Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 [2020] AUSStaCSBSD 148 (18 September 2020)

• Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020
• Delegated legislation not subject to disallowance—ministerial policy statements18
• Delegated legislation not subject to disallowance—bans on equipment20
• Computerised decision making22
• Broad delegation of investigatory powers24
• Significant matters in delegated legislation26
• Broad delegation of administrative powers
• Adequacy of review rights
• Parliamentary scrutiny27
• Broad delegation of legislative power29

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Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020

Purpose	This bill seeks to amend the Radiocommunications Act 1992 to implement recommendations of the 2015 Spectrum Review (the Spectrum Review) and fulfil the Australian Government’s commitment to modernise the legislative framework for spectrum management
Portfolio	Communications, Cyber Safety and the Arts
Introduced	House of Representatives on 27 August 2020

Delegated legislation not subject to disallowance—ministerial policy statements^[18]

1.36 Item 2 of Schedule 2 seeks to insert proposed section 28B into the Radiocommunications Act 1992 (the Act) to provide that the minister may, by notifiable instrument, specify a policy of the government that is to apply in relation to the performance of any of the Australian Communications and Media Authority's (ACMA) spectrum management functions or the exercise of any of the ACMA's spectrum management powers.

1.37 The committee notes that notifiable instruments are not subject to the tabling, disallowance, sunsetting or consultation requirements applying to legislative instruments. As such, there is no parliamentary scrutiny of a notifiable instrument. Given the impact on parliamentary scrutiny by not making such an instrument a legislative instrument, the committee would expect the explanatory memorandum to provide a sound justification for the use of a notifiable instrument. In this instance, the explanatory memorandum states:

The making of an MPS by notifiable instrument allows the Minister to provide formalised policy guidance, without compelling ACMA by legislative instrument or Ministerial direction. The approach is less prescriptive and fits within the broader policy intent of the Bill, to empower ACMA, as the regulator, to manage the administration of the spectrum and to reduce the Minister’s involvement in the day-to-day administrative processes of ACMA.^[19]

1.38 While noting this explanation, it remains unclear to the committee why any guidance from the minister regarding the performance of spectrum management functions or exercise of spectrum management powers could not be in legislative instruments. The committee notes that the directions from the minister could be non-binding on the ACMA and merely provide matters that the ACMA should take into account when considering a matter. Specifying that such directions are to be made by legislative instrument would provide increased opportunities for parliamentary scrutiny.

1.39 The committee therefore requests the minister's more detailed advice as to:

• why it is necessary and appropriate for guidance from the minister under proposed section 28B to be a notifiable instrument; and

• whether the bill can be amended to provide that any instrument made under proposed section 28B will be a legislative instrument.

Delegated legislation not subject to disallowance—bans on equipment^[20]

1.40 Item 24 of Schedule 4 seeks to insert proposed section 167 into the Act, which would allow the ACMA to impose an interim ban on equipment of a specified kind by notifiable instrument. Proposed section 168 provides that an interim ban will remain in force for 60 days and that the ACMA may extend, by notifiable instrument, the period of the interim ban by an additional 30 days. Proposed section 169 provides that the ACMA may revoke an interim ban by notifiable instrument. Proposed section 179 provides that the ACMA may, by notifiable instrument, declare a specified period as an amnesty period for a specified permanent ban.

1.41 The committee notes that notifiable instruments are not subject to the tabling, disallowance, sunsetting or consultation requirements that apply to legislative instruments. As such, there is no parliamentary scrutiny of a notifiable instrument. Given the impact on parliamentary scrutiny by not making such an instrument a legislative instrument, the committee would expect the explanatory memorandum to provide a sound justification for the use of a notifiable instrument. In this instance, the explanatory memorandum states:

The notice would need to be published on ACMA’s website and the legislative rules may set out additional requirements of ACMA to publish a notice. However, a failure of ACMA to publish such a notice on their website is not intended to invalidate an interim ban. The requirement of ACMA to publish an interim ban on its website is intended to provide increased transparency and awareness amongst radiocommunications users. The power conferred on ACMA to impose an interim ban on equipment is by way of notifiable instrument. Notifiable instruments are required to be registered on the Federal Register of Legislation, and these publication requirements are in addition to that requirement.^[21]

1.42 While noting this explanation, it remains unclear to the committee why interim bans on equipment, the extension and revocation of interim bans and the declaration of amnesty periods for permanent bans could not be specified by legislative instrument. The committee notes that such an approach would provide appropriate parliamentary oversight of these matters. In this regard, the committee notes that proposed section 172 appropriately provides for the ACMA to make permanent bans on equipment by legislative instrument.

