Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019 - Commentary on Ministerial Responses [2019] AUSStaCSBSD 155 (27 November 2019)

• Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019
• Parliamentary scrutiny
• Adequacy of review rights 9
• Broad delegation of administrative powers12

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Communications Legislation Amendment (Deregulation and Other Measures) Bill 2019

Purpose	This bill seeks to amend various Acts in relation to communications to: • remove reporting requirements that require incoming controllers of regulated media assets to notify Australian Communications Media Authority (ACMA) of changes in the control of a licence or publication; • remove requirements for certain television broadcaster to apply different classification standards for films when developing industry codes of practice; • enable the Minister to appoint an industry-based numbering manager in place of ACMA; • update the transition support payment for Network Investments; • remove tariff-filing arrangements applying to the telecommunications industry; • review statutory information collection powers of ACMA and the Australian Competition and Consumer Commission every five years; • permit the National Broadband Network companies to dispose of surplus non-communications goods; • require ACMA to publish a notice both on its website and in one or more forms that are readily accessible when it is determining, varying or revoking a program standard or standard relating to datacasting; • remove the obligation on a developer to install fibre-ready pit and pipe; and • repeal various spent Acts
Portfolio	Communications, Cyber Safety and the Arts
Introduced	House of Representatives on 16 October 2019
Bill status	Passed the House of Representatives

Parliamentary scrutiny
Adequacy of review rights ^[9]

2.23 In Scrutiny Digest 8 of 2019 the committee requested the minister's advice as to:

• the appropriateness of potentially removing parliamentary scrutiny and oversight of the scheme for the numbering of carriage services by providing an avenue for the scheme to be established other than by disallowable legislative instrument;

• whether judicial review and independent merits review of decisions made under a numbering scheme managed by the number scheme manager will be available; and

• the appropriateness of amending the bill to include additional guidance about what would constitute 'effective complaints processes' for the purposes of proposed paragraph 454C(2)(n).^[10]

Minister's response^[11]

2.24 The minister advised:

The Bill proposes amendments to the Telecommunications Act 1997 (Tel Act) to enable the Minister for Communications to appoint an industry-based numbering manager, a function that is currently managed by the Australian Communications and Media Authority (ACMA). The changes will mean that industry, which is directly involved in developing telecommunications services, could introduce new numbering ranges for use in Australia more quickly than ACMA. Also, the reduction in regulatory involvement by ACMA could result in reduced administrative costs for the Government.
Under the proposed measure, the transition to industry-based numbering management would only take place if a number of safeguards were met. The Minister would only be able to appoint someone to be the numbering scheme manager if he or she was satisfied that they would be able to administer the scheme in accordance with the numbering scheme principles in the Bill. The Minister is not compelled to appoint an industry manager, and in this sense, the alternative arrangement is voluntary. It is expected that any proposed numbering scheme would be well-developed before the Minister would consider appointing a private numbering manager. Before determining a person to be the numbering scheme manager, the Minister would be statutorily required to consult with ACMA and the Australian Competition and Consumer Commission (ACCC). Additionally, the Minister's appointment of a numbering scheme manager would be done by a legislative instrument, which is subject to Parliamentary scrutiny through the disallowance process.
In addition, the Minister would be able to direct the numbering scheme manager to amend the rules or change the processes of the numbering scheme in a manner consistent with the numbering scheme principles. ACMA and the ACCC would each have power to direct the scheme manager in relation to the management of the numbering scheme. The Minister will also have the power to direct the numbering scheme manager to comply with additional principles. All of these directions would be exercisable through legislative instruments subject to public and Parliamentary scrutiny and disallowance. The Bill also includes a further layer of oversight by requiring the numbering scheme manager to publicly consult on any significant changes to the numbering scheme. Ultimately, the Minister will have the power to address any problems by revoking the appointment of the numbering scheme manager.
The proposed arrangements align with the movement towards industry-based regulation of the telecommunications sector. For example, the management of electronic addressing and various numbering allocation functions have been managed by industry since 1999 and 2014 respectively. This is consistent with the objectives of the Act set out in section 4 of the Tel Act, which provides that telecommunications be regulated in a manner that promotes the greatest practicable use of industry self-regulation. A proposal for numbering to be regulated by industry, as a form of self-regulatory functions is wholly consistent with this objective.
Decisions made by the numbering scheme manager would be subject to judicial review to the extent that the decision represented the exercise of a power delegated to it by a public body or public official, or the exercise by the manager of a public function or public power with remedies available in judicial review proceedings.
The Committee has also enquired about whether additional guidance should be required in the Bill as to what would constitute an 'effective complaints process' under new paragraph 454C(2)(n) of the Tel Act. Proposed paragraph 454C(2)(n) requires the numbering scheme manager to provide an effective complaints process to both the telecommunications industry and users of carriage services. This principle requires avenues to be in place through which industry and consumers can have their complaints about actions which may affect their rights and obligations heard and addressed. This assessment process is best developed on a flexible administrative basis, as an overly prescriptive assessment process could prove impractical and could lead to increased and unnecessary costs for industry and the Government.
In the event that the numbering scheme manager does not have an effective process in place for complaints, the Minister, ACMA and the ACCC would be expected to promptly use their respective powers to direct the numbering scheme manager to remedy the situation, noting that the numbering scheme manager is obliged to comply with such directions. Similarly, the Minister will be able to revoke the appointment of the numbering scheme manager at any time.

