2004

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY BILL 2004

EXPLANATORY MEMORANDUM

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

AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY BILL 2004

OUTLINE

The Australian Communications and Media Authority Bill 2004 (referred to in the explanatory memorandum as ‘the Bill’ or ‘the ACMA Bill’) provides for the merger of the Australian Broadcasting Authority (ABA) and the Australian Communications Authority (ACA) to form a single communications regulator, the Australian Communications and Media Authority (to be known as the ACMA).

The Bill makes only minimal changes to the existing regulatory frameworks that apply to the telecommunications and broadcasting sectors in order to provide for the merger of the ACA and the ABA.

The Bill provides for the ACMA to be established on proclamation, or 1 July 2005 if no proclamation has been made by that day. 

The formation of the ACMA is a response to convergence within the communications industry.  Digital technologies are reshaping traditional telecommunications and broadcasting industry sectors by allowing new types of devices and services, which in turn create new market opportunities.  Businesses are being forced to respond by restructuring the ways they do business, their offerings to their customers, and their relationships with other businesses.  Consumers have significantly different expectations about the types of services available, their costs and availability than they did a decade ago.

New regulatory structures are required to deal with these changes – it is becoming increasingly difficult for two separate regulators, one of which is primarily focused on infrastructure and carriage issues, with the other focused chiefly on content issues, to provide a holistic response to convergence.  A particular case in point is the emergence of third generation (3G) mobile phones which can deliver audiovisual services in addition to traditional voice and data applications.  The regulation of these services crosses the boundaries between the current responsibilities of the ABA and the ACA, which as a result are required to establish inefficient consultative structures to address consequential regulatory issues that could be better and more easily addressed by a single administrative structure. 

The Bill sets out the functions and powers of the ACMA.  Consistent with the idea that the merger of the ACA and the ABA will result in minimal changes to the telecommunications and broadcasting regulatory frameworks, the ACMA’s primary functions will be the telecommunications and spectrum management functions currently specified in sections 6 and 7 of the Australian Communications Authority Act 1997 (ACA Act) and the broadcasting, content and datacasting functions currently specified in section 158 of the Broadcasting Services Act 1992 (BSA).  The ACMA will also have the additional functions specified in section 8 of the ACA Act.

The Minister will have the power to give the ACMA written directions in relation to the performance of its functions and the exercise of its powers.  However, the Minister will only be able give the ACMA a direction in relation to ACMA’s broadcasting, content or datacasting functions, or its powers relating to those functions, that is general in nature except as otherwise provided in any other Act (for example, the Minister’s ability to give specific directions under subsections 19(3) and 36(2) of the BSA will not be affected by this limitation).  The power of the Minister to direct the ACMA will be equivalent to the current powers of the Minister to give directions in relation to the telecommunications, spectrum management and additional functions performed by the ACA (see section 12 of the ACA Act) and in relation to the functions of the ABA (see section 162 of the BSA). 

The ACMA will be a body corporate consisting of a Chair, a Deputy Chair and between one and seven other members.  The Minister may also appoint such associate members as he or she thinks fit for special purposes including inquiries, investigations and hearings. The ACMA’s staff will comprise persons appointed or employed under the Public Service Act 1999 and persons on loan from other Commonwealth Departments, authorities, Commonwealth controlled companies or bodies established under a law of the Commonwealth for a public purpose.  

In the interests of sound financial accountability and in recognition that the ACMA will be a publicly funded body which collects taxes on behalf of the Commonwealth, the members and staff of the ACMA will be a prescribed agency for the purposes of the Financial Management and Accountability Act 1997 (FMA Act) and the Chair of the ACMA will be Chief Executive of the agency for the purposes of the FMA Act.  The persons constituting the prescribed agency of ACMA will be able to enter into contracts on behalf of the Commonwealth in accordance with arrangements determined by the Chief Executive in accordance with the FMA Act and the Financial Management and Accountability Regulations 1997.   For example, the Chair of the ACMA, and members and staff acting under delegations from the Chair, will be able to engage consultants to assist the ACMA in the performance of its functions.

A member or associate member is to be appointed for a period of up to five years and is to be paid such remuneration as is determined by the Remuneration Tribunal.  A person will not be able to be appointed, or re-appointed, as a member or associate member of the ACMA if the sum of the person’s appointments as a member or an associate member of the ACMA exceeds 10 years.  Previous appointments as a member or associate member of the ACA or the ABA will count towards this period.  Previous appointments to the Australian Telecommunications Authority (AUSTEL), the Spectrum Management Agency (SMA) and the Australian Broadcasting Tribunal will not count towards this period.

The ACMA Bill includes standard provisions relating to meetings.  The ACMA will be able to hold such meetings as are necessary for the efficient performance of its functions.

The ACMA Bill allows the ACMA to establish one or more Divisions comprised of at least 3 members and determine the matters that a Division may deal with.  The establishment of Divisions will allow the ACMA to require groups of members to undertake a specific function or functions – an example would be where ACMA wishes to have members and associate members with a particular interest or experience in a function, to undertake that function.  A Division could also be set up to undertake a particular inquiry or investigation.  The number of Divisions, and their purpose, will be a matter for the ACMA to determine, and the ACMA will have the power to dissolve a Division or change the matters it deals with at any time.

If the Chair of the ACMA is not appointed to a Division, the Chair will be able to elect to be a member of the Division.  The ACMA will be able to delegate any or all of its functions and powers to a Division.  A Division will also be able to sub-delegate functions and powers delegated to it by the ACMA.  However, the ACMA will not be able to delegate, and a Division will not be able to sub-delegate, to a member, associate member, member of the ACMA staff or a person whose services have been made available to the ACMA, a power to make, vary or revoke an instrument that will be a legislative instrument for the purposes of the Legislative Instruments Act 2003 or certain specified powers under the BSA.  This will be consistent with the current limitations in the ACA Act and the BSA on the power of the ACA and the ABA to delegate certain powers. 

The ACMA will also be able to establish advisory committees to assist it in performing any of its functions.  The continued existence of the Consumer Consultative Forum, which was established by the ACA under section 52 of the ACA Act, is provided for by the Bill. 

Finally, the Bill provides for the protection of the ACMA name, acronym and any official symbol of the ACMA.

FINANCIAL IMPACT STATEMENT

The ACMA will be financed by Parliamentary appropriation.  In this regard, the FMA Act will allow the Minister for Finance and Administration or his or her delegate to issue drawing rights as to the amounts in which, and the times at which, money may be drawn by the ACMA.  Resource needs for the ACMA for 2005-06 and 2006-07 are to be the combined total from the forward estimates for the ABA and ACA.  Forward estimates for later years are to be settled through a review in the context of the 2007-08 Budget.  

The ACMA’s expenditure incurred in administering telecommunications-specific regulation is to be recovered from carriers via annual carrier licence fees.  The ACMA’s expenditure incurred in administering radiocommunications-specific regulation is to be recovered from the holders of radiocommunications receiver and transmitter licences and radiocommunications spectrum licences.  The ACMA will have the ability to cost recover expenditure incurred in relation to other specified functions.  The establishment of the ACMA is expected to be revenue neutral to both industry and the Australian Government.

ABBREVIATIONS

The following abbreviations are used in this explanatory memorandum:

ABA:			Australian Broadcasting Authority

ACA:			Australian Communications Authority

ACA Act:		Australian Communications Authority Act 1997

ACMA:		Australian Communications and Media Authority

ACCC:		Australian Competition and Consumer Commission

AIA:			Acts Interpretation Act 1901

Bill:			Australian Communications and Media Authority Bill 2004

BSA:			Broadcasting Services Act 1992

CAC Act:		Commonwealth Authorities and Companies Act 1997

FMA Act:		Financial Management and Accountability Act 1997

FMA Regulations:	Financial Management and Accountability Regulations 1997

LIA:			Legislative Instruments Act 2003

Minister:		Minister for Communications, Information Technology and the 			Arts

Radcom Act:		Radiocommunications Act 1992

Telecom Act:		Telecommunications Act 1997

NOTES ON CLAUSES

Part 1–– Preliminary

Clause 1 – Short title

Clause 1 provides for the citation of the Australian Communications and Media Authority Act 2004.

Clause 2 – Commencement

Clause 2 provides that each provision of the Bill (specified in column 1 of the table in clause 2) will commence, or will be taken to have commenced, on the day or at the time specified in column 2 of the table in clause 2.  

Item 1 of the table in clause 2 provides that clauses 1 and 2 and anything in the Bill that is not covered in the table will commence on the day on which the Bill receives the Royal Assent.  

Item 2 of the table provides that clauses 3 to 68 of the Bill will commence on proclamation, or 1 July 2005 if no proclamation has been made by that day.  Delayed commencement of the Bill will enable appointments to the Board of the ACMA to be arranged and any other transitional issues to be finalised prior to the establishment of the ACMA.  For ease of administration and transition between financial years, the default date on which the ACMA will be established is 1 July 2005.  However, item 2 also provides the option of the ACMA being established earlier by Proclamation if all the transitional issues relating to the merger of the ACA and the ABA are finalised before 1 July 2005 and it is desired that the ACMA be established as soon as that occurs.

Clause 3 – Definitions

Clause 3 sets out definitions of key terms used in the Bill.  Clause 3 includes a definition of ‘member’ and provides that a member means a member of the ACMA but does not include an associate member.  However, an associate member would be treated as a member if (and while) he or she is acting as a member under subclause 23(2). 

Clause 4 – When does an inquiry, investigation or hearing end?

Clause 4 would enable the end of an inquiry, investigation or hearing to be worked out for the purposes of a number of provisions in the ACMA Bill that refer to the end of an inquiry, investigation or hearing (see subcl. 21(3), 25(3) and (4)).

Clause 3 would define the meanings of ‘hearing’, ‘inquiry’ and ‘investigation’ to cover all of the different types of hearings, inquiries or investigations that may be undertaken by ACMA in the performance of its functions. 