1.43 The committee therefore requests the minister's more detailed advice as to:

• why it is necessary and appropriate for interim bans on equipment, the extension and revocation of interim bans and the declaration of amnesty periods for permanent bans to be made by notifiable instrument; and

• whether the bill can be amended to provide that any instrument made under proposed sections 167, 168, 169 and 179 will be a legislative instrument.

Computerised decision making^[22]

1.44 Item 10 of Schedule 8 seeks to insert proposed section 305A into the Act to allow the ACMA to rely on computer programs when exercising its powers. Specifically, under proposed section 305A the AMCA may use any computer program under its control for any purposes under the Act or under a legislative instrument made under the Act to make a decision, or exercise any power or comply with any obligation, or do anything else in relation to making a decision or exercising a power or complying with an obligation.

1.45 The committee notes that administrative law typically requires decision‑makers to engage in an active intellectual process in respect of the decisions they are required or empowered to make. A failure to engage in such a process—for example, where decisions are made by computer rather than by a person—may lead to legal error. In addition, there are risks that the use of an automated decision-making process may operate as a fetter on discretionary power, by inflexibly applying predetermined criteria to decisions that should be made on the merits of the individual case. These matters are particularly relevant to more complex or discretionary decisions and circumstances where the exercise of a statutory power is conditioned on the decision-maker taking specified matters into account or forming a particular state of mind.

1.46 With reference to these matters, the committee notes that proposed section 305A authorises the ACMA's use of automated decision making for any decisions or exercising any powers under the Act or any legislative instruments made under it. This has a potentially extremely broad application given the large number of decisions and powers that the ACMA is authorised to make or use under the Act, notwithstanding any further decision making powers and other powers provided to the ACMA by legislative instruments. The committee notes that at least some of these decisions may invariably involve complex or discretionary considerations. For example, sections 74 and 77 of the Act provide that the ACMA may cancel a spectrum licence if it is satisfied that the person authorised to operate a radiocommunications device has contravened a licence condition or the Act, or operated the licence in contravention or in the course of contravention of any written or unwritten law of the Commonwealth, a State or Territory.

1.47 In relation to proposed section 305A the explanatory memorandum states:

This item inserts Section 305A, which allows AMCA to use computer programs in the exercise of its powers and specifies how this system is applied in the legislative framework of the Act. This enables ACMA to arrange for computer programs under the control of ACMA to make decisions, exercise any powers, or do anything related to the making of a decision or complying with obligations. Should ACMA utilise a computer program for this purpose, it is determined to have made a decision or taken action for the purposes of the Act. This decision is able to be reviewed by ACMA at any time. Conversely, a decision made by a computer program must be overridden by ACMA if it is satisfied that the initial decision by the computer program is incorrect. Formalising this computerised process modernises the Act and ensures that it remains fit-for-purpose as technology presents increasing opportunity to streamline services, particularly routine administrative decisions such as the renewal of most apparatus licences.^[23]

1.48 While the committee acknowledges this explanation, in light of the potential impacts on administrative decision-making outlined above, the committee would expect the explanatory materials to include a more comprehensive justification for allowing any decisions or powers of the AMCA under both the Act and any legislative instrument made pursuant to it to be performed by computer program. The committee also considers that it would be useful for the explanatory materials to explain how automated decision-making will comply with relevant administrative law requirements (for example, the requirement to consider relevant matters and the rule against fettering of discretionary power).

1.49 As the explanatory materials do not appear to adequately address this matter, the committee requests the minister's more detailed advice as to:

• why it is considered necessary and appropriate to permit the AMCA to arrange for the use of computer programs for any decisions, powers or obligations it has under the Radiocommunications Act 1992 and any legislative instruments made pursuant to the Act;

• whether consideration has been given to how automated decision-making processes will comply with administrative law requirements (for example, the requirement to consider relevant matters and the rule against fettering of discretionary power); and

• whether consideration has been given to including a requirement on the face of the bill that certain administrative actions and powers (for example, complex or discretionary decisions) must be taken or exercised by a person rather than by a computer.

Broad delegation of investigatory powers^[24]

1.50 Item 31 of Schedule 6 seeks to insert proposed sections 284A and 284B into the Act to trigger the monitoring and investigation powers under the Regulatory Powers (Standard Provisions) Act 2014. Proposed subsections 284A(13) and 284B(11) provide that an authorised person may be assisted by 'other persons' in exercising powers or performing functions or duties in relation to monitoring and investigation. The explanatory memorandum does not explain the categories of 'other persons' who may be granted such powers and the bill does not confine who may exercise the powers by reference to any particular expertise or training.