Committee comment

2.25 The committee thanks the minister for this response. The committee notes the minister's advice that the appointment of a numbering scheme manager would be done by a legislative instrument, which is subject to parliamentary scrutiny through the disallowance process. The committee also notes the minister's advice that the minister would be able to direct the numbering scheme manager to amend the rules or change the processes of the numbering scheme and that the numbering scheme manager is required to publicly consult on any significant changes to the numbering scheme. The committee also notes the minister's advice that any directions by the minister would be legislative instruments.

2.26 The committee notes the minister's advice that decisions made by the numbering scheme manager would be subject to judicial review to the extent that the decision represented the exercise of a power delegated to it by a public body or public official, or the exercise by the manager of a public function or public power with remedies available in judicial review proceedings. The committee further notes the minister's advice that proposed paragraph 454C(2)(n) requires avenues to be in place through which industry and consumers can have their complaints about actions which may affect their rights and obligations heard and addressed and that in the event that the numbering scheme manager does not have an effective process in place for complaints, the Minister, ACMA and the ACCC would be expected to promptly use their respective powers to direct the numbering scheme manager to remedy the situation

2.27 The committee reiterates that a complaints process is quite different to a system for merits review. The latter typically provides for review by an independent tribunal or decision-maker who is empowered to make a substitute decision on the basis of their view of what the correct or preferable decision should be.

2.28 The committee requests that the key information provided by the minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.29 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of not providing for independent merits review in circumstances where there is limited legislative guidance on the operation of the new 'effective complaints process'.

Broad delegation of administrative powers^[12]

2.30 In Scrutiny Digest 8 of 2019 the committee requests the minister's advice as to:

• why it is considered necessary to allow for the ACMA's powers under the numbering plan to be delegated to any body corporate; and

• the appropriateness of amending the bill to provide guidance as to how a body corporate is to exercise any powers that are delegated to it.^[13]

Minister's response

2.31 The minister advised:

The Bill inserts proposed section 459A into the Tel Act which would enable ACMA to delegate, by writing, any or all of the powers conferred on ACMA by the numbering plan to a body corporate. Proposed section 459A replicates existing section 467 of the Tel Act, which is being repealed by the Bill. The change will make it certain that ACMA cannot apply this provision if there is an industry-based numbering scheme manager.
ACMA has already been exercising its delegation function, with ZOAK Pty Ltd having been contracted in 2014 to undertake certain numbering functions on behalf of ACMA. The Government considers that including guidance in the Bill is not necessary, as the provision is working as intended.

Committee comment

2.32 The committee thanks the minister for this response. The committee notes the minister's advice that ACMA has already delegated certain numbering functions to a body corporate and that including additional guidance in the bill is not necessary as the provision is working as intended.

2.33 The committee reiterates its preference that, where a bill provides for the delegation of administrative powers, there is a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee does not consider the existence of provisions in current legislation to be, of itself, a sufficient justification for including a broad and undefined delegation power.

2.34 The committee draws its scrutiny concerns to senators and leaves to the Senate as a whole the appropriateness of allowing the ACMA's powers under the numbering plan to be delegated to any body corporate where no guidance is provided as to how a body corporate is to exercise any powers that are delegated to it.

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[9] Schedule 6, item 10, proposed Subdivision AA of Division 2 of Part 22 of the Telecommunications Act 1997. The committee draws senators’ attention to this provision pursuant to Senate Standing Orders 24(1)(a)(iii) and (v).

[10] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2019, pp. 13-15.

[11] The minister responded to the committee's comments in a letter dated 25 November 2019. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 9 of 2019 available at: www.aph.gov.au/senate_scrutiny_digest

[12] Schedule 6, item 13, proposed section 459A. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[13] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2019, p. 15.