Subclauses 4(3) and 4(5) are not intended to cover notification of the results of an investigation to a complainant in order to satisfy the requirements of natural justice.  Similarly, subclauses 4(2) and 4(4) are not intended to apply where a preliminary report has been completed and the requirements of natural justice (and in the case of subclause 4(4), section 180 of the BSA) require the ACMA to give persons whose interests would be adversely affected by the publication of a matter in the report an opportunity to make representations in relation to the matter. 

Clause 5 – When is there a vacancy? 

Clause 5 has two purposes.  First, it provides that for the purposes of a reference in the ACMA Bill to a vacancy in the office of a member, there are taken to be seven offices of members in addition to the Chair or the Deputy Chair (para. 5(a)).  This would enable the number of offices which are vacant to be determined at any one time, despite fluctuations in the number of members who have been appointed in addition to the Chair and the Deputy Chair of the AMCA (see clause 19 which provides for the membership of the ACMA to be comprised by a Chair, a Deputy Chair and at least one and up to seven members) or acting appointments.  For example, if there were four persons, other than the Chair and Deputy Chair, appointed as members, the effect of clause 5 would be that there would be three offices of members vacant.  The Minister would therefore be able to appoint three acting members in this circumstance under subcl. 23(3).  Similarly, if the office of the Chair were to became vacant, so that the Deputy Chair would act in the position of the Chair in accordance with paragraph 22(1)(a), the Minister would be able to appoint an acting Deputy Chair under paragraph 23(1)(a) and up to four acting members under subcl. 23(2).

Secondly, paragraph 5(b) provides that, for the purposes of a reference in the AIA to a vacancy in the membership of a body, there are taken to be seven offices of members in addition to the Chair and the Deputy Chair.  For example, subsection 33(2B) of the AIA provides that where an Act confers a power or function, or imposes a duty, on a body (whether incorporated or unincorporated), the exercise of the power or the performance of the function or duty is not be affected merely because of a vacancy or vacancies in the membership of the body (i.e. the performance of a function by the ACMA in circumstances where it is comprised of a Chair, a Deputy Chair and four other members would not be affected because there would be a vacancy in three offices of members). 

Part 2––ACMA’s establishment, functions, powers and liabilities

Division 1 – Establishment

Clause 6 – Establishment 

Clause 6 provides that the Australian Communications and Media Authority is established.

Division 2 – Functions

Clause 7 – ACMA’s functions

Clause 7 provides that the ACMA’s functions are those described in Division 2 of Part 2 of the Bill.  Division 2 provides for ACMA’s telecommunications functions (clause 8), spectrum management functions (clause 9), broadcasting, content and datacasting functions (clause 10) and additional functions (clause 11).

Clause 8 – ACMA’s telecommunications functions

Clause 8 sets out the ACMA’s telecommunications functions.  The functions specified in subclause 8(1) are the same as those currently given to the ACA by section 6 of the ACA Act but include the function of monitoring, and reporting to the Minister on, the operation of each Act specified in paragraph 8(1)(j) (paragraph 8(1)(k)).  Although the function expressed in paragraph 8(1)(k) would probably be covered by paragraph 8(1)(l), the function of monitoring and reporting to the Minister on the operation of the Acts listed in paragraph 8(1)(j)  would ensure that the ACMA’s telecommunications functions are expressed in a similar manner to the ACMA’s broadcasting, content and datacasting functions. Paragraph 10(1)(r) provides that the ACMA’s broadcasting, content and datacasting functions include monitoring and reporting to the Minister on the operation of the Acts listed in paragraph 10(1)(o) and (p), to the extent that each Act is specified, reflects current paragraph 158(n) of the BSA and paragraph 66(1)(d) of the Interactive Gambling Act 2001. 

Subclause 8(2) provides that an expression that is used in section 8 that is also used in the Telecom Act will have the same meaning in clause 8 as it has in that Act.  For example, the expression ‘telecommunications industry’ which is used in paragraphs 8(1)(c), (g) and (i) is defined in section 7 of the Telecom Act.

Clause 9 – ACMA’s spectrum management functions

Clause 9 sets out the ACMA’s spectrum management functions.  The functions specified in clause 9 are the same as those currently given to the ACA by section 7 of the ACA Act but include the function of monitoring, and reporting to the Minister on, the operation of each Act specified in paragraph 9(h) (paragraph 9(i)).  Although the function expressed in paragraph 9(i) would probably be covered by paragraph 9(j), the function of monitoring and reporting to the Minister on the operation of the Acts listed in paragraph 9(h) would ensure that the ACMA’s spectrum management functions are expressed in a similar manner to the ACMA’s broadcasting, content and datacasting functions..    

Paragraphs 9(b), (c), (e), (f) and (g) refer to the terms ‘radiocommunications community’ and paragraph 9(d) refers to the term ‘radiocommunications’.  These terms are defined in clause 3 of the ACMA Bill.

Clause 10 – ACMA’s broadcasting, content and datacasting functions

Clause 10 sets out the ACMA’s broadcasting, content and datacasting functions.  The functions specified in clause 10 are essentially those specified in sections 158 and 159 of the BSA, with some minor changes that are not intended to alter the nature of the functions performed by the ABA and which will now be performed by the ACMA.  The expression ‘broadcasting, content and datacasting functions’ is intended to provide a broad description for the functions currently performed by the ABA in relation to the regulation of broadcasting, Internet content and datacasting under the BSA, although the ABA currently performs other functions under other Acts such as the Radcom Act and the Interactive Gambling Act which will become a function of ACMA under clause 10.  It is intended that this description would also cover any additional content-related functions that may be given to the ACMA in the future.

The ACMA’s broadcasting, content and datacasting functions are specified in clause 10 in a manner that is consistent with the ACMA’s telecommunications and spectrum management functions in clauses 8 and 9 but which ensures that all of the functions currently performed by the ABA are preserved in this provision. 

Paragraph 10(1)(a)  provides a general function of regulating broadcasting, Internet content and datacasting under the BSA which overlaps to some degree with some of the other functions in clause 10 but is consistent with the approach in clauses 8 and 9 of the Bill. The functions provided for in paragraphs 10(1)(b) to (m) are equivalent to the functions of the ABA provided for in paragraphs 158(b) to (l) of the BSA.  It is not necessary to provide a function similar to that provided for by paragraph 158(a) because this function relates to the provision of advice to the ACA in relation to spectrum plans and frequency band plans under the Radcom Act, and the designation of spectrum under section 31 of the Radcom Act.  The Australian Communications and Media Authority (Consequential and Transitional Provisions) Bill 2004 will make amendments to the Radcom Act to reflect the merger of the ACA and the ABA.  

Paragraph 10(1)(n) provides that the ACMA has the function of informing itself and advising the Minister on technological advances and service trends in the broadcasting industry, Internet industry and datacasting industry.  This is intended to replicate the function provided in paragraph 158(m) of the BSA, but with an additional reference to the Internet industry to ensure consistency with paragraph 10(1)(a).  

Paragraph 10(1)(o) provides that the ACMA has the functions conferred on it by or under the Australian Broadcasting Corporation Act 1983, the BSA, the Interactive Gambling Act 2001, the Radio Licence Fees Act 1964, the Special Broadcasting Service Act 1991, subsection 158F(1) of the Telecommunications (Consumer Protection and Service Standards) Act 1999 and the Television Licence Fees Act 1964.  Paragraph 10(1)(p) specifies particular functions that the ACMA will have under the Radcom Act which are currently part of the ABA’s functions and will therefore need to be included in the ACMA’s functions under clause 10. Currently, the ABA’s functions equivalent to those in paragraphs 10(1)(o) and (p) are provided for by section 159 of the BSA.  Section 159 provides that the ABA has (in addition to the functions specified in section 158) such other functions as are conferred on it by the BSA or another Act.  As clause 11 of the ACMA Bill will provide that the ACMA has such additional functions as are conferred on it by or under any other law, it is necessary to identify specifically the functions that ACMA will have under other laws which will be part of its broadcasting, content and datacasting functions.  This will ensure that the Minister’s ability to direct the ACMA in relation to the performance of its broadcasting, content or datacasting functions will be the same as the Minister’s current ability to direct the ABA in relation to the performance of its functions as provided by section 162 of the BSA.

In order to ensure consistency with the manner in which the ACMA’s telecommunications and spectrum management functions are expressed in clauses 8 and 9, paragraph 10(1)(q) will give the ACMA the function of reporting to, and advising, the Minister in relation to the broadcasting industry, the Internet industry and the datacasting industry (cf. paragraphs 8(1)(c) and 9(c)) and paragraph 10(1)(s) will give the ACMA the function of doing anything incidental or conducive to the performance of any of the functions specified in clause 10 (cf. paragraphs 8(1)(l) and 9(j)).  

Paragraph 10(1)(r) provides that the ACMA has the function of monitoring and reporting to the Minister on the operation of the Acts specified in paragraph 10(1)(o) or (p), to the extent that those Acts are specified.  This is intended to replicate the function provided by paragraph 158(n) of the BSA and paragraph 66(1)(d) of the Interactive Gambling Act 2001 but extends this function to the other Acts listed in paragraphs 10(1)(o) and (p), to ensure consistency with paragraphs 8(1)(k) and 9(i).  

Subclause 10(2) provides that an expression that is used in clause 10 and that is also used in the BSA will have the meaning it has in the BSA.  For example, the expression ‘broadcasting service’ which is used in paragraphs 10(1)(a), (i) and (m) is defined in section 6 of the BSA.

Clause 11 – ACMA’s additional functions

Clause 11 sets out the ACMA’s additional functions.  The functions specified in clause 11 are the same as those currently given to the ACA by section 8 of the ACA Act.   

