendments to section 72 of the Special Broadcasting Service Act 1991

Section 72 of the Special Broadcasting Service Act 1991 provides that for the purpose of providing and operating the transmitting facilities for the purpose of broadcasting programs of the SBS, a person acting under the authority of the Minister may:

(a)	install and maintain any electric line that is necessary for conveying electric current to, or for the operation of, any such facilities; and

(b)	arrange for and obtain from any person the supply of any electric current that is necessary or advisable for the operation of any such facilities.

In respect of the installation and maintenance of an electric line by a person under paragraph (a) above, that person has the same powers, and is subject to the same obligations, as are conferred or imposed on a general carrier under Division 3 of Part 7 of the Telecommunications Act 1991 to install or maintain a facility within the meaning of that Act (which relates to carriers’ powers to enter land).

Part 24 of the proposed Telecommunications Act 1996 gives effect to the carriers’ powers and immunities set out in Schedule 3 to that Act.  As a consequence, items 49 and 50 amend s. 72 of the Special Broadcasting Service Act 1991 to provide, in effect, that in respect of the installation and maintenance of an electric line by a person under paragraph (a) above, that person has the same powers, and is subject to the same obligations, as are conferred or imposed on a carrier under Schedule 3 to the proposed Telecommunications Act 1996 to install or maintain a facility.  The terms ‘carrier’ and ‘facility’ will have the same meaning as in the proposed Telecommunications Act 1996 and the term ‘maintenance’, in relation to a facility, will have the same meaning as in proposed cl. 6 of Schedule 3 to that Act.

Item 51 – Amendment to subsection 5(1) (definition of carrier) of the Telecommunications (Interception) Act 1979

Subsection 5(1) of the Telecommunications (Interception) Act 1979 provides that in that Act, unless the contrary intention appears, ‘carrier’ means a general carrier or a mobile carrier within the meaning of the Telecommunications Act 1991 or a person who supplies eligible services within the meaning of that Act under a class licence issued under s. 209 of that Act.

Under the proposed Telecommunications Act 1996, the distinction between a general carrier and a mobile licence will be removed.  In addition, under that Act, rather than operating under a class licensing system, service providers will operate under a system of standard conditions applying to their operations.  Accordingly, item 51 replaces the definition of ‘carrier’ in s. 5(1) of the Telecommunications (Interception) Act 1979 with a definition defining ‘carrier’, unless the contrary intention appears, to mean a carrier or a carriage service provider within the meaning of the proposed Telecommunications Act 1996.  ‘Carrier’ is defined in cl. 7 of the Telecommunications Bill 1996 to mean the holder of a carrier licence. ‘Carrier licence’ is defined to mean a licence granted by the ACA under cl. 56 of the Telecommunications Bill.  ‘Carriage service provider’ is defined in cl. 7 of that Bill to mean a person who supplies, or proposes to supply, a carriage service.  ‘Carriage service’ is defined to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy.  The proposed definition of ‘carriage service’ has the same effect as the definition of ‘telecommunications service under the existing Telecommunications Act.

Items 52 to 54 – Amendment to subsection 5(1) (definitions of equipment, facility and line) of the Telecommunications (Interception) Act 1979

Subsection 5(1) of the Telecommunications (Interception) Act 1979 provides that in that Act, unless the contrary intention appears, ‘equipment’ has the same meaning as in the Telecommunications Act 1991.  ‘Equipment’ is defined in the Telecommunications Act 1991 to mean any apparatus or equipment used, or intended for use, in or in connection with a telecommunications network, but not to include a line.  As the proposed Telecommunications Act 1996 will not have a definition of ‘equipment’ corresponding to that in the Telecommunications Act 1991, item 52 inserts such a definition in s. 5(1) of the Telecommunications (Interception) Act.

Subsection 5(1) of the Telecommunications (Interception) Act provides that in that Act, unless the contrary intention appears, ‘facility’ has the same meaning as in the Telecommunications Act 1991.  ‘Facility’ is defined in s. 5 of the Telecommunications Act 1991 and is defined in cl. 7 of the proposed Telecommunications Act 1996 to mean any part of the infrastructure of a telecommunications network or any line, equipment, apparatus, tower, mast, antenna, tunnel, duct, hole, pit, pole or other structure or thing used, or for use, in or in connection with a telecommunications network.  As a consequence, item 53 repeals the definition of ‘facility’ in s. 5(1) of the Telecommunications (Interception) Act and replaces it by a definition that provides that ‘facility’ has the same meaning as in the proposed Telecommunications Act 1996.

Subsection 5(1) of the Telecommunications (Interception) Act provides that in that Act, unless the contrary intention appears, ‘line’ has the same meaning as in the Telecommunications Act 1991.  ‘Line’ is defined in s. 5 of the Telecommunications Act 1991 and is defined in cl. 7 of the proposed Telecommunications Act 1996 to mean a wire, cable, optical fibre, tube, conduit, waveguide or other physical medium used, or for use, as a continuous artificial guide for or in connection with carrying communications by means of guided electromagnetic energy.  As a consequence, item 54 repeals the definition of ‘line’ in s. 5(1) of the Telecommunications (Interception) Act and replaces it with a definition that provides that ‘line’ has the same meaning as in the proposed Telecommunications Act 1996.

Item 55 – Amendment to subsection 5(3) of the Telecommunications (Interception) Act 1979

Subsection 5(3) of the Telecommunications (Interception) Act 1979 provides that for the purposes of that Act, equipment, or a line or other facility is connected to a telecommunications network if it is, for the purposes of the Telecommunications Act 1991, connected to that network.  Section 17 of the Telecommunications Act 1991 indicates the circumstances in which equipment or a line or other facility is connected to a telecommunications network.

Proposed s. 7 of the Telecommunications Act 1996 provides that the term ‘connected’ in relation to a telecommunications network, a facility, customer cabling or customer equipment includes connection otherwise by means of physical contact, for example, a connection by means of radiocommunication.

Item 55 repeals s. 5(3) of the Telecommunications (Interception) Act and replaces it with a provision to the effect that for the purposes of that Act the question whether equipment, or a line or other facility, is connected to a telecommunications network is to be determined in the same manner as that question is determined for the purposes of the proposed Telecommunications Act 1996.

Items 56 and 57 – Amendments to section 3 of the Telstra Corporation Act 1991

For the purposes of the Telstra Corporation Act 1991, items 56 and 57 insert definitions of ‘ACA’ and ‘ACCC’.