1.51 The committee's consistent scrutiny position in relation to the exercise of coercive or investigatory powers is that persons authorised to use such powers should have the appropriate training and experience. The committee's concerns in this instance are heightened by the provisions allowing for the use of force.^[25]

1.52 The committee therefore requests the minister's advice as to:

• why it is necessary to confer monitoring and investigatory powers on any 'other person' to assist an authorised person; and

• whether the bill can be amended to require that any person assisting an authorised person have the knowledge and expertise appropriate to the function or power being carried out.

Significant matters in delegated legislation^[26]

1.53 Item 24 of Schedule 4 seeks to insert a new Part 4.1 into the Act. Proposed section 156 provides that the ACMA may, by legislative instrument, make equipment rules. The equipment rules must be directed towards achieving a number of objectives, including ensuring the electromagnetic compatibility of equipment. Proposed section 158 provides that the equipment rules may prescribe standards for equipment. Proposed section 159 provides that the equipment rules may impose obligations or prohibitions in relation to equipment. This includes, for example, prohibiting the operation, supply or possession of equipment or prohibiting a person from doing an act or a thing unless the person holds a permit issued by the ACMA. Proposed section 160 seeks to impose a number of criminal and civil penalties for breaches of the equipment rules and permit conditions.

1.54 The committee has consistently drawn attention to framework provisions, which contain only the broad principles of a legislative scheme and rely heavily on delegated legislation to determine the scope and operation of the scheme. The committee considers that such an approach considerably limits the ability of Parliament to have appropriate oversight over new legislative schemes. Consequently, the committee's view is that significant matters, such as a scheme to manage the operation, supply and possession of equipment, should be included in the primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum contains limited justifications regarding why it is necessary to allow such significant matters to be set out in delegated legislation.

1.55 The committee's scrutiny concerns in this instance are heightened by the inclusion of offence provisions where the detail regarding how an offence will be committed is left to delegated legislation. The committee notes that this limits the ability of Parliament to have appropriate scrutiny over offence provisions and may create confusion for persons subject to such offences as it is not clear on the face of the bill what conduct will constitute an offence.

1.56 In light of the above, the committee requests the minister's advice as to:

• why it is considered necessary and appropriate to leave the details of the scheme to manage the operation, supply and possession of equipment to delegated legislation; and

• whether the bill can be amended to include at least high-level guidance on the face of the primary legislation regarding the intended operation of the scheme.

Broad delegation of administrative powers
Adequacy of review rights
Parliamentary scrutiny^[27]

1.57 Item 12 of Schedule 8 seeks to insert proposed section 313B into the Act to provide that the minister may, by legislative instrument, make rules prescribing matters required or permitted by the Act or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Proposed subsection 313B(4) provides that the rules may make provision in relation to a matter by conferring a power to make a decision of an administrative character on a person who holds a specified kind of accreditation. Proposed subsection 313B(5) provides that the rules may authorise a person who holds a specified kind of accreditation to charge fees in relation to the exercise by the person of a power conferred by the rules. A number of provisions in the bill allow for both legislative and notifiable instruments to confer powers on accredited persons to make decisions of an administrative character and charge fees.

1.58 The committee has consistently drawn attention to legislation that allows the broad delegation of administrative powers. Generally, the committee prefers to see 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. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum. In this instance, the explanatory memorandum contains limited information about why it is necessary to confer powers to make decisions of an administrative character on accredited persons. For example, in relation to proposed subsection 27(2A), the explanatory memorandum states:

The ability to make administrative decisions in relation to exemptions under section 27 could allow ACMA to be more flexible and responsive to the needs of exemption holders, while also providing for a measure of transparency in the form of the registration of notifiable instruments. This Bill includes a number of provisions that enable ACMA to empower itself and others to make administrative decisions. These additional express powers are not intended to impact the powers that ACMA previously had to confer such powers, with this provision avoiding doubt about whether such a power exists after the amendments made by this Bill.^[28]

1.59 The committee's scrutiny concerns in this instance are heightened by the fact that there is little guidance on the face of the primary legislation as to who the persons who hold a specified kind of accreditation will be, whether the person will have the appropriate skills, training or qualifications to make decisions of an administrative character or the nature of the kinds of decisions that will be made.