Paragraphs 8(1)(aa) and (ab) of the ACA Act provide the ACA with the functions of preparing to provide, and providing, for the management of electronic addressing, pursuant to a written instruction by the Minister.  An instruction under paragraph 8(1)(aa) is a disallowable instrument for the purposes of section 46A of the AIA.  An instruction under paragraph 8(1)(ab) must be published in the Gazette. Paragraphs 11(1)(a) and (b) of the Bill would establish equivalent functions for the ACMA.  These instruments would be subject to the operation of the LIA. 

The ACMA’s additional functions would include the provision of technical services that relate to radiocommunications or telecommunications on a commercial basis provided this would not impede the ACMA’s capacity to perform its other functions (paragraphs 11(1)(c) and ss.11(2)).  ‘Radiocommunications’ and ‘telecommunications’ are defined broadly in clause 3 and, because the ACMA will have the statutory functions currently performed by the ABA, would cover services that relate to broadcasting and datacasting as well as the kind of services that the ACA was able to provide under paragraph 8(a) of the ACA Act.  Paragraph 11(1)(c) refers to the ACMA providing services on behalf of the Commonwealth under a contract made by the Commonwealth because the ACMA will not be able to enter into a contract to provide services.  Equally, as the ACMA would not own any facilities, paragraph 11(1)(c) refers to the ACMA providing facilities on behalf of the Commonwealth under a contract made by the Commonwealth. The persons constituting the prescribed agency of ACMA would be able to enter into contracts on behalf of the Commonwealth in accordance with arrangements determined by the Chief Executive in accordance with the FMA Act and the FMA Regulations.  

Division 3 – Powers and liabilities

Clause 12 – ACMA’s powers

Subclause 12(1) provides that the ACMA will have the power to do all things necessary or convenient to be done for or in connection with the performance of its functions, subject to the limitation that the ACMA would not have the power to acquire, hold or dispose of real or personal property, enter into contracts or lease the whole or any part of any land or building for its purposes.  Subclause 12(2) provides that a right to sue is not taken to be personal property for the purposes of paragraph 12(1)(a).  The purpose of subclause 12(2) is to make clear that the ACMA is able to exercise rights to sue in connection with its statutory functions.  

Item 64 of Schedule 1 to the Australian Communications and Media Authority (Consequential and Transitional Provisions) Bill 2004 would amend the FMA Regulations to provide that the members, associate members and staff of the ACMA, and any persons whose services are made available to the ACMA under clause 55, are a prescribed agency for the purposes of the FMA Act.  That item would also amend the FMA Regulations to provide that the Chair of the ACMA is the Chief Executive of that prescribed agency for the purposes of the FMA Act.  The Chair of the ACMA, acting under section 44 of the FMA Act, and members and staff acting under delegations from the Chair under section 53 of the FMA Act, would be able to enter into contracts on behalf of the Commonwealth (for example, a consultancy contract).  

Clause 13 – ACMA’s financial liabilities are Commonwealth liabilities

Subclause 13(1) provides that any financial liabilities of the ACMA will be taken to be liabilities of the Commonwealth.  ‘Financial liability’ is defined in subclause 13(2) to mean a liability to pay to a person an amount, where the amount, or the method for working out the amount, has been determined. 

Division 4 – Requirements relating to these functions and powers

Clause 14 – Minister may give directions to the ACMA

Under subclause 14(1), the Minister will have the power to give the ACMA written directions in relation to the performance of its functions and the exercise of its powers.  However, the Minister will only be able to give the ACMA a direction in relation to ACMA’s broadcasting, content or datacasting functions, or its powers relating to the those functions, that is general in nature (subclause 14(2)).  Subclause 14(5) makes it clear that the power to give a direction under subclause 14(1) will not limit any other powers the Minister has to give directions to the ACMA under the BSA.  For example, the Minister’s ability to give specific directions under subsections 19(3) and 36(2) of the BSA would not be affected by the limitation in subclause 14(2) on the Minister’s ability to give a direction to the ACMA.  

Subclauses 14(1) and (2) would be equivalent to the current powers of the Minister to give directions in relation to the telecommunications, spectrum management and additional functions performed by the ACA (see section 12 of the ACA Act) and in relation to the functions of the ABA as specified sections 158 and 159 of the BSA (see section 162 of the BSA). 

Subclause 14(3) provides that any direction given by the Minister under subclause 14(1) must be published in the Commonwealth Gazette. As a result of clause 67, the ACMA will be required to maintain a public register which includes any direction given to it by the Minister under clause 14.

Subclause 14(4) provides that the ACMA must perform its functions in a manner consistent with any directions given by the Minister under subclause 14(1) in relation to the performance of the ACMA’s functions and the exercise of its powers.  

Clause 15 – ACMA not otherwise subject to direction

Clause 15 provides that, except as otherwise provided by or under this Bill (e.g. clause 14 above) or other legislation, the ACMA will not be subject to direction by or on behalf of the Commonwealth.   Clause 15 is an equivalent provision to section 13 of the ACA Act and section 163 of the BSA, in that it is intended to prevent the executive arm of government from giving directions to the ACMA in relation to the performance of its statutory functions except as otherwise provided under the Bill or in another Act.

Clause 16 – Consistency with CER Trade in Service Protocol

Clause 16 provides that the ACMA must perform its broadcasting, content and datacasting functions, and the exercise of its powers relating to those functions, in a manner consistent with Australia’s obligations under the CER Trade in Services Protocol (as defined in the BSA).  Clause 16 would be an equivalent provision to paragraph 160(d) of the BSA.  

Clause 16 would ensure that the ACMA will be bound, as a matter of domestic law, to take international obligations under the Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations Trade Agreement (‘the CER Trade in Services Protocol’) into account in carrying out its broadcasting, content and datacasting functions.  This takes account of the High Court’s decision in the Project Blue Sky case (Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355) that found the then Australian Content Standard to be inconsistent with the CER Trade in Services Protocol.

The general law will apply to the ACMA in the performance of its functions in relation to treaties other than the CER Trade in Services Protocol.

Consistent with the decision in R v Australian Broadcasting Tribunal; ex parte 2HD (1979) 144 CLR 45, the ACMA would be required to perform its functions and exercise its powers in a manner consistent with the scope and purpose of the legislation conferring those functions and powers.

Clause 17 – ACMA to consult ACCC in relation to management of electronic addressing

Clause 17 is a provision equivalent to section 12A of the ACA Act.  

The purpose of clause 17 is to require the ACMA to consult with the ACCC before carrying out its functions under paragraphs 11(1)(a) and (b) (which give the ACMA additional functions in relation to preparing to provide for the management of electronic addressing or providing for the management of electronic addressing where instructed to do so by the Minister), where, in the ACMA’s opinion, that would have a significant effect on competition or consumer protection.  This requirement would ensure that the ACCC would continue to have a role in issues that have a significant effect on competition or consumer protection in relation to the management of electronic addressing.

Part 3 – ACMA’s constitution and membership

Division 1 – Constitution

Clause 18 – ACMA’s constitution

The ACMA will be a body corporate, with perpetual succession.  It will also have a seal and be able to sue and be sued in its corporate name (subcl. 18(1)).  

The ACMA’s seal is to be kept in safe custody and must not be used except as authorised by the ACMA (subcl. 18(2)).

All courts, judges and other persons acting in a judicial capacity will be required to take judicial notice of the imprint of the ACMA’s seal on a document and presume that the imprint was duly affixed (subcl. 18(3)).

Division 2 – Membership

Subdivision A – Members

Clause 19 – Membership

The ACMA will consist of a Chair, a Deputy Chair and between one and seven other members.  The Minister will also be able to appoint as many associate members of the ACMA as he or she thinks fit (see cl. 24).

Clause 20 – Appointment of members

The ACMA’s members will be appointed by the Governor-General (subcl. 20(1)).  The Chair and the Deputy Chair are to be appointed as full-time members (subcl. 20(2)) and other members may be appointed either as full-time or as part-time members (subcl. 20(3)).  

The Minister, acting on the advice of the ACMA, will be able to assign a part-time member on a full-time basis to an inquiry, investigation or hearing (subcl. 20(4)) and the member will be taken to be a full-time member until the end of the inquiry, investigation or hearing (subcl. 20(5)).  Clause 3 of the Bill defines the terms ‘hearing’, ‘inquiry’ and ‘investigation’ for the purposes of the Bill and clause 4 determines when the end of a hearing, inquiry or investigation occurs.  The restriction on a full-time member engaging in paid employment outside their duties without the Chair’s approval (see subcl. 31(2)) will not apply to a part-time member who has been assigned to an inquiry, investigation or hearing under subclause 20(4).  Similarly, paragraph 34(5)(b), which allows a full-time member or full-time associate member’s appointment to be terminated if that member or associate member engages in outside paid employment without the Chair’s approval, will not apply to a part-time member who has been assigned to an inquiry, hearing or investigation under subclause 20(4).

If subclause 31(2) and paragraph 34(5)(b) were to apply to a part-time member (who would usually have outside employment) who had been assigned on a full-time basis to a particular inquiry, investigation or hearing, the member would be required to resign from any outside position, unless the Chair agreed that continuation of that employment was acceptable.  This would be an inappropriate imposition on a part-time member in circumstances where the assignment as a full-time member would only be temporary.

Clause 21 – Period of appointment for members

Subclause 21(1) provides that a member will hold office for the period specified in his or her instrument of appointment.  This period must not exceed 5 years.  

A person will be able to be appointed as a member more than once, subject to the limitation that a later appointment must not result in the sum of the person’s total periods of appointment exceeding 10 years (subcl. 21(2)).  This would include any period of appointment (including non-consecutive appointments) as a member or an associate member of the ACMA (paragraph 21(4)(a)).  Previous appointments as a member, or associate member, of the ABA or the ACA (but not AUSTEL which was the body corporate that was continued in existence as the ACA as a result of section 14 of the ACA Act, nor to the Spectrum Management Agency or the Australian Broadcasting Tribunal) will also count towards the 10-year limit.  