Subsection 9(4) of that Act, as proposed to be amended by items 58 and 59, will provide that any Ministerial directions to Telstra in relation to the exercise of Telstra’s powers will have effect despite any direction given, or determination made, by the ACA under the proposed Telecommunications Act 1996.

As a consequence of items 62 to 65, from 1 July 1997 the ACCC will assume responsibility for regulating Telstra’s charges under Part 6 of the Telstra Corporation Act.

Items 58 and 59 – Amendments to subsection 9(4) of the Telstra Corporation Act 1991

Under s. 9 of the Telstra Corporation Act 1991 the Minister may, after consultation with the Board of Telstra, give Telstra certain written directions in relation to the exercise of its powers.  Subsection 9(4) of that Act provides that any such directions given by the Minister have effect despite any direction given, or determination or order made, by AUSTEL under the Telecommunications Act 1991.

As the ACA will not be empowered to make orders under the proposed Telecommunications Act 1996, item 58 replaces the words ‘or order made, by AUSTEL’ in s. 9(4) with a reference to a determination made by the ACA.  Item 59 replaces the reference to the Telecommunications Act 1991 with a reference to the proposed Telecommunications Act 1996.

Items 60 to 66 – Amendments to sections 19, 22 and 24 of the Telstra Corporation Act 1991

Section 19 of the Telstra Corporation Act 1991 is an interpretation provision for the purposes of Part 6 of that Act dealing with the regulation of Telstra’s charges.  Subsection 19(1) defines ‘carrier charge’ for the purposes of Part 6 to mean ‘a charge for a telecommunications service or facility supplied by a carrier’.  That subsection also defines ‘carrier’ for the purposes of Part 6 to mean Telstra and its predecessors.  Subsection 19(2) provides that subject to Part 6 of the Act an expression in Part 6 has the same meaning as it has in the Telecommunications Act 1991.

Item 60 replaces the definition of ‘carrier charge’ in s. 19(1) with a definition defining ‘carrier charge’ for the purposes of Part 6 of the Telstra Corporation Act to mean a charge for a carriage service or a content service supplied by Telstra or a charge for a facility supplied by Telstra.  As a result of s. 19(2) of the Telstra Corporation Act, as proposed to be amended by item 61, the expression ‘carriage service’ will have the same meaning as it has in the proposed Telecommunications Act 1996.  ‘Carriage service’ is defined by cl. 7 of the Telecommunications Bill 1996 to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy.  The proposed definition of ‘carriage service’ has the same effect as the definition of ‘telecommunications service’ under the existing Telecommunications Act.

Also as a result of s. 19(2) of the Telstra Corporation Act, as proposed to be amended by item 61, the expression ‘content service’ will have the same meaning as it has in the proposed Telecommunications Act 1996.  ‘Content service’ is defined by cl. 15 of the Telecommunications Bill 1996 to mean:

(a)	a broadcasting service within the meaning of the Broadcasting Services Act 1992;

(b)	an on-line information service such as a dial-up information service;

(c)	an on-line entertainment service such as a video-on-demand service or an interactive computer game service;

(d)	any other on-line service such as an education service provided by a State or Territory government; or

(e)	a service of a kind specified in a Ministerial determination.

Section 22 of the Telstra Corporation Act deals with the alteration of Telstra’s charges that are subject to price control arrangements and provides that in certain circumstances the consent of AUSTEL is required to the proposed alteration.  Under s. 24 of that Act, the Minister may request AUSTEL to report to the Minister as to whether a proposed alteration to a carrier charge that is subject to notification or disallowance should be disallowed in the public interest.  From 1 July 1997, AUSTEL’s responsibilities under sections 22 and 24 will be carried out by the ACCC.  As a consequence, items 62, 63, 64 and 65 replace references in ss. 22 and 24 to ‘AUSTEL’ with references to ‘the ACCC’.

As a result of item 66, anything done by, or in relation to, AUSTEL under s. 22 or 24 of the Telstra Corporation Act before 1 July 1997 will have effect for the purposes of the Telstra Corporation Act as if it had been done by, or in relation to, the ACCC.

Schedule 2––Amendment of the Radiocommunications Act 1992

Part 1––Merger of the SMA and the ACA

This Part provides for minor amendments to the Radcom Act consequential on the merger of the SMA and the ACA.

Item 1 – Amendment of paragraph 4(e) of the Radiocommunications Act 1992

Section 4 of the Radcom Act provides an outline of the Act as an aid to the reader.  Paragraph 4(e) refers to Chapter 5 of the Act which deals with the establishment of the SMA.  Item 1 amends paragraph 4(e) to take account of the merger of the SMA and the ACA under the ACA Bill.

Item 2 – Amendment of section 5 of the Radiocommunications Act 1992

Item 2 inserts a definition of the ACA.

Item 3 – Amendment of section 5 of the Radiocommunications Act 1992 (definition of SMA)

Item 3 deletes the definition of SMA.

Item 4 – Replacement of subsection 231(2) of the Radiocommunications Act 1992

Section 231 of the Radcom Act provides an outline of Chapter 5.  Item 4 deletes 
s. 231(2) which refers to the Chapter dealing with the establishment of the SMA.  Those provisions are to be deleted by item 7 of Part 1 of Schedule 2 to this Bill and Part 5.1 of Chapter 5 is to be confined to matters relating to delegations.  This item reflects those changes.

Item 5 – Replacement of heading to Part 5.1 of the Radiocommunications Act 1992

This item substitutes a new heading for Part 5.1 to reflect the changes made to that Part by items 7, 8 and 9 of Part 4 of Schedule 2 of this Bill.

Item 6 – Replacement of heading to Division 1 of Part 5.1 of the Radiocommunications Act 1992

This item substitutes a new heading for Division 1 of Part 5.1 to reflect the changes made to that Part by items 7, 8 and 9 of Part 4 of Schedule 2 of this Bill.

Item 7 – Repeal of sections 232, 233, 234, 235, 236 and 237 of the Radiocommunications Act 1992

This item repeals these sections which deal with the establishment of the SMA.

Item 8 – Amendment of subsection 238(1) of the Radiocommunications Act 1992

Subsection 238(1) of the Radcom Act deals with the delegation of powers under that Act.  Section 49 of the ACA Bill provides for the ACA to delegate its powers and functions.  This item makes it clear that the delegation power under the Radcom Act is in addition to the delegation power under the ACA Bill.

Item 9 – Amendment of subsections 238(2) and (3) of the Radiocommunications Act 1992

This is a formal amendment omitting a reference to the Spectrum Manager and substituting a reference to the ACA.