1.60 Additionally, the committee has scrutiny concerns regarding the ability of accredited persons to charge fees in circumstances where there is no information on the face of the bill as to how the fees will be calculated or any cap on the maximum amount imposed by fees (other than a requirement that the fee must not be such as to amount to taxation). There is also no information in the explanatory memorandum regarding how the amount of any fee will be calculated or how the ACMA will ensure that a fee charged by another person is either necessary or appropriate.

1.61 Finally, the committee also has scrutiny concerns regarding the right of review for any persons who may be impacted by a decision of an administrative character made by an accredited person. The committee notes that the Radiocommunications Act 1992 provides for review by the Administrative Appeals Tribunal for a number decisions made by the ACMA. However, noting the limited information provided in the explanatory memorandum, it is unclear to the committee what the review rights would be for decisions made by accredited persons or whether such review rights would be necessary.

1.62 The committee therefore requests the minister's more detailed advice regarding:

• why it is necessary and appropriate to allow both legislative and notifiable instruments to delegate the power to make decisions of an administrative character and the power to charge fees to persons who hold a specified accreditation;

• the nature of decisions of an 'administrative character' that may be made by persons who hold a specified accreditation;

• whether the bill can be amended to provide that the ACMA must be satisfied that the persons who hold a specified accreditation have the appropriate training, expertise or qualifications to make decisions of an administrative character;

• whether judicial review and independent merits review will be available for decisions of an administrative character made by accredited persons;

• how the amount of any fee charged will be calculated and how the ACMA will ensure that the level of fee imposed by another person is appropriate;

• whether the bill can be amended to provide at least high-level guidance on the face of the bill regarding how fees will be calculated; and

• whether proposed section 298A can be amended so that an instrument made under that section by the ACMA is a legislative instrument rather than a notifiable instrument to ensure that such instruments are subject to appropriate parliamentary scrutiny.

Broad delegation of legislative power^[29]

1.63 Item 9 of Schedule 8 seeks to insert proposed section 302 into the Act, which provides that a number of sections are compliance provisions and that the ACMA may, by legislative instrument, determine that one or more specified acts are exempt from one or more of the compliance provisions or that one or more persons are exempt from one or more of the compliance provisions.

1.64 In the view of the committee, proposed section 302 appears to confer a broad administrative power on the ACMA to exempt acts and persons from the application of the law. This is therefore akin to a Henry VIII clause, which enables delegated legislation to alter or override the operation of primary legislation. The committee has significant concerns with Henry VIII-type clauses, as such clauses have the potential to impact on levels of parliamentary scrutiny and may subvert the appropriate relationship between Parliament and the Executive.

1.65 In this instance, the committee acknowledges that proposed section 302 does not enable delegated legislation to modify primary legislation, but rather enables the ACMA to override the operation of the primary legislation. However, the committee remains concerned about the breadth of the proposed power, and its potential impact on parliamentary scrutiny.

1.66 In light of these matters, the committee would expect a sound justification for the power conferred on the ACMA under proposed subsection 302(2) to be provided in the explanatory memorandum. The committee notes that the explanatory memorandum provides no such justification, but does state that:

In determining the public interest, ACMA will weigh the broader benefits (as well as the individual benefits accrued to the recipient of an exemption) against any detriments that may flow from an exemption. ACMA will also consider the intrinsic principle of the compliance provision from which an act is being exempted. In many situations, such as the supply of prohibited devices, there must be a strong public interest case for an exemption to be granted. There are a range of circumstances in which exemptions may be appropriate. These exemptions are designed to help promote innovation and industry development opportunities within Australia.^[30]

1.67 In light of the above, the committee requests the minister's detailed justification regarding:

• why it is proposed to confer on the ACMA the broad power to exempt acts and persons from the application of the law; and

• whether the bill could be amended to include at least high-level guidance regarding the circumstances where it will be appropriate for the ACMA to exempt an act or person from the compliance provisions.

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[18] Schedule 2, item 1, proposed section 28B. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[19] Explanatory memorandum, p. 22.

[20] Schedule 4, item 24, proposed sections 167, 168, 169 and 179. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(v).

[21] Explanatory memorandum, p. 59.

[22] Schedule 8, item 10, proposed section 305A. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

[23] Explanatory memorandum, p. 103.

[24] Schedule 6, item 31, proposed sections 284A and 284B. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).

[25] See proposed subsections 284A(14) and 284B(13).

[26] Schedule 4, item 24, proposed Division 2 of Part 4.