Despite the limitations on a member’s period of appointment in subclauses 21(1) and (2), if the member is conducting, or is part of the panel conducting, an inquiry, hearing or investigation the Minister will be able to extend the member’s appointment until the end of the inquiry, investigation or hearing (subcl. 21(3)).  Clause 3 of the Bill defines ‘inquiry’, ‘investigation’ and ‘hearing’ and clause 4 determines when the end of an inquiry, investigation or hearing occurs. For example, if a member had been appointed for a five year period ending on 30 June of a particular year, and the member was part of a panel conducting an inquiry under Part 25 of the Telecom Act that would continue until after 30 June, the Minister would be able to extend the member’s appointment until the end of the inquiry by written instrument.  The member’s appointment would end at the end of the day on which the ACMA completes the preparation of a report about the inquiry under section 495 of the Telecom Act (see clause 4 of the Bill).

Clause 22 – Acting Chair

The Deputy Chair, or the Acting Deputy Chair, is to act as the Chair during a vacancy in the office of Chair or during any period, or during all periods, when the Chair is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office (subcl. 22(1)).

While the Deputy Chair is acting as the Chair, the Deputy Chair will have, and may exercise, all the Chair’s powers and would be required to perform all of the Chair’s functions.  The ACMA Act and all other Acts would apply to the Deputy Chair as if he or she were the Chair (subcl. 22(2)).  Anything done by or in relation to the Chair when purporting to act under clause 22 will not be invalid merely because the occasion to act had not arisen or had ceased (subcl. 22(3)).  

Clause 23 – Acting appointments – members other than the Chair

The Minister will be empowered to appoint a member to act as the Deputy Chair during a vacancy in the office of Deputy Chair or during any period, or during all periods, when the Deputy Chair is acting as the Chair, is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office (subcl. 23(1)).

The Minister will be empowered to appoint a person to act as a member (other than as Chair or Deputy Chair) during a vacancy in the office of a member or during any period, or during all periods, when a member is acting as the Deputy Chair, is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office (subcl. 23(2)).

A defect or irregularity in connection with a person’s appointment to act under clause 23 will not invalidate anything done by the person when purporting to act under this clause.  Nor will certain other technicalities viz. the occasion for the appointment not having arisen, the appointment ceasing to have effect and the occasion for the person to act not having arisen or having ceased (subcl. 23(3)).

Section 33A of the AIA contains further provisions dealing with acting appointments which are relevant to acting appointments made under clause 23.  The effect of these provisions is that:

(a)	an acting appointment may be expressed to have effect only in the circumstances specified in the instrument of appointment;

(b)	the appointer may determine the terms and conditions of the appointment, including remuneration and allowances and terminate the appointment at any time;

(c)	where the appointment is to act in a vacant office, the appointee must not continue to act in the office for more than 12 months;

(d)	where the appointee is acting in an office other than a vacant office and the office becomes vacant while the appointee is acting then, unless his or her instrument of appointment provides otherwise, the appointee may continue to act until the appointer otherwise directs, the vacancy is filled or a period of 12 months from the day the vacancy ends, whichever happens first;

(e)	the appointment ceases to have effect if the appointee resigns in writing delivered to the appointer;

(f)	while the appointee is acting in the office, he or she has and may exercise all the powers, and is to perform all the functions and duties, of the holder of the office and the ACMA Bill and any other legislation will apply in relation to the appointee as if the appointee were the holder of the office.

The effect of clause 5 of the Bill would be that for the purposes of a reference to a vacancy in section 33A of the AIA, there will be taken to be seven offices of members of the ACMA in addition to the Chair and the Deputy Chair.

Subdivision B – Associate members

Clause 24 – Appointment of associate members

The Minister will be able to appoint such associate members as he or she thinks fit by written instrument (subcls. 24(1) and (2)).  An associate member may be appointed either as a full-time or as a part-time associate member (subcl. 24(3)).

Associate members will be appointed for specified and not general purposes.  An associate member’s instrument of appointment will be required to state that the appointment relates to:

•	an inquiry, investigation or hearing (as defined in clause 3); or

•	any other matter that relates to the performance of the ACMA’s functions or the exercise of the ACMA’s powers.

Clause 25 – Period of appointment for associate members 

Subclause 25(1) provides that an associate member will hold office for the period specified in his or her instrument of appointment.  This period must not exceed 5 years.  

A person will be able to be appointed as an associate member more than once, subject to the limitation that a later appointment must not result in the sum of the person’s total periods of appointment exceeding 10 years (subcl. 25(2)).  This would include any period of appointment (including non-consecutive appointments) as an associate member or a member of the ACMA (paragraph 25(5)(a)).  Previous appointments as a member, or associate member, of the ABA or the ACA (but not AUSTEL which was the body corporate that was continued in existence as the ACA as a result of section 14 of the ACA Act, nor the Spectrum Management Agency or the Australian Broadcasting Tribunal) will also count towards the 10-year limit.  

If an associate member has been appointed for the purposes of a specified inquiry, investigation or hearing and that inquiry, investigation or hearing ends before the period of appointment specified in the associate member’s instrument of appointment, the associate member will hold office until the end of the inquiry, investigation or hearing (subcl. 25(3)).  In addition, despite the limitations on a member’s period of appointment in subclauses 25(1) and (2), if the associate member is conducting, or is part of the panel conducting, an inquiry, hearing or investigation the Minister will be able to extend the member’s appointment until the end of the inquiry, investigation or hearing (subcl. 25(4)).   Clause 3 of the Bill defines ‘inquiry’, ‘investigation’ and ‘hearing’ and clause 4 determines when the end of an inquiry, investigation or hearing occurs. 

Clause 26 – Acting appointments – associate members

The Minister will be empowered to appoint a person to act as an associate member during any period, or during all periods, when an associate member is acting as a member, is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office (subcl. 26(1)).

A defect or irregularity in connection with a person’s appointment to act under clause 26 will not invalidate anything done by the person when purporting to act under this clause.  Nor will certain other technicalities viz. the occasion for the appointment not having arisen, the appointment ceasing to have effect and the occasion for the person to act not having arisen or having ceased (subcl. 26(2)).

The provisions of section 33A of the AIA discussed under clause 23 would be equally relevant to acting appointments of associate members under clause 26. 

Clause 27 - Associate members to be treated as members for certain purposes in other Acts

The effect of clause 27 would be that where an Act, (other than the ACMA Bill) refers to a member of the ACMA, an associate member would be taken to be a member for all purposes in connection with any inquiry, hearing or other matter specified in his or her instrument of appointment, unless there is a contrary intention expressed in the other Act.  For example, section 491 of the Telecom Act (as amended by the Australian Communications and Media Authority (Consequential and Transitional Provisions) Bill 2004) provides that a hearing for the purposes of a public inquiry under that Act may be constituted by a member or members of the ACMA determined in writing by the Chair of the ACMA.  The effect of clause 27 would be that the Chair could determine that an associate member is to form part of the panel for a hearing to the extent that the hearing is connected to the matter or matters specified in the associate member’s instrument of appointment.

In relation to the ACMA Bill, where an associate member is to be treated as a member for a provision in the Bill, associate members are expressly mentioned in the provision (see for example clauses 29 and 30) and where this is not the intention, the relevant provision refers only to members (see for example clause 36 which would prevent two associate members from requesting the Chair to convene a meeting of the ACMA).  

Division 3 – Terms and Conditions for members and associate members

Clause 28 – Remuneration

A member or associate member is to be paid such remuneration as is determined by the Remuneration Tribunal.  If no determination of that remuneration is in operation, the member or associate member is to be paid such remuneration as is prescribed in the regulations (subcl. 28(1)).

A member or associate member is to be paid such allowances as are prescribed in the regulations (subcl. 28(2)).

Clause 28 has effect subject to the Remuneration Tribunal Act 1973 which provides for the Remuneration Tribunal to conduct inquiries and make determinations on the remuneration of certain office holders (subcl. 28(3)).

Clause 29 – Standing obligation to disclose interests

Clause 29 requires members and associate members of the ACMA to disclose any interest he or she has if the interest could conflict with the proper performance of the functions of the member or associate member’s office.  Clause 29 would impose a standing obligation on members and associate members to disclose all potential conflicting interests in writing to the Minister and to each member (but not associate members) of the ACMA as soon as possible after the member or associate member becomes aware of the potential for conflict.  The obligation to disclose potential conflicts would apply irrespective of whether the interest would directly or indirectly conflict with the performance of the member or associate member’s functions of office, or whether the interest is pecuniary or otherwise, and whether the interest was acquired before or after the member or associate member was appointed.

Clause 30 – Obligation to disclose interest before deciding a particular matter

Clause 30 requires a member or associate member, who has an interest that could conflict with the proper performance of the functions of his or her office, as they give him or her a role in deciding a particular matter, not to perform that role unless the member or associate member has disclosed that interest to each of the members (but not each associate member) and each member (but not associate member) has consented to the relevant member or associate member performing the role despite the possible conflict of interest.  The obligation to disclose conflicts would apply irrespective of whether the interest would directly or indirectly conflict with the performance of the member or associate member’s functions in relation to the particular matter, or whether the interest is pecuniary or otherwise, and whether the interest was acquired before or after the member or associate member was appointed.  

Each member notified of the conflict and who has consented to the member or associate member performing the relevant role despite the possible conflict of interest would need to notify his or her consent to the Chair (subcl. 30(3)).  The Chair, in turn, would need to give the Minister a written notice that describes the interest and the particular matter which the member or associate member’s functions give him or her a role in deciding, and advise the Minister whether all of the members have consented to the member or associate member performing that role (subcl. 30(4)).