Item 10 – Repeal of Division 2 of Part 5.1 of the Radiocommunications Act 1992

Division 2 of Part 5.1 provides for the constitution of the SMA.  This item repeals the Division to take account of the merger of the SMA and the ACA under the ACA Bill.

Item 11 – General amendments to the Radiocommunications Act 1992

This item amends various provisions of the Radcom Act by deleting references to the SMA, and derivatives of such references, and substituting them with references to the ACA and equivalent derivatives.

Part 2––Consequential amendments

This Part provides for various formal consequential amendments of the Radcom Act to take account of the repeal of the Telecommunications Act 1991 and the enactment of the proposed Telecommunications Act 1996 and the proposed Australian Communications Authority Act 1996, and the other amendments of the Radcom Act made by this Bill.

Items 12 to 20

Items 12 to 20 make amendments of this nature.

Item 21  – Transitional––charge determinations

This item gives transitional operation to charges determinations made by the SMA under section 293 of the Radcom Act and deems those determinations to be made under section 52 of the proposed ACA Act.

Part 3 – Public inquiries

This Part repeals section 261 of the Radcom Act, which deals with public inquiries on radiocommunications matters, and inserts new provisions, based on Part 25 of the proposed Telecommunications Act 1996 which deals with the holding of public inquiries by the ACA on telecommunications matters.  The new provisions will allow the ACA to hold hearings for the purposes of a public inquiry and to require it to prepare a report setting out its findings as a result of the inquiry.  Public inquiries may be conducted either on the initiative of the ACA or following a request from the Minister.

Item 22 – Amendment of subsection 258(2) of the Radiocommunications Act 1992

Section 258 of the Radcom Act deals with the preparation by the SMA of a discussion paper relating to an inquiry to be held, making that paper publicly available.  Subsection 258(2) requires the SMA to ensure copies of the paper are available or purchase.  Item 22 repeals subsection (2) and inserts new subsections (2) and (3) to require the ACA to make copies of such a discussion paper available for purchase, allowing the ACA to charge a reasonable price for such copies (subsection (2)); or alternatively, to publish the paper in an electronic form, and charge for access to that electronic form (subsection (3)).

Item 23 – Amendment of section 261 of the Radiocommunications Act 1992

This item repeals section 261 of the Radcom Act and substitutes it with new sections 261, 261A, 261B, 261C and 261D.

Proposed new section 261 – Hearings

The ACA will be able to hold hearings for the purposes of a public inquiry (subclause 261(1)).  The ACA may, for example, choose to hold hearings to receive public submissions about a matter to which the inquiry relates or to provide a forum for public discussion of issues relevant to that matter (subclause 261(2)).

A hearing may be constituted by such ACA members as the ACA Chairman determines or by ACA delegates ie, ACA members, associate members, ACA staff members or persons whose services have been made available to the ACA by a Commonwealth Department, agency or company and to whom relevant ACA functions and powers have been delegated (subclause 261(3)).  

The Chairman is to preside at all hearings at which he or she is present (subclause 261(4)).  If the Chairman is not present at a hearing and an ACA delegate does not constitute the ACA for the purposes of the hearing, the member determined by the Chairman as the presiding member is to preside (subclause 261(5)).

The ACA will be able to regulate the conduct of proceedings at a hearing in whatever way it considers appropriate (subclause 261(6)).

Proposed new section 261A – Hearing to be in public except in exceptional cases

As a general rule, hearings will be required to be held in public (subclauses 261A(1) and (2)).  If the hearing is to be conducted in public, the ACA will be required to give reasonable public notice of the conduct of the hearing (subclause 261A(4)).

A hearing, or part of a hearing, will, however, be able to be conducted in private if the ACA is satisfied that confidential evidence may be given or other confidential matters may arise during the hearing or that hearing a matter, or part of a matter, in public would not be conducive to the due administration of the proposed Telecommunications Act 1996 (subclause 261A(3)).

Proposed new section 261B – Confidential material not to be published

The ACA will be able to order that confidential evidence or other confidential material presented to a public hearing or confidential material in a written submission lodged with the ACA should not be published or should be disclosed only in restricted circumstances (subclauses 261B(1) and (2)).

The intentional or reckless failure, without reasonable excuse, to comply with such an order will be an offence punishable on conviction by a fine not exceeding 50 penalty units (subclauses 261B(3) and (4)) (under section 4AA of the Crimes Act 1914 a penalty unit is worth $100).

Proposed new section 261C – Direction about public hearings

If a hearing, or part of a hearing, takes place in private, the ACA will be required to give directions as to those who may be present at the hearing or the part of the hearing and will be able to give directions restricting the disclosure of evidence or other material presented at the hearing or part of the hearing (subclauses 261C(1) and (2)).

The intentional or reckless failure, without reasonable excuse, to comply with a direction regarding who may be present at a hearing or part of a hearing will be an offence punishable on conviction by a fine not exceeding 10 penalty units (subclauses 261C(3) and (4)(a)).

The intentional or reckless failure, without reasonable excuse, to comply with a direction restricting the disclosure of evidence or other material will be an offence punishable on conviction by a fine not exceeding 50 penalty units (subclauses 261C(3) and (4)(b)) (under section 4AA of the Crimes Act 1914 a penalty unit is worth $100).

Proposed new section 261D – Reports on inquiries

The ACA will be required to prepare a report setting out its findings as a result of any public inquiry it holds (subclause 261D(1)).

If the Minister directed the holding of the inquiry, the ACA will be required to give a copy of its report to the Minister (subclause 261D(2)).  If the inquiry is held on the ACA’s own initiative, the ACA will be required to publish the report (subclause 261D(3)).

The ACA’s report will not be required to include:

•	confidential material;

•	material the disclosure of which is likely to prejudice the fair trial of a person; or

•	material that is subject to an ACA order or an ACA direction prohibiting or restricting its publication or disclosure (subclause 261D(4)).

Part 4––Standards and other technical regulation

This Part provides for amendments to the Radcom Act which primarily take account of the enactment of Part 21 of the new Telecommunications Act 1996 that sets out the technical regulation regime for telecommunications.  The purpose of the amendments is to align as closely as possible the technical regulation regime for radiocommunications with the new regime for telecommunications.

This Part also contains a number of amendments relating to enabling inspectors to enter premises etc in order to adjust an emergency position indicating radio beacon (EPIRB) that has spontaneously activated.

