Commonwealth of Australia Explanatory Memoranda

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COMMUNICATIONS LEGISLATION AMENDMENT (ENFORCEMENT POWERS) BILL 2006

                          2004-2005-2006


 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA


                             SENATE




      COMMUNICATIONS LEGISLATION AMENDMENT
          (ENFORCEMENT POWERS) BILL 2006


     SUPPLEMENTARY EXPLANATORY MEMORANDUM


Amendments and New Clauses to be Moved on Behalf of the Government
                    (Sheet Number QS389)




      (Circulated by authority of Senator the Hon. Helen Coonan,
  Minister for Communications, Information Technology and the Arts)
                 GOVERNMENT AMENDMENTS TO THE
              COMMUNICATIONS LEGISLATION AMENDMENT
                  (ENFORCEMENT POWERS) BILL 2006


                                      OUTLINE


The Government considers that the range of broadcasting regulatory powers available
to the Australian Communications and Media Authority (the ACMA) does not provide
an appropriate gradation of enforcement options, and therefore is not adequate to
enable it to fulfil the objects of the Broadcasting Services Act 1992 (BSA). The Bill
will not create new offences, but will enhance the ACMA's broadcasting regulatory
powers under the BSA by providing the ACMA with several new powers in relation
to:

·   civil penalties;

·   injunctions;

·   enforceable undertakings; and

·   infringement notices.

The Bill will also require the ACMA to develop guidelines relating to the exercise of
its broadcasting enforcement powers.

These amendments will:

·   extend the new injunction provisions for provision of unlicensed services to
    unlicensed datacasting;

·   extend the new provisions relating to ACMA guidelines on enforcement to apply
    to enforcement options available for datacasting licences;

·   extend the new civil penalty provisions to unlicensed datacasting and breach of
    datacasting licence conditions, and introduce associated remedial directions
    provisions.


                       FINANCIAL IMPACT STATEMENT

The amendments contained in the Bill have no significant financial impact.
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                             NOTES ON AMENDMENTS


Amendments (1) and (2)

New Part 14C of the BSA, inserted by the Bill, provides injunction powers to stop
unlicensed broadcasting services. In particular, see new section 205Q. Providing an
unlicensed datacasting service is an offence (see subclause 49(1) of Schedule 6 to the
BSA). New item 50C (added by amendment (7)) makes this conduct also subject to
civil penalties (see new subclauses 49(3)-(5) of Schedule 6 to the BSA).

Amendment (1) amends the simplified outline of new Part 14C as a result of
amendment (2).

Amendment (2) extends section 205Q so that it also covers breach of subclause 49(3)
of Schedule 6.

Amendments (3)-(6)

New section 215 of the BSA, inserted by the Bill, provides for ACMA to formulate
guidelines relating to its existing and new enforcement powers.

Amendments (3)-(6) extend section 215 so that guidelines will also cover the
enforcement provisions relating to datacasting in Part 8 of Schedule 6 to the BSA
(clause 49 and following).

Amendment (7)

Amendment (7) adds new items 50A-50F to Schedule 1 to the Bill.

New items 50A and 50B - Clause 9 of Schedule 6

Allocation of a datacasting licence is subject to a suitability requirement, in common
with other BSA licence categories (see clause 9 of Schedule 6 to the BSA). Risk of
criminal offences are relevant to suitability (see paragraph 9(1)(a) of Schedule 6).

New items 50A and 50B amend clause 9 so that risk of breach of a civil penalty
provision occurring is also relevant to the suitability of a person to hold a datacasting
licence.

New item 50C - Clause 49 of Schedule 6

As outlined in the notes on amendments (1) and (2), new item 50C adds new
subclauses 49(3)-(5) into Schedule 6 so that providing an unlicensed datacasting
service is subject to civil penalties.

New item 50D - Clause 50 of Schedule 6

New item 50D replaces clause 50 of Schedule 6 with a new provision.
                                           3

New subclause 50(1) will allow ACMA to give a person a written remedial direction
to take specific action to ensure they do not breach new subclause 49(3) in the future.
This replaces the current notice provision, which allows ACMA to simply give a
notice to cease provision of the unlicensed service.

Breach of a remedial direction will be an offence (new subclauses 50(2) and (3)) and
subject to civil penalties (new subclauses 50(4)-(6)).

New item 50E - New clause 52A of Schedule 6

Currently, breach of many datacasting licence conditions in Schedule 6 is an offence
(see clause 52 of Schedule 6).

New item 50E adds new clause 52A to Schedule 6, which makes breach of these
licence conditions subject to civil penalties.

There is no reference in new clause 52A to clause 20B of Schedule 6. This is because
various provisions relating to technical standards, including clause 20B, will be
replaced by new and broader provisions to be introduced by Government amendments
to the Broadcasting Legislation Amendment (Digital Television) Bill 2006. Those
amendments will also delete the reference to clause 20B from existing clause 52.

New item 50F - Clause 53 of Schedule 6

Currently, if a datacasting licensee breaches a licence condition, ACMA is able to give
them a remedial direction to take specified action to ensure they do not breach that
condition in future (see existing subclauses 53(1)-(3)). Breach of such a direction is an
offence (see subclauses 53(4) and (5)).

New item 50F adds new subclauses 53(6)-(8) to Schedule 6 to make breach of a
remedial direction under clause 53 subject to civil penalties.