If a member or associate member’s role in deciding a particular matter would extend over a period of time, the disclosure of the potential conflict of interest and the consent from all members to perform the role in relation to that matter would cover the entire period during which the member or associate member performs the role. For example, a member or associate member would not need to disclose the interest at each meeting of the ACMA or a Division at which the particular matter was to be discussed and decided, and the consent procedure and notification of the Minister would not need to be repeated, if the member or associate member had initially done so, the members had consented to the member or associate member performing that role in relation to that matter and the Chair had notified the Minister as required by subclause 30(4).

Clause 31 – Outside employment

The Chair of the ACMA will not be able to engage in paid employment outside the duties of his or her office without the Minister’s approval (subcl. 31(1)).

The other full-time members and the full-time associate members will not be able to engage in paid employment outside the duties of their offices without the Chair’s approval (subcl. 31(2)).  The restriction in subclause 31(2) would not apply to a part-time member who had been assigned on a full-time basis to an inquiry, investigation or hearing by the Minister under subclause 20(4).  Similarly, paragraph 34(5)(b), which allows a full-time member or full-time associate member’s appointment to be terminated if that member or associate member engages in outside paid employment without the Chair’s approval, will not apply to a part-time member who has been assigned to an inquiry, hearing or investigation under subclause 20(4).

If subclause 31(2) and paragraph 34(5)(b) were to apply to a part-time member (who would usually have outside employment) who had been assigned on a full-time basis to a particular inquiry, investigation or hearing, the member would be required to resign from any outside position, unless the Chair agreed that continuation of that employment was acceptable.  This would be an inappropriate imposition on a part-time member in circumstances where the assignment as a full-time member would only be temporary.

Clause 32 – Leave of absence

A full-time member or full-time associate member will have such recreation leave entitlements as are determined by the Remuneration Tribunal (subcl. 32(1)).

The Minister may grant the Chair leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines (subcl. 32(2)).

The Chair may grant another full-time member or a full-time associate member leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Chair determines (subcl. 32(3)).

The Chair may grant leave of absence to a part-time member or part-time associate member on the terms and conditions that the Chair determines (subcl. 32(4)).

Clause 33 – Resignation

A member or associate member may resign by giving his or her appointer (the Governor-General in the case of a member or the Minister in the case of an associate member – see the definition of ‘appointer’ in clause 3) a written resignation.  

Clause 34 – Termination of appointment

The effect of subclause 34(1) and the definition of ‘appointer’ in clause 3 is that the Governor-General will be obliged to terminate the appointment of a member if the Minister is of the opinion that the member’s performance has been unsatisfactory for a significant period of time.  Similarly, the Minister will be obliged to terminate the appointment of an associate member if the Minister is of the opinion that the associate member’s performance has been unsatisfactory for a significant period of time.

The Governor-General will be obliged to terminate the appointment of all the members and associate members if the Minister is of the opinion that the performance of the ACMA has been unsatisfactory for a significant period of time (subcl. 34(2)).

The Governor-General will have a discretion to terminate the appointment of a member on the grounds of misbehaviour or physical or mental incapacity.  The Minister will have a discretion to terminate the appointment of an associate member on the same grounds (subcl. 34(3) and the definition of ‘appointer’ in cl. 3).

Subclause 34(4) and the definition of ‘appointer’ in clause 3 give the Governor-General (in the case of a member) and the Minister (in the case of an associate member) a discretion to terminate the appointment of a member or associate member if:

(a)	the member or associate member becomes bankrupt, applies for relief from 	bankruptcy, enters into an arrangement with creditors regarding the payment of 	his or her debts or assigns all or part of his or her remuneration for the benefit of 	creditors; 

(b)	the member or associate member fails, without reasonable excuse, to comply 	with clause 29 or 30.  Clause 29 imposes a standing obligation on members and 	associate members of the ACMA to disclose interests which may potentially 	conflict with the proper performance of their functions of office.  Clause 30 	prevents a member or associate member from performing a role in 	deciding a 	particular matter if he or she has an interest that may conflict with the 	performance of that role unless the member or associate member discloses the 	interest and all members consent to the member or associate member 	performing that role;

 (c)	the member or associate member (being full-time) engages in paid outside employment without the approval required by clause 31 or is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 consecutive months; 

(d)	the member (being part-time) is absent, except on leave of absence, from 3 consecutive meetings of the ACMA;
 
(e)	the associate member (being part-time) is absent, except on leave of absence, 	from 3 consecutive meetings of the ACMA.  The only meetings that would be 	taken into account for this purpose are meetings that the associate member was 	entitled to attend because the meeting was considering a matter connected with a 	hearing, inquiry, investigation or other matter specified in the associate 	member’s instrument of appointment.  In addition, such a meeting would only be 	counted if reasonable efforts had been made to inform the associate member of 	the meeting at which the relevant matter was going to be considered.

If the Minister is of the opinion that the members have failed to comply with clause 56 (which requires the ACMA to prepare a corporate plan) or clause 57 (which requires the ACMA to prepare an annual report), the Governor-General may terminate the appointment of all members or particular members (subcl. 34(7)).  Subclause 34(7) would not apply to associate members of the ACMA.

Clause 35 – Other terms and conditions

Clause 35 provides that:

(a)	an ACMA member will hold office on such further terms and conditions (if any) in relation to matters that are not covered by the ACMA Bill as are determined by the Governor-General; and

(b)	an associate member of the ACMA will hold office on such further terms and 	conditions (if any) in relation to matters that are not covered by the ACMA Bill 	as are determined by the Minister.

Part 4 – Decision-making and delegation by ACMA

Division 1 – Meetings

Clause 36 – Times and places of meetings

The ACMA is to hold such meetings as are necessary for the efficient performance of its functions (subcl. 36(1)).

The general rule is that meetings are to be held at such times and places as the ACMA determines (subcl. 36(2)).  This rule is subject to the following qualifications:

•	the Chair may call a meeting at any time (subcl. 36(3));

•	the Chair must call a meeting if the Minister so requests in writing (para. 36(4)(a));

•	the Chair must call a meeting if requested to do so in writing by at least 2 other  members (para. 36(4)(b)).

Associate members would not have the ability to request the Chair to call a meeting under paragraph 36(4)(b).  This would be consistent with clause 39, which provides that a majority of members, but not associate members, constitute a quorum at a meeting of the ACMA.

Clause 37 – Notice of meetings

Clause 37 provides that reasonable efforts are to be made to give each member notice of the ACMA’s meetings.

If an associate member is entitled to attend a particular ACMA meeting because the agenda for the proposed meeting mentions a matter connected with an inquiry, hearing, investigation or other matter specified in his or her terms of appointment, reasonable efforts must also be made to give the associate member notice of the meeting.

Clause 38 – Presiding at meetings

The Chair is to preside at all meetings at which he or she is present (subcl. 38(1)).  In the absence of the Chair, the Deputy Chair is to preside (subcl. 38(2)).  In the absence of both the Chair and the Deputy Chair, the members (other than associate members) present are to appoint one of their number to preside (subcl. 38(3)).

Clause 39 – Quorum

A majority of the members will constitute a quorum at an ACMA meeting (subcl. 39(1)).  Associate members of the ACMA present at a meeting will not be counted for the purposes of a reaching a quorum.  Subclause 39(2) deals with the situation where a member is required by clause 30 not to be present during the deliberations, or to take part in the any decision, of the ACMA with respect to a particular matter and as a result of the member leaving the meeting there would no longer be a quorum present.  In such a circumstance, the remaining members present would constitute a quorum for the purposes of any deliberation or any decision at the meeting with respect to the particular matter.

Clause 40 – Participation etc. by associate members at meetings

Clause 40 provides that an associate member is entitled to attend and participate in discussions, at meetings of the ACMA while the meeting is considering a matter connected with a hearing, inquiry, investigation or other matter specified in the associate member’s instrument of appointment.  The entitlement of an associate member to attend and participate in discussions at such meetings would be subject to clause 30, which would require an associate member to disclose an interest that may conflict with the associate member properly performing a role in deciding a particular matter and would prevent the associate member from performing that role unless all other members consented to the associate member doing so.

An associate member will also be able to be appointed to one or more Divisions if a matter or matters to be considered by the Division are connected with the matter specified in the associate member’s instrument of appointment.  If the Division may deal with a number of matters, only one of which or some of which are connected with the matter specified in the associate member’s instrument of appointment, the associate member would only be able to take part in decisions relating to the matter if that matter is connected with the matter specified in the instrument of appointment. 

Clause 41 – Voting at meetings

Questions at meetings will be decided by a majority of the votes of the members present and voting and the votes of any associate members entitled to be present and to vote on a question (subcl. 41(1)).  An associate member would be entitled to vote on a question if it relates to a matter connected with a hearing, inquiry, investigation or a matter specified in the associate member’s instrument of appointment.  

The person presiding at a meeting will have a deliberative vote and, if necessary, also a casting vote, i.e. the deciding vote when the votes on each side are equal (subcl. 41(2)).

Clause 42 – Conduct of meetings

Subject to Division 1 of Part 4 of the Bill, the ACMA may regulate proceedings at its meetings as it considers appropriate. 

It would also be open to the ACMA to permit members and associate members to participate in a meeting, or all meetings, of the ACMA by telephone, closed-circuit television or any other means of communication.  A member or associate member who participates in a meeting in accordance with such permission would be taken to be present at the meeting (see s. 33B of the AIA).

Clause 43 – Minutes

Clause 43 requires the ACMA to keep minutes of its meetings.

Division 2 – Decisions without meetings

Clause 44 – Decisions without meetings

Clause 44 allows the ACMA to determine that decisions can be made without a meeting and the method by which a particular matter, or a range of matters, can be resolved without holding a meeting.