Items 24 and 25 – Amendment of section 5 of the Radiocommunications Act 1992 – new definitions of apply and label

Section 5 of the Radcom Act provides for definitions of terms used in the Act.  Items 24 and 25 insert new definitions for the term ‘apply’ and ‘label’.

Item 26 – Amendment of section 5 of the Radiocommunications Act 1992 (definition of compliance certificate)

Section 5 of the Radcom Act provides for definitions of terms used in the Act.  Item 26 repeals the definition of ‘compliance certificate’ consequential on the repeal of section 184 (which deals with the issue of such certificates by the SMA) under item 54.

Item 27 – Amendment of section 5 of the Radiocommunications Act 1992 (definition of recognised testing authority)

Section 5 of the Radcom Act provides for definitions of terms used in the Act.  Item 27 repeals the definition of ‘recognised testing authority’ consequential on the insertion, by item 53, of new section 183 which provides a new definition of that term.

Item 28 – Insertion of new section 9A of the Radiocommunications Act 1992

This item inserts a new section 9A into the Radcom Act to provide for definitions for the terms ‘label’ and ‘applied’.  The meaning of ‘applied’ is wider in scope than that of ‘affix’ as currently used in section 182 which allows the SMA to require a person to ‘affix’ a label to a device.  The broader term ‘applied’ takes account of devices that may not, because of their size or nature, allow a label to be ‘affixed’ to them.

Item 29 – Amendment of paragraph 101(1)(b) of the Radiocommunications Act 1992

Section 101 of the Radcom Act deals with the testing of radiocommunications devices.  Item 29 amends paragraph 101(1)(b) to take account of the merger of the SMA with the ACA and role of recognised testing authorities in testing devices (see new section 183 at item 53).

Item 30 – Amendment of paragraph 163(1)(a) of the Radiocommunications Act 1992

Section 163 of the Radcom Act sets out certain consultation requirements in relation to the making of standards under section 162.  Item 30 allows the ACA to consider those requirements to have been satisfied through the conduct of consultation by the Standards Association of Australia or another body or association with whom the ACA has made an arrangement for the preparation of standards (see item 31).

Item 31 – Amendment of subsections 163(2) and (3) of the Radiocommunications Act 1992

Section 163 of the Radcom Act sets out the procedures that must and may be followed by the SMA in making standards under section 162.  Item 31 inserts substitute subsections 163(2) and (3) to provide for certain procedures that the ACA may follow to accord with the procedures the ACA may follow in making technical standards under section 361 of the Telecommunications Act 1996.  The main element of these new procedures is the discretion for the ACA to make arrangements for a body or association to prepare and consult on draft standards.

In keeping with the theme that regulation that is generated from the industry which is to be regulated is more likely to benefit from the experience and expertise derived from industry input, the ACA is to have a discretion to make arrangements with a range of bodies or associations whereby those bodies or associations are responsible for the development of a draft standard, publishing it, consulting publicly on the draft, and reporting on that consultation to the ACA (subclause (2)).  The ACA can then take the final step of making the industry-developed standards into section 162 standards.  Subclauses (3) and (4) require the approval or determination respectively of a body for the purposes of subclause (2) to be published in the Gazette.

Item 32 – Amendment of paragraph 164(b) of the Radiocommunications Act 1992

This item provides for a formal amendment to paragraph 164(b) of the Radcom Act consequential on the amendment at item 34.

Item 33 – Amendment of subsection 165(1) of the Radiocommunications Act 1992

This item provides for a formal amendment to subsection 165(1) consequential on the amendment at item 34.

Item 34 – Amendment of subsection 165(2) of the Radiocommunications Act 1992

Subsection 165(2) of the Radcom Act provides that standards made under section 162 are taken to be a statutory rule within the meaning of the Statutory Rules Publication Act 1903.  That Act provides for such rules to be published in a statutory rules series. However, under subsection 165(1) a standard is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 which requires a notification of the making of a standard to be published in the Gazette.  For all other disallowable instruments made by the ACA there is no requirement for the instrument to be published in the statutory rules series.  This item repeals subsection 165(2) to remove that requirement.

Item 35 – Amendment of subsection 167(3) of the Radiocommunications Act 1992 and insertion of new subsections 167(3A) and (3B) of that Act

Section 167 of the Radcom Act provides for the SMA to issue permits for non-standard transmitters.  Subsection 167(3) sets out certain matter to which the SMA must have regard when deciding whether to issue a permit.

Item 35 repeals subsection 167(3) and substitutes new subsections (3), (3A) and (3B) to provide for matters to which the ACA must and may have regard when deciding whether to issue a permit - these are based on the matters set out in section 379 of the proposed Telecommunications Act 1996 in relation to the ACA deciding whether to issue a connection permit under that Act.

New subsection 167(3) sets out the matters to which the ACA may have regard in deciding whether to issue a permit.  Those matters relate to whether the purpose for the proposed permit relates to certain matters such as education or research (paragraph (a)); testing of devices (paragraph (b)); or the demonstration of devices (paragraph (c)).  It should be noted that the specification of these matters in this new subsection is not meant to limit the matters to which the ACA may have regard in deciding whether to issue a permit (see new subsection (3B)).

New subsection 167(3A) sets out the matters to which the ACA must have regard in deciding whether to issue a permit.  These matters relate to the health or safety of persons operating, working on, using services supplied by the means of devices, or otherwise are reasonably likely to be affected by the operation of devices.

Item 36 – Amendment of paragraph 169(4)(a) of the Radiocommunications Act 1992

Section 169 of the Radcom Act provides for the duration of permits for non-standard transmitters.  Paragraph 169(4)(a) allows a longer period than 12 months to be prescribed in the regulations.  This is a matter more appropriately dealt with by the ACA in a disallowable determination.  Accordingly, item 36 repeals paragraph (a) and substitutes a new paragraph (a) to allow the ACA to determine a period longer than 12 months for permits.  (Item 37 inserts a further new subsection to make such a determination disallowable.)

Item 37 – Insertion of new subsections 169(5), (6) and (7) of the Radiocommunications Act 1992

This item inserts new subsections (5), (6) and (7) into section 169 which deals with the duration of permits for non-standard transmitters.

New subsection (5) makes a determination by the ACA under new paragraph (4)(a) of a period longer than 12 months a disallowable instrument.

Paragraph (3)(b) allows a permit to be issued for an indefinite period.  New subsections (6) and (7) allow the ACA, by written notice to the permit holder, to change a permit with an indefinite duration to a permit with a finite duration (new subsection (6).  The specified day of expiry must post-date the date of the notice (new subsection (7)).  Such a change in permit duration may be necessary because of changes in circumstances such as developments in technology that render previously innocuous transmitters into potentially interference causing transmitters.