If the ACMA determines that subclause 44(1) applies in relation to a particular matter or particular matters and the method by which members are to indicate agreement to a proposed decision, a resolution in relation to the matter or matters will be taken to have been passed at a meeting of the ACMA if:

•	without meeting, a majority of members indicate their agreement in accordance with the method determined by the ACMA; and

•	all members were informed of the proposed resolution, or reasonable efforts had been made to inform them of it.

Subclause 44(1) will not apply to a member who, if the proposed decision were a matter to be considered at a meeting of the ACMA, would be prevented by clause 30 from deliberating on the proposed decision of the ACMA (subcl. 44(3)).

For the purposes of a particular proposed decision, clause 44 would apply to an associate member as if the associate member were a member if the proposed decision relates to a matter connected with an inquiry, hearing, investigation or other matter specified in the associate member’s instrument of appointment (subcl. 44(4)).  

Clause 45 – Record of decisions

Clause 45 requires the ACMA to keep a record of decisions that are made in accordance with clause 44 (i.e. without a meeting).

Division 3 – Divisions

Clause 46 – Divisions

Clause 46 allows the ACMA to establish one or more Divisions of members to deal with certain matters determined by the ACMA (subcl. 46(1)).  The Division would not be able to perform any of the ACMA’s functions, or exercise any of the ACMA’s powers, unless the relevant function or power has been delegated to the Division by the ACMA under clause 50.  The establishment of Divisions will allow the ACMA to require groups of members to undertake a specific function or functions – an example would be where ACMA wishes to have members and associate members with a particular interest or experience in a function, to undertake that function.  A Division could also be set up to undertake a particular inquiry or investigation.  The number of Divisions, and their purpose, will be a matter for the ACMA to determine, and the ACMA will have the power to dissolve a Division or change the matters it deals with at any time.  

A Division must contain at least 3 members (excluding associate members) chosen from time to time by the ACMA.  If the Chair is not chosen by the ACMA to be one of those members, the Chair could elect to be a member of the Division (subcl. 46(3)).  A Division could also include one or more associate members chosen from time to time by the ACMA if the kind of matters that the Division can deal with include a matter connected with an inquiry, hearing, investigation or other matter specified in the each associate member’s instrument of appointment (subcl. 46(4)).

A member or associate member could be in more than one Division (subcl. 46(5)).

The ACMA could remove a member or associate member from a Division but could not remove the Chair from a Division (subcl. 46(6)).

A Division would be able to decide a matter at a meeting of the Division under clause 47 or without a meeting in accordance with clause 48 (subcl. 46(7)).

Clause 47 – Meetings of a Division

Subclause 47(2) allows a Division to determine its own rules relating its meetings, for example, in relation to the calling of meetings and how decisions are made at meetings. However, the ability of a Division to determine its own rules relating to its meetings would be subject to subclause 47(3) which would prevent a Division from excluding the operation of clause 30 (which imposes an obligation to disclose interests before deciding a particular matter) or allowing an associate member to vote on a question which does not relate to a matter connected with an inquiry, hearing or investigation or other matter specified in the associate member’s instrument of appointment.  

Subclause 47(1) provides default rules for meetings of a Division which would apply where a Division has not determined rules under subclause 47(2) or to the extent that rules determined under that subclause do not displace a default rule.  The default rules in subclause 47(1) are consistent with the rules that apply to ACMA meetings, as provided by clauses 36 to 41, and deal with the calling of meetings, the quorum necessary for a Division meeting, the appointment of a presiding member, and voting at Division meetings.

It would also be open to a Division to permit its members (including associate members) to participate in a meeting, or all meetings, by telephone, closed-circuit television or any other means of communication.  A member or associate member who participates in a meeting in accordance with such permission is taken to be present at the meeting (see section 33B of the AIA).

Clause 48 – Divisions can make decisions without meetings

Clause 48 is a provision equivalent to clause 44.  It would allow a Division to determine that decisions can be made without a meeting and the method by which a particular matter, or a range of matters, can be resolved without holding a meeting.

Clause 49 – Minutes etc.

Clause 49 requires a Division to keep minutes of its meetings and a record of decisions made in accordance with clause 48 without a meeting.

Division 4 – Delegations

Clause 50 – Delegations by ACMA to a Division

Subclause 50(1) allows the ACMA to delegate any or all of its functions and powers to a Division to the extent that they relate to the matters that the Division can deal with (which would be specified in a determination made by the ACMA under clause 46).  

A member of the Division would be able to sign a certificate stating any matter with respect to the performance of the delegated function or the exercise of the delegated power and this would constitute prima facie evidence of that matter which could be rebutted by evidence to the contrary (subpara. 50(2)(b)(i)).  An associate member would be able to sign such a certificate if he or she participated, or could have participated, in the making of the Division’s decision to perform the delegated function or exercise the delegated power (subpara. 50(2)(b)(ii)). A document purporting to be such a certificate will be taken to be such and to have been duly given unless the contrary is established (subcl. 50(3)).  Certificates signed by a member or, where appropriate, an associate member, would provide a means of a Division, which is not a legal person, proving its resolutions or actions.

Clause 51 – Delegations by ACMA to others

Subject to clause 53 (which specifies limitations on the ability of the ACMA to delegate certain powers), clause 51 provides that the ACMA may delegate any or all of its functions and powers to a member, a member of the ACMA staff or a person whose services are made available to the ACMA under subclause 55(1) (paras. 51(a), (c) and (d)).  The ACMA may delegate functions and powers to an associate member if the delegated function or power relates to a matter connected with an inquiry, investigation or hearing or other matter specified in the associate member’s instrument of appointment (para. 51(b)).

It is not practicable to limit this power of delegation to senior officers of the ACMA.  Consistent with the current approach of the ACA and the ABA, many of the ACMA’s routine administrative decisions, such as the issue of cabling licences, customer equipment permits and radiocommunications licences, will be made by officers of the organisation at junior levels.  Important decisions, such as the making of delegated legislation, will not be able to be delegated (see clause 53).

Clause 52 – Delegations by a Division

Clause 52 is similar to clause 51 but deals with the ability of a Division to sub-delegate functions or powers that have been delegated to it by the ACMA under clause 50. Subject to clause 53 (which specifies limitations on the ability of a Division to sub-delegate certain powers), the Division may sub-delegate any or all of its delegated functions or powers to a member, a member of the ACMA staff or a person whose services are made available to the ACMA under subclause 55(1) (paras. 52(a), (c) and (d)).  Similarly to paragraph 51(b), paragraph 52(b) would allow a Division to sub-delegate a function or power to an associate member if the delegated function or power relates to a matter connected with an inquiry, investigation or hearing or other matter specified in the associate member’s instrument of appointment.

A delegation by a Division would remain in force despite the membership of a Division changing from time to time (subcl. 52(2)).

A delegation could be revoked or varied by a Division.  A change in membership of the Division would not affect the ability of a Division to revoke or vary a delegation (subcl. 52(3).

A member of the Division would be able to sign a certificate stating any matter with respect to a delegated function and this would constitute prima facie evidence of that matter which could be rebutted by evidence to the contrary (subpara. 52(4)(a)(i)).  An associate member would be able to sign such a certificate if he or she participated, or could have participated, in the making of the Division’s decision to perform the delegated function or exercise the delegated power (subpara. 52(4)(b)(ii)). A document purporting to be such a certificate will be taken to be such and to have been duly given unless the contrary is established (subcl. 52(5)).  Certificates signed by a member or, where appropriate, an associate member, would provide a means of a Division, which is not a legal person, proving its delegations and actions relating to delegations.

Subclause 52(6) provides that sections 34AA, 34AB and 34A of the AIA would apply to a delegation under clause 52 by the Division in the same way that those provisions would apply to a delegation by ACMA to the Division.

The effect of sections 34AA, 34AB and 34A of the AIA is as follows:

(a)	Any provision in the Bill which confers power to delegate a function or power is not limited to delegating the function or power to a specified person but includes a power to delegate the function or power to any person from time to time holding, occupying, or performing the duties of, a specified office or position, even if the office or position does not come into existence after the delegation is given.

(b)	Where any provision in the Bill confers power on a person or body (referred to below as an authority) to delegate a function or power:

(i)	the delegation may be made either generally or as otherwise provided by the instrument of delegation;

(ii)	the powers that may be delegated do not include that power to delegate;

(iii)	a function or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the ACMA Bill, be deemed to have been performed or exercised by the authority; 

(iv)	a delegation by the authority does not prevent the performance or exercise of a function or power by the authority; and

(v)	if the authority is not a person (which will be the case in relation to a Division of the ACMA), section 34A of the AIA, described in paragraph (c) below, will apply as if it were.

(c)	Where, under the Bill, the exercise of a power or function by a person is dependent upon the opinion, belief or state of mind of that person in relation to a matter and that power or function has been delegated in pursuance of the Bill, that power or function may be exercised by the delegate upon the opinion, belief or state of mind of the delegate in relation to that matter.

Clause 53 – Limit on powers delegable to persons other than Divisions

Clause 53 imposes limits on the ability of the ACMA to delegate certain powers and the ability of a Division established by the ACMA to sub-delegate certain powers delegated to it by the ACMA under clause 50. 

Currently, subsection 48(2) of the ACA Act prevents the ACA from delegating the power to make, revoke or vary an instrument that is a disallowable instrument for the purposes of section 46A of the AIA.  A similar limitation applies to the ability of the ABA to delegate such powers (para. 18(2)(p) of Schedule 3 to the BSA).   Subclause 53(1) will prevent the ACMA or a Division from delegating the power to make, vary or revoke a legislative instrument for the purposes of the LIA.  As any instrument that is a disallowable instrument for the purposes of section 46A of the AIA is deemed to be a legislative instrument for the purposes of the LIA (see subpara 6(d)(i) of the LIA), subclause 53(1) therefore provides an equivalent limitation on the ability to delegate powers as is provided currently under the ACA Act and the BSA.  It will also cover any instruments which are not currently disallowable instruments but are legislative instruments for the purposes of the LIA as it is appropriate that legislative instruments made in the exercise of a power delegated by the Parliament should be exercised by the ACMA or a Division of the ACMA. 

Subclause 53(2) lists a number of powers under the BSA which may not be delegated by the ACMA or a Division.  This would preserve the current limitations in paragraphs 18(2)(a) to (o), (q) and (r) in Schedule 3 to the BSA.  A number of the powers listed in subclause 46(2) may be covered under subclause 53(1) but this is not intended to limit the operation of subclause 53(1).

Part 5 – ACMA’s staff etc

Clause 54 – Staff

The ACMA’s staff will consist of persons engaged under the Public Service Act 1999 (subcl. 54(1)).

For the purposes of the Public Service Act 1999, the Chair and the ACMA staff will together constitute a Statutory Agency and the Chair will be the Head of that Statutory Agency (subcl. 54(2)).

Clause 55 – Arrangements with authorities of the Commonwealth

Subclause 55(1) will allow the ACMA to make an arrangement with a Commonwealth authority for one of their officers or employees to be made available to the ACMA or for the services of ACMA staff to be made available to that Commonwealth authority.  ‘Commonwealth authority’ is defined in subclause 55(2) to be a Department of State, a Department of the Parliament, a prescribed Agency within the meaning of the FMA Act, a Commonwealth authority or a Commonwealth company within the meaning of the CAC Act and a body established for a public purpose by or under a law of the Commonwealth.
 
Part 6––Corporate planning and reporting by ACMA

Clause 56 – Corporate plans

The ACMA will be required to prepare a corporate plan at least once a year and give it to the Minister (subcl. 56(1)).

The plan will be required to cover a period of at least 3 years (subcl. 56(2)).

The plan will be required to include details of the ACMA’s objectives, the strategies and policies that are to be followed by the ACMA in order to achieve those objectives and such other matters as the Minister requires (subcl. 56(3)).

The Chair of the ACMA will be required to keep the Minister informed about changes to the plan and matters that might significantly affect the achievement of the objectives set out in the plan (subcl. 56(4)).

The Minister will be able to give the ACMA Chair written guidelines to be used by the Chair in deciding whether a matter might significantly affect the achievement of the objectives set out in the plan (subcl. 56(5)).  The Minister will also be able to give the ACMA Chair written guidelines to assist the Chair in deciding whether a matter is covered by paragraph 56(3)(c).  This power may be used where the matters required by the Minister to be included in the plan under paragraph 56(3)(c) are broad in nature.

Clause 57 – Annual report

Clause 57 requires the ACMA, as soon as practicable after 30 June in each financial year, to prepare and give to the Minister a report on the ACMA’s operations during that financial year.  Item 15 of Schedule 4 to the Australian Communications and Media Authority (Consequential and Transitional Provisions) Bill 2004 deals with the ACMA’s first annual report.

The annual report will be required to include a copy of each Ministerial direction given to the ACMA during the financial year under cl. 14 in relation to the performance of its functions and the exercise of its powers.

The annual report will also be required to include a copy of any instrument that the ACMA gave to a carrier or carriage service provider under s. 581 of the Telecom Act during the financial year to which the annual report relates in connection with performing any of the ACMA’s telecommunications functions or exercising any of the ACMA’s telecommunications powers if, in the ACMA’s opinion, the instrument contains no confidential information (para. 57(2)(b)).

If an instrument made under section 581 does, in the ACMA’s opinion, contain confidential information:

(a)	if, in the ACMA’s opinion, part of the instrument can be reproduced in the annual report without disclosing confidential information, the report is to include a copy of that part;

(b)	if paragraph (a) does not apply, the annual report is to include:

(i)	a statement specifying the instrument and the carrier or carriage service provider to which, and the day on which, it was given; and

(ii)	a statement that, because of confidential information contained in the instrument, or in a part of it, as the case requires, the instrument or part is not reproduced in the annual report; and

(iii)	a note summarising so much of the instrument as is not so reproduced, but without disclosing any information that, in the ACMA’s opinion, is confidential (para. 57(2)(c)).

The annual report is also to include a report on:

(a)	the number and types of complaints made under Part 26 of the Telecom Act during the financial year; and

(b)	the investigations conducted under Part 26 of that Act during the financial year as a result of complaints made under Part 26; and

(c)	the results of those investigations (para. 57(2)(d)).

For the purposes of paragraph 57(2)(d), the report would not need to discuss in detail each investigation conducted under Part 26, and the result of each investigation, but could discuss investigations conducted in relation to particular types of complaints, and the results of those complaints, in an aggregate form.  For example, in circumstances where the ACMA received a large number of complaints of a particular kind, it would be sufficient if the report provides details of how many of those complaints resulted in an investigation being conducted and, in broad terms, the result of those investigations.

The ACMA’s annual report will also be required to include:

(a)	a report on the operation during the financial year of Part 6 of the Telecom Act 	(which deals with industry codes and industry standards); and

(b)	a report setting out statistical information relating to information or documents 	disclosed under Division 3 of Part 13 of that Act (which authorises the 	disclosure of certain protected information in certain circumstances e.g. the 	disclosure of the contents of communications carried by carriers or carriage 	service providers to law enforcement authorities),

where the disclosure occurred during the financial year and is covered by a report given to the ACMA under section 308 of the Telecom Act (paras. 57(2)(e) and (f)).

Clause 57 is based on section 50 of the ACA Act which provides for the same matters a are specified in subclause 57(2) to be included in the ACA’s annual report (except that any Ministerial direction required to be included would be a direction given by the Minister under section 12 of the ACA Act).  Clause 57 preserves these particular requirements for the ACMA’s annual report but, consistent with the approach of the BSA, does not extend the requirement in paragraph 57(2)(d) to require the ACMA to report on the complaints received and investigations conducted under the BSA.  However, the ACMA would be able to report on such matters in the annual report, or any other matter it considered appropriate, as it saw fit.

The Minister would be required to cause a copy of each annual report to be tabled in each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report from the ACMA (subcl. 57(3)).

Part 7 ––Advisory committees and the Consumer Consultative Forum

Clause 58 – Advisory committees

Clause 58 is based on section 51 of the ACA Act and would allow the ACMA to establish advisory committees to assist it in performing any of its functions.  Such an advisory committee will consist of such persons as the ACMA from time to time appoints to the committee (subcl. 58(2)).  The ACMA would be able to revoke a person’s appointment to an advisory committee (subcl. 58(3)).  The ACMA will be able to give an advisory committee written directions as to the way in which the committee is to carry out its functions and procedures to be followed in relation to meetings (subcl. 58(4)).

An appointment to an advisory committee will not be a public office within the meaning of the Remuneration Tribunal Act 1973 (subcl. 58(5)).  The Remuneration Tribunal will not therefore have a role in determining the remuneration (if any) that is to be paid to an appointee to such a committee.

Item 13 of Schedule 4 to the Australian Communications and Media Authority (Consequential and Transitional Provisions) Bill 2004 would preserve any advisory committees that were in existence immediately before the time that the ACMA is established.

Clause 59 – Consumer Consultative Forum

Subclause 59(1) provides for the continued existence of the Consumer Consultative Forum (the Forum), an advisory committee that was required to be established by the ACA under the section 52 of the ACA Act to assist the ACA in performing its functions in relation to matters affecting consumers.  Subclause 59(2) therefore provides that the function of the Forum is to assist the ACMA in relation to the performance of its functions in relation to matters affecting consumers.

The ACMA will be able to appoint persons to the Forum.  At the time of the establishment of the ACMA, the persons on the Forum will be the persons who were appointed to the Forum immediately before the establishment of the ACMA (subcl. 59(3)).  The ACMA would be able to revoke a person’s appointment to the Forum (subcl. 59(4)). An appointment to the Forum will not be a public office within the meaning of the Remuneration Tribunal Act 1973 (subcl. 59(6)).  The Remuneration Tribunal will not therefore have a role in determining the remuneration (if any) that is to be paid to an appointee to the Forum.

Similarly to subclause 58(4), the ACMA will be able to give the Forum written directions as to the way in which it is to carry out its functions and procedures to be followed in relation to meetings (subcl. 59(5)).

Part 8 – Other matters

Clause 60 – Charges relating to the ACMA’s expenses

Clause 60 is based on section 53 of the ACA Act.

Subclause 60(1) provides that the ACMA will be able to make a written determination fixing charges for:

(a)	services provided by the ACMA; and

(b)	any matter in relation to which expenses are incurred by the ACMA under:

(i)	the Bill; 
(ii)	the Telecom Act;
(iii)	the Telecommunications (Consumer Protection and Service Standards) Act 1999; 
(iv)	the Radcom Act;
(v)	the BSA; or
(iv)	an instrument made under the above-mentioned Acts,

	and specifying the persons by whom, and the times when, the charges are payable.

Subclause 60(2) provides that a charge fixed under subcl. 60(1) must not be such as to amount to taxation.

Subclause 60(3) provides that for the purpose of recovering all or part of the ACMA’s expenses in performing its functions under paragraph 11(1)(a) or (b) (which relate to the preparation for the management of electronic addressing and the management of electronic addressing), the ACMA may charge a person an amount that has been agreed with the person or worked out under an agreement with the person.  This subclause is intended to ensure that the ACMA is clearly able to recover the cost involved in performing these functions regardless of any legal uncertainties about whether a particular fee relates to ‘services or facilities’, whether a charge relates to services or facilities under a contract or whether (in the absence of an agreement) a charge would be a tax for the purposes of the Constitution.

Subclause 60(4) provides that subclause 60(3) does not limit subclause 60(1) (i.e. it does not imply that the ACMA must obtain a person’s agreement to a charge that relates to the ACMA’s expenses in performing its functions under paragraphs 11(1)(a) and (b) where that charge does not amount to taxation).