Item 38 – Insertion of new section 169A of the Radiocommunications Act 1992

This item is consequential on the insertion of new subsections 169(6) and (7) by item 37 to allow reduction of an indefinite permit period to a finite one.  Item 38 inserts a new section 169A to provide that if, apart from new section 169A, the operation of the proposed amendment at item 37 would result in the acquisition of property from a person otherwise than on just terms in contravention of paragraph 51(xxxi) of the Constitution, the Commonwealth will be liable to pay reasonable compensation to the person in respect of the acquisition (subsections (1) and (3)).

If the Commonwealth and the person cannot agree on the amount of the compensation, the person will be able to institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the Court determines (subsection (2)).

Item 39 – Amendment of subparagraph 171(3)(b)(i) of the Radiocommunications Act 1992

This is a formal amendment consequential on the amendment of section 167 at item 35.

Item 40 – Insertion of new subparagraph 171(3)(b)(ia) of the Radiocommunications Act 1992

This is a formal amendment consequential on the amendment of section 167 at item 35.

Item 41 – Amendment of subsection 182(1) of the Radiocommunications Act 1992

Section 182 of the Radcom Act allows the SMA to require a person to ‘affix’ a label to a device.  The meaning of ‘affix’ is limited in scope.

Item 41 deletes ‘affix’ and replaces it with ‘apply’ to reflect the new definition of the derivative of that term (‘applied’) inserted in section 5 of the Act which is wider in scope than that of ‘affix’ as currently used in section 182.  The broader term ‘apply’ takes account of devices that may not, because of their size or nature, allow a label to be ‘affixed’ to them.

Item 42 – Amendment of subsection 182(1B) of the Radiocommunications Act 1992

This is a formal amendment consequential on the amendment of section 182 at item 41.

Item 43 – Insertion of new subsection 182(2A) of the Radiocommunications Act 1992

Section 182 of the Radcom Act (as amended by item 41) allows the ACA to require a person to ‘apply’ a label to a device.

This item inserts a new subsection (2A) into section 182, based on proposed subsection 392(3) of the Telecommunications Act 1996, which allows the ACA to specify in an instrument how a label is to be applied to the device.  For example, it could specify the size and method of applying a label to the specified device.

Item 44 – Amendment of subsection 182(3) of the Radiocommunications Act 1992

Subsection 182(3) of the Radcom Act allows the SMA to specify that a labelling requirement does not apply to an imported device if it has affixed to it a label indicating compliance with the requirements of the laws of another country.  This item omits the reference to ‘requirements of laws of another country’ and substitutes a new reference, based on proposed subsection 392(4) of the Telecommunications Act 1996 which provides that an instrument under subsection 182(1) may allow that the labelling requirement does not apply to equipment or cabling bearing specified international labels or labels of  another country.  This will allow for those situations where Australia is a signatory to an international agreement, or has a mutual recognition agreement with another country, that provides for the recognition of labels.  For example, it will facilitate visiting end-users to use an overseas-approved type of amateur transmitter while in Australia without the need for separate compliance checking.

Item 45 – Amendment of subsection 182(4) of the Radiocommunications Act 1992

Subsection 182(4) of the Radcom Act allows the SMA to specify requirements that must be met before applying a label required under subsection 182(1).

Item 45 repeals subsection (4) and inserts a new subsection (4), based on proposed subsection 392(5) of the Telecommunications Act 1996, to allow a notice under subsection 182(1) to specify certain requirements that must be met before a manufacturer or importer applies a label to a device.  It is through these means that the ACA is to facilitate industry self-regulation of compliance with the technical regulation regime.  Under this new subclause (4), the ACA will be able to require: that a certificate be obtained from a certification body stating that the device complies with an applicable section 162 standard (paragraph (a)); the testing of a device by a recognised testing authority (see item 53) for compliance with an applicable section 162 standard (paragraph (b)); that a written statement be obtained from a competent body (see item 53) certifying that reasonable efforts have been made to avoid a contravention of an applicable section 162 standard (paragraph (c)); or that the manufacturer or importer make a written declaration that all other pre-labelling requirements have been met, known in the industry as ‘self-declaration’ paragraph (d)).

Item 46 – Amendment of subsection 182(4A) of the Radiocommunications Act 1992

This is a formal amendment consequential on the amendment of section 182 at item 41.

Item 47 – Amendment of subsection 182(4A) of the Radiocommunications Act 1992

This is a formal amendment consequential on the amendment of paragraphs 182(4A)(a) and (b) at items 48 and 49.

Items 48 and 49 – Amendment of paragraphs 182(4A)(a) and (b) of the Radiocommunications Act 1992

These items amend paragraphs 182(4A)(a) and (b) to align the requirement regarding quality assurance programs with that in new subsection 392(6) of the Telecommunications Act 1996.

Item 50 – Amendment of paragraph 182(4A)(b) of the Radiocommunications Act 1992

This is a formal amendment consequential on the amendment of subsection 182(4A) at item 51.

Item 51 – Amendment of subsection 182(4A) of the Radiocommunications Act 1992

This is a formal amendment consequential on the amendment of subsection 182(4) at item 45.

Item 52 – Repeal of subsection 182(6) of the Radiocommunications Act 1992

Subsection 182(6) of the Radcom Act provides that a notice under subsection 182(1) is taken to be a statutory rule within the meaning of the Statutory Rules Publication Act 1903.  That Act provides for such rules to be published in a statutory rules series. However, under subsection 182(5) a notice is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 which requires a notification of the making of a notice to be published in the Gazette.  For all other disallowable instruments made by the ACA there is no requirement for the instrument to be published in the statutory rules series.  This item repeals subsection 182(6) to remove that requirement.

Item 53 – Replacement of section 183 of the Radiocommunications Act 1992

Section 183 of the Radcom Act provides for the determination of recognised testing authorities.  Item 53 repeals section 183 and inserts new sections 183 and 183A, based on proposed sections 393 and 394 of the Telecommunications Act 1996, to provide for the determination of recognised testing authorities (new section 183) and the determination of certification bodies (new section 183A).

New section 183 allows the ACA to determine a person or association to be an accreditation body for the purposes of the section (subclause (1)).  The determination is to be done by gazettal notice.  When making such a determination the ACA is expected to take account of relevant Government policy.

An accreditation body may, by written instrument, determine a person to be a recognised testing authority for the purposes of Division 7.  Recognised testing authorities test equipment or cabling for compliance with a standard made under section 162 and issue tests results.