Subclause 60(5) provides that clause 60 does not apply to services or facilities provided under contract.  Any consideration payable in relation to the supply of services or facilities would be determined by the contract.

A determination made by the ACMA under subcl. 60(1) will be subject to the operation of the LIA.

Clause 61 – Fees and charges are payable to the Commonwealth

Clause 61 provides that if clause 60 or a provision of another Act authorises the ACMA to charge a fee, however described, that fee is payable to the Commonwealth. This provision reflects that the members and staff of the ACMA would be a prescribed agency for the purposes of the FMA Act and the limitations on the ACMA’s powers under clause 12 (as a body corporate that does not have the power to hold personal property other than a right to sue, ACMA will not have its own bank account).  

Clause 62 – ACMA’s expenses include related Commonwealth expenses

Clause 62 provides that a reference in clause 60, or a provision of another Act, to an expense (however described) incurred by the ACMA in relation to a thing, includes a reference to an expense incurred by the Commonwealth in relation to the thing. This is because ACMA, the body corporate established under clause 6 of the ACMA Bill, would not incur the expense but rather the Commonwealth (because the members, associate members and staff of the ACMA, and persons whose services have been made available to the ACMA under clause 55, would be a prescribed agency for the purposes of  the FMA Act – see item 64 in Schedule 1 to the Communications and Media Authority (Consequential and Transitional Provisions) Bill 2004).

Clause 63 – Chair not subject to direction on certain matters

Clause 63 makes it clear that the ACMA may not direct the Chair in relation to the Chair’s performance of functions, or exercise of powers, as Chief Executive under the FMA Act or as Agency Head under the Public Service Act.  The purpose of clause 63 is to avoid possible conflicts between the Chair’s powers and responsibilities under the FMA Act as Chief Executive of the prescribed agency of the ACMA (as prescribed by the FMA Regulations – see item 64 of Schedule 1 to the Communications and Media Authority (Consequential and Transitional Provisions) Bill 2004), and under the Public Service Act as Agency Head, and decisions made by the ACMA (being decisions made by the body corporate established under clause 6).

Clause 64 – Definitions determination

The ACMA will be able to make a determination setting out definitions of one or more expressions used in specified instruments made by the ACMA under specified Commonwealth laws such as the BSA, the Telecom Act, the Radcom Act, the proposed Australian Communications and Media Authority Act 2004 and associated tax legislation (subcl. 64(1)).  Such a determination will be subject to the operation of the LIA.

Clause 64 is equivalent to section 54 of the ACA Act and will facilitate the standardisation of terms in such instruments, and the ready amendment of terms without the need for amendment to each affected instrument.  Clause 64 will operate in addition to section 589 of the Telecom Act and section 314A of the Radcoms Act which allow instruments under those Acts for matters by reference to other instruments.

If the Minister is authorised to make an instrument under a Commonwealth law specified in a definitions determination, the instrument will be able to make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification, the provisions of a definitions determination as in force from time to time (subcl. 64(2)). 

Clause 65 – Determinations may define expressions by reference to other instruments

Clause 65 is equivalent to section 54A of the ACA Act.  

The purpose of this clause is to allow a definitions determination made under clause 64 to apply, adopt or incorporate any other instrument or writing (made within or outside Australia, with or without a legislative, administrative or other official nature and with or without any legal force or effect) as in force or existing at a particular time or from time to time.

Under clause 64, the ACMA will be able to make a written determination defining one or more expressions used in instruments made by the ACMA under one or more specified laws of the Commonwealth.  Any such written determination will be subject to the operation of the LIA.  Section 46A of the AIA provides that section 49A of that Act applies to an instrument that is a disallowable instrument as if the instrument were regulations under an Act.  Section 49A would effectively allow a written determination made by the ACMA under clause 64 to apply, adopt or incorporate (with or without modification) the provisions of any Act or regulations as in force from time to time or any matter contained in any other instrument or writing as in force or existing as the time when the written determination takes effect.

This means that section 49A would restrict the ACMA, in exercising its power under clause 64, from applying, adopting or incorporating within a written determination, matters contained in an instrument or other writing that exist from time to time (i.e. matters in instruments or other writing made after the date of effect of the written determination).

This would cause unnecessary administrative work for the ACMA and would lack the flexibility found in section 314A of the Radcom Act and section 589 of the Telecom Act.  Both of these sections allow instruments made under the relevant Act to apply, adopt or incorporate any other instrument or writing (made within or outside Australia, with or without a legislative, administrative or other official nature and with or without any legal force or effect) as in force or existing at a particular time or from time to time.

Clause 65 would allow a determination made under subclause 64(1) to apply, adopt or incorporate such materials, and in such circumstances, as are permitted under both section 314A of the Radcom Act and section 589 of the Telecom Act.  It provides that a determination made by the ACMA under subclause 64(1) of the Bill may define an expression used in a specified instrument by applying, adopting or incorporating (with or without modifications) matter contained in any other instrument or writing whatever as in force or existing at a particular time (paragraph 65(1)(a)) or as in force or existing from time to time (paragraph 65(1)(b)).  An instrument or writing includes an instrument or writing made by any person or body in Australia or elsewhere and whether of a legislative, administrative or official or any other nature and whether or not having any legal force (paragraphs 65(2)(a) to (c)).  Examples of such instruments or writing are regulations, rules or instruments made under a Commonwealth or State or Territory Act; an international technical standard or performance indicator; a written agreement or arrangement or an instrument or writing made unilaterally (paragraphs 65(2)(d) to (g)).  However, the examples given in paragraphs 65(2)(d) to (g) do not limit the type of instrument or writing that may be applied, adopted or incorporated in a written instrument made under section 64 (subcl. 65(3)).

Subclause 65(4) provides that subclause 65(1) has effect despite anything in the AIA.  This is to ensure that the AIA will not affect the ACMA’s power to make written determinations made under clause 64 in the manner described above.

Clause 66 – Persons not to use protected name or protected symbol

Clause 66 is a criminal offence provision similar to section 55 of the ACA Act.  

Subclause 66(1) would provide that a person will commit an offence if the person:

(a)	uses in relation to a business, trade, profession or occupation; or

(b)	uses as the name, or as part of the name, of any firm, body corporate, institution, 	premises, vehicle, ship or craft (including aircraft); or

(c)	applies, as a trade mark or otherwise, to goods imported, manufactured, 	produced, sold, offered for sale or let on hire; or

(d)	uses in relation to goods or services, or the promotion by any means of the 	supply of goods or services;

either a protected name (being either the name ‘Australian Communications and Media Authority’ or the acronym ‘ACMA’) or symbol (being an official symbol of the ACMA, the design of which is prescribed in the regulations), or a name or symbol so closely resembling a protected name or symbol as to be likely to be mistaken for it.  

An individual who contravenes subclause 66(1) will be guilty of an offence punishable on conviction by a fine not exceeding 30 penalty units.  A body corporate that contravenes the provision will be guilty of an offence punishable on conviction by a fine not exceeding 150 penalty units.  A penalty unit is worth $110 (ss. 4AA and 4B(3) of the Crimes Act 1914).

Subclause 66(2) would provide a defence, for which the defendant would bear the evidential burden, that the ACMA had consented in writing to the use or application of the protected name or symbol.

Subclauses 66(3) to (5) would specify a number of matters relating to particular uses or applications of ACMA’s name, acronym or symbol in relation to which the prosecution will have the legal and evidential burden (subcl. 66(6)). Subclause 66(3) would provide that subclause 66(1) will not affect rights in relation to the ACMA’s name or acronym or an official symbol of the ACMA conferred by a trade mark or design registered immediately before 11 May 2004, which was the date that the establishment of the ACMA was announced as part of the 2004 Federal Budget.

Similarly, subclause 66(4) would provide that nothing in subclause 66(1) will affect a person’s existing legal rights to use the ACMA name or acronym or an official symbol of the ACMA in a particular manner if, immediately before 11 May 2004, the person:

(a)	was using the name, acronym or symbol in good faith in that manner; or
(b)	would have been entitled to take action to prevent another person from passing off goods or services as the goods or services of the first-mentioned person.
Subclause 66(5) would provide that subclause 66(1) will not apply to a person who uses or applies the ACMA name or acronym or an official symbol of the ACMA for the purpose of labelling customer equipment or customer cabling in accordance with the Telecom Act or the Radcom Act.

Item 16 in Schedule 4 to the Australian Communications and Media Authority (Consequential and Transitional Provisions) Bill 2004 will provide that the protection currently given to the ACA name, acronym and symbol under s. 55 of the ACA Act will continue to apply for 12 months after the ACMA is established or such longer period (if any) as is specified in the regulations.  As a provision equivalent to section 55 of the ACA Act does not exist in the BSA to protect the ABA name, acronym and symbol, it will not be necessary to provide a similar transitional provision in relation to those matters.

Clause 67 – ACMA to maintain Register of policy notifications and Ministerial directions

The ACMA will be required to maintain a public register of all Ministerial directions given to the ACMA under clause 14 or under any other Act (para. 67(1)(a)).  The Register will also need to include the contents of the register that was maintained by the ACA under section 56 of the ACA Act immediately before the establishment of the ACMA (para. 67(1)(b)).

The Register will be able to be maintained by electronic means (subcl. 67(2)).  On payment of the fee (if any) fixed by an ACMA cost recovery determination under clause 60, a person will be able to inspect the Register and make a copy of, or take extracts from, the Register (subcl. 67(3)).

If the Register is maintained by electronic means, a person will be taken to have made a copy of, or to have taken an extract from, the Register if the ACMA gives the person a printout of, or of the relevant parts of, the Register (subcl. 67(4)).

If a person requests that a copy of the Register be provided in an electronic form, the ACMA will be able to provide the relevant information on a data processing device such as a floppy disk or by way of an electronic transmission (subcls. 67(5) and (6)).

Clause 68 – Regulations

Clause 68 provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.