An accreditation body (new section 183A) may also, by written instrument, determine a person or association to be a competent body.  Competent bodies issue statements to the effect that reasonable efforts have been made to avoid a contravention of a standard made under section 162.  Such a statement could be useful in circumstances where because of the size or location of certain devices, or for some other reason, it is not possible to conduct a proper test of the devices for compliance with a section 162 standard, and an assessment is made based on other material such as the design documents, etc.

Item 54 – Repeal of section 184 of the Radiocommunications Act 1992

This item repeals section 184 of the Radcom Act.  Section 184 provides for the SMA to issue compliance certificates that certify that devices comply with specified section 162 standards.  The function is no longer to be performed by the ACA in line with the amendments, such as that at item 45, which move the technical regulation regime towards an industry self-regulation model.  Such a model accords with the technical regulation regime for telecommunications provided under Part 21 of the new Telecommunications Act 1996.

Item 55 – Repeal of section 185 of the Radiocommunications Act 1992

The repeal of section 185 of the Radcom Act made by item 55 is consequential on the repeal of section 184 at item 54.

Item 56 – Amendment of paragraph 186(b) of the Radiocommunications Act 1992

This is a formal amendment consequential on the amendment of section 182 at item 41.

Item 57 – Amendment of section 186 of the Radiocommunications Act 1992

This item removes all references to ‘sell or’ from section 186.  This amendment has been made because the term ‘supply’ is considered to cover the concept of selling.

Items 58 to 61 – Amendment of sections 186, 187 and 187A of the Radiocommunications Act 1992

These are formal amendments consequential on the amendment of section 182 at item 41.

Item 62 – Insertion of new section 188A of the Radiocommunications Act 1992

This item inserts a new section 188A that prohibits the use of certain symbols, relating to compliance with radiocommunications or telecommunications standards, other than in accordance with the provisions of the Radcom Act or the new Telecommunications Act 1996 (subsections (1) and (6)).  Breach of this prohibition is an offence the penalty for which is a maximum fine of 30 penalty units (subsection (2)) (under section 4AA of the Crimes Act 1914 a penalty unit is worth $100). Subsection (3) is an interpretive provision that makes it clear that the use of any term in subsection (1) is not meant to limit the meaning of any other term used in that provision.

However, this clause does not purport to interfere with any pre-existing trade mark or design rights, or uses that were in good faith that could have been protected by passing off actions (subsections (4) and (5)).  The ACA may make a written determination that the prohibition does not apply to a person who uses or applies a protected symbol for a particular purpose (subsection (7)).  The meaning of protected symbol is defined in subsection (8).

Subsection (9) is important to the operation of the labelling regime in that it provides that the application of a label, containing a protected symbol referred to in paragraph (8)(a) or (b), to a device is taken to indicate that the device complies with all applicable section 162 standards.

Conversely, subsection (10) provides that the application of a label, containing a protected symbol referred to in paragraph (8)(c), to a device is taken to indicate that the device does not comply with any applicable section 162 standard.  Applicable section 162 standards are those that are specified in an instrument under subsection 182(1) requiring the device to be labelled (subclause (11)).

Determinations made under subsection (7) or (8) are disallowable instruments (subsection (12)).

Subsections (13) and (14) provide constitutional support for the operation of subsection (1).

Subsection (15) defines terms used in new section 188AA.

Items 63 to 65 – Amendment of paragraphs 277(1)(a), (c) and (e) of the Radiocommunications Act 1992

The amendments at these items are to enable inspectors to enter premises, vessels, aircraft or vehicles to adjust an emergency position indicating radio beacon (EPIRB) that has spontaneously activated.  The reason for these amendments are to meet those situations where emergency service organisations waste valuable time and resources responding to EPIRBs that have spontaneously activated only to find that it has been a false alarm.  These amendments will allow inspectors to turn off such EPIRBs.

Item 66 – Amendment of paragraph 279(1)(d) of the Radiocommunications Act 1992

This is a formal amendment consequential on the amendment of section 182 at item 41.

Item 67 – Insertion of new paragraph 285(qa) of the Radiocommunications Act 1992

This is a formal amendment consequential on the amendment of section 169 at item 37.

Item 68 – Amendment of subsections 300(1) and (4) of the Radiocommunications Act 1992

These are formal amendments consequential on the amendment of section 182 at item 41.

Item 69 – Replacement of existing section 314A of the Radiocommunications Act 1992 with a new section 314A 

Section 314A provides that an SMA determination or other instrument made under that Act may make provision for, or in relation to, a matter by applying, adopting or incorporating (with or without modifications) any matter contained in an instrument or other writing made by any person or body in Australia or elsewhere, as in force at a particular time or as in force from time to time.

Item 69 replaces s. 314A with a new provision based on s. 407 of the Telecommunications Act 1991.  An identical provision is contained in proposed section 573 of the Telecommunications Act 1996.

Notwithstanding anything in the Acts Interpretation Act 1901 (see in particular s. 49A of that Act) or in the proposed Legislative Instruments Act 1996, regulations or any other instrument made under the Radcom Act will be able to make provision in relation to a matter by applying, adopting, or incorporating (with or without modifications) provisions of any Commonwealth Act or of any regulations or rules under a Commonwealth Act as in force at a particular time or as in force from time to time (proposed ss. 314A(1), (5) and (6)).

In addition, notwithstanding anything in the Acts Interpretation Act or in the proposed Legislative Instruments Act, regulations or any other instrument made under the Radcom Act will be able to make provision in relation to a matter by applying, adopting or incorporating (with or without modifications) contained in any other instrument or writing whatever as in force or existing at a particular time or from time to time even if the other instrument or writing does not yet exist when the instrument under the Radcom Act is made (proposed ss. 314A(2), (5) and (6)).  This power is essential for the ACA’s delegated legislation making, including the making of standards and the adoption of ITU Radio Regulations (with or without amendments).

The reference in proposed s. 314A(2) to ‘writing’ will include any mode of representing or reproducing words, figures, drawings or symbols in a visible form (see s. 25 of the Acts Interpretation Act 1901).

A reference in proposed s. 314A(2) to any other instrument or writing is defined widely to include a reference to an instrument or writing made by any person or body in Australia or elsewhere (including, for example, the Commonwealth, a State or Territory or one of its officers or authorities or an overseas entity) whatever its nature and whether or not it has legal force or effect.  Examples will include:

•	regulations or rules under a Commonwealth Act;

•	a State Act, a Territory law or regulations or any other instrument made under such an Act or law;

•	an international technical standard or performance indicator; or

•	a written agreement such as a contract or an arrangement or an instrument or writing made unilaterally (proposed s. 314A(3)).

Nothing in proposed s. 314A limits the generality of anything else in it (proposed 
s. 314(4)).

Item 70 – Transitional––procedures for making standards

This item makes it clear that the amendments of section 163 at items 30 and 31 do not apply to standards made before 1 July 1998 where the SMA has already commenced the procedures for making the standards.  This will ensure that any work done by the SMA or under an arrangement made under section 163 will not be wasted.

Item 71 – Transitional––section 186 of the Radiocommunications Act 1992

This item makes it clear that the amendment of section 196 at item 57 is not meant to imply that the use of the term ‘supply’ does not include supply by way of sale.

Schedule 3––Amendments consequential on the enactment of the Commonwealth Authorities and Companies Act 1996

Item 1 – Repeal of proposed section 10 of the Australian Communications Authority Act 1996

If the CAC Bill is passed and commences on or after 1 July 1997, cl. 10 of the ACA Bill will be repealed and cl. 12 of the ACA Bill will be amended to require the ACA to perform its functions in a manner consistent with any directions given by the Minister under subcl. 12(1) in relation to the performance of the ACA’s functions and the exercise of its powers (items 1 and 3 of Schedule 3 to the Bill).  The ACA will also be required to perform its functions in a manner consistent with proposed s. 28 of the CAC Act.  This provision allows the Minister to notify ACA members, after consultation with them, of general policies of the Commonwealth Government that are to apply to the ACA.  Proposed s. 28 of the CAC Act is intended to cover the notification of government policies that are applicable to the Commonwealth public sector in general, such as policies on equal employment opportunity.

Item 2 – Repeal of proposed section 11 of the Australian Communications Authority Act 1996

If the CAC Bill is passed and commences on or after 1 July 1997, cl. 11 of the ACA Bill will be repealed and proposed s. 28 of the CAC Act will operate.

Item 3 – Amendment of proposed section 12 of the Australian Communications Authority Act 1996

If the CAC Bill is passed and commences on or after 1 July 1997, cl. 12 of the ACA Bill will be amended to provide that:

(a)	the ACA must perform its functions in a manner consistent with any directions given by the Minister under subcl. 12(1) in relation to the performance of the ACA’s functions and the exercise of its powers; and

(b)	cl. 12 does not affect the application of proposed s. 28 of the CAC Act, which allows the Minister to notify ACA members, after consultation with them, of general policies of the Commonwealth Government that are to apply to the ACA

Item 4 – Amendment of proposed subsection 15(1) of the Australian Communications Authority Act 1996

If the CAC Bill is passed and commences on or after 1 July 1997, a Note will be added to the end of subcl. 15(1) to the effect that the CAC Act applies to the ACA and that that Act deals with matters relating to Commonwealth authorities, including reporting and accountability, banking and investment and conduct of officers.

Item 5 – Amendment of proposed section 19 of the Australian Communications Authority Act 1996

If the CAC Bill is passed and commences on or after 1 July 1997, a new subcl. 19(6) of the ACA Bill will be added to the effect that, as a general rule, an associate member of the ACA will be taken not to be a director of the ACA for the purposes of the CAC Act.  This will mean, for example, that an associate member will not need to be involved in the preparation of annual reports or estimates of receipt and expenditure (item 5).  The exception to this general rule is contained in the replacement to cl. 30 of the ACA Bill, to take effect on the commencement of the CAC Act, which will require associate members to disclose material personal interests (see item 6 below).

Item 6 – Repeal of proposed section 30 of the Australian Communications Authority Act 1996

If the CAC Bill is passed and commences on or after 1 July 1997, cl. 30 of the ACA Bill will be repealed and replaced by a provision to the effect that for the purposes of proposed s. 21 of the CAC Act, associate members of the ACA will be taken to be directors of the ACA.

As a result of the operation of proposed s. 21 of the CAC Act, members and associate members of the ACA having a material personal interest in a matter that is being considered, or is about to be considered, by them will be required to disclose the nature of the interest at an ACA meeting.

This disclosure will have to be made as soon as possible after the relevant facts have come to the knowledge of the member or associate member and will be required to be recorded in the minutes of the meeting.

Unless the other members and associate members of the ACA or the Minister otherwise determine, the member or associate member disclosing the interest will not be able to be present during any deliberation, or to take part in any decision, on it.  Nor can that member or associate member be present during any deliberation on whether to make the determination or take part in making the determination.

Item 7 – Repeal of proposed paragraph 37(4)(d) of the Australian Communications Authority Act 1996

If the CAC Bill is passed and commences on or after 1 July 1997, paragraph 37(4)(d) of the ACA Bill will be replaced by a provision to the effect that the appointment of an ACA member or associate member may be terminated if the member or associate member fails, without reasonable excuse, to comply with proposed s. 21 of the CAC Act (in so far as that section relates to the ACA).  That provision requires members and associate members of the ACA having a material personal interest in a matter that is being considered, or is about to be considered, by them to disclose the nature of the interest at an ACA meeting.

Item 8 – Amendment of proposed subsection 37(6) of the Australian Communications Authority Act 1996

The appointment of all ACA members or of particular ACA members will be able to be terminated if the Minister is of the opinion that the ACA members have failed to comply with the requirement under cl. 48 of the ACA Bill to prepare a corporate plan or the annual reporting requirements under cl. 50 of that Bill and s. 63H of the Audit Act 1901 (subcls. 37(5) and (6) of the ACA Bill).  If the CAC Bill is passed and commences on or after 1 July 1997, the reference to s. 63H of the Audit Act 1901 will be replaced by a reference to proposed s. 9 of the CAC Act which will require ACA members to prepare an annual report (item 8).

Item 9 – Amendment of proposed section 37 of the Australian Communications Authority Act 1996

If the CAC Bill is passed and commences on or after 1 July 1997, a new subcl. 37(7) of the ACA Bill will added to the effect that if the Minister is of the opinion that ACA members have failed to comply with:

(a)	subsection 13(2) of the CAC Act (which requires the preparation of interim financial statements in accordance with the Finance Minister’s Orders) in so far as that subsection relates to the ACA; or

(b)	subsection 15(1) of the CAC Act (which requires the Minister to be notified of significant events) in so far as that subsection relates to the ACA; or

(c)	paragraph 16(1)(a) or (b) of the CAC Act (which requires the Minister to be kept informed about the ACA’s operations and to give the Minister such information in relation to those operations as he or she requires) in so far as those paragraphs relate to the ACA;

the Governor-General may terminate the appointment of all members or particular members.

Item 10 – Repeal of proposed subsection 40(3) of the Australian Communications Authority Act 1996

It is not appropriate for the ACA to be obliged to prepare financial statements under 
s. 50 of the Audit Act 1901.  The ACA will not, therefore, be taken to be a Department for the purposes of that provision. The ACA will be obliged to prepare financial statements under Part XI of the Audit Act (subcl. 40(3) of the ACA Bill).

If the CAC Bill is passed and commences on or after 1 July 1997, subcl. 40(3) will be repealed.  The ACA will then be subject to the reporting obligations under the CAC Act.

Item 11 – Amendment of proposed subsection 44(2) of the Australian Communications Authority Act 1996

Subclause 44(1) of the ACA Bill indicates how the ACA’s money may be applied.  This provision operates subject to subclause 44(2) which allows surplus money of the ACA (ie money that is not immediately required for the ACA’s purposes) to be invested on deposit with an approved bank, in Commonwealth securities and in any other manner approved by the Treasurer.

If the CAC Bill is passed and commences on or after 1 July 1997, subcl. 44(2) of the ACA Bill will be repealed and replaced by a provision to the effect that surplus money of the ACA may be invested in accordance with  proposed s. 18 of the CAC Act which will permit the ACA’s surplus money to be invested:

(a)	on deposit with the Reserve Bank, a bank authorised under the Banking Act 1959 to carry on banking business in Australia, a bank established by or under a State Act or any other bank that the Treasurer approves;

(b)	in Commonwealth, State or Territory securities;

(c)	in securities guaranteed by the Commonwealth, a State or a Territory; or

(d)	in any other manner approved by the Treasurer.

Item 12 – Repeal of proposed section 45 of the Australian Communications Authority Act 1996

The ACA will be required to prepare estimates, in such form as the Minister requires, of its receipts and expenditure for each financial year and for any other period specified by the Minister in a direction (subcl. 45(1) of the ACA Bill).

The Minister will be able to direct the ACA to submit these estimates to the Minister not later than the date specified by the Minister in the direction (subcl. 45(2) of the ACA Bill).

If CAC Bill is passed and commences on or after 1 July 1997, cl. 45 of the ACA Bill will be repealed.  Proposed s. 14 of the CAC Act will then operate.  As a result of that provision, the members of the ACA will be required to prepare estimates of receipts and expenditure for each financial year and for any other periods directed by the Minister.  These estimates will have to be in the form required by the Minister and be given to the Minister within the time that the Minister requires.

Item 13 – Amendment of proposed subsection 50(1) of the Australian Communications Authority Act 1996

Clause 50 of the ACA Bill deals with the matters which the ACA’s annual report prepared under s. 63H of the Audit Act 1901 must include.  If the CAC Bill is passed and commences on or after 1 July 1997, the reference in subcl. 50(1) to s. 63H of the Audit Act 1901 will be replaced by a reference to s. 9 of the CAC Act which will require the ACA members to prepare an annual report.

Item 14 – Amendment of paragraph 50(2)(a) of the Australian Communications Authority Act 1996

The ACA’s annual report will be required to include a copy of any Ministerial notification given to the ACA during the financial year under cl. 11 of the ACA Bill of general policies of the Commonwealth Government that are to apply in relation to the ACA (paragraph 50(2)(a) of the ACA Bill).

If the CAC Bill is passed and commences on or after 1 July 1997, the reference to cl. 11 of the ACA Bill will be replaced by a reference to proposed s. 28 of the CAC Act which will deal with compliance by Commonwealth authorities such as the ACA with general policies of the Commonwealth Government.

Item 15 – Amendment of proposed paragraph 55(1)(a) of the Australian Communications Authority Act 1996

The ACA will be required to maintain a public register of all Commonwealth Government policies of which the Minister has notified the ACA under cl. 11 of the ACA Bill (paragraph 55(1)(a) of the ACA Bill).

If the CAC Bill is passed and commences on or after 1 July 1997, the reference to cl. 11 of the ACA Bill will be replaced by a reference to proposed s. 28 of the CAC Act which will deal with compliance by Commonwealth authorities such as the ACA with general policies of the Commonwealth Government.

Schedule 4––Amendments consequential on the enactment of the Financial Management and Accountability Act 1996

The Financial Management and Accountability Bill 1996 (‘FMA Bill’) is one of a package of 3 Bills that are intended to replace the Audit Act 1901.  The FMA Bill is concerned with the regulatory/accounting/accountability framework for dealing with and managing the money and property of the Commonwealth.  Under the FMA Bill, the Universal Service Reserve will become part of the Reserved Money Fund.

The amendments to the proposed Telecommunications Act 1996 in Schedule 4 to the Bill, which are consequential on the enactment of the FMA Bill, will commence when the FMA Bill commences (cl. 2(4)).

Item 1 – Repeal of proposed section 202 of the Telecommunications Act 1996

Clause 202 of the proposed Telecommunications Act 1996 establishes an account called the Universal Service Reserve, which is a trust account for the purposes of s. 62A of the Audit Act 1901 and is to be administered by the Department of Communications and the Arts.

If the FMA Bill is passed and commences, item 1 will replace cl. 202 with a provision establishing a new Universal Service Reserve as a component of the Reserve Money Fund under the FMA Bill.  This new Reserve will also be administered by the Department.

Item 2 – Amendment of proposed section 203 of the Telecommunications Act 1996

Clause 203 of the proposed Telecommunications Act 1996 provides for certain funds, including amounts equal to amounts of universal service levy, to be paid into the Universal Service Reserve.

If the FMA Bill is passed and commences, item 2 will replace cl. 203 with a provision providing for the transfer to the new Universal Service Reserve from the Consolidated Revenue of similar funds.

Schedule 5 – Repeal of Acts

Schedule 5 to the Bill, when read with cl. 3, provides for the repeal of:

(a)	the Radiocommunications (Permit Tax) Act 1983, which is now defunct;
	
(b)	the Telecommunications Act 1991, which is to be replaced by the proposed Telecommunications Act 1996  – this Act will also deal with matters currently dealt with by the Telecommunications (Application Fees) Act 1991 which Schedule 5 will also repeal; and

(c)	related taxing legislation, which is to be replaced by new taxing legislation as part of the package of post-1997 telecommunications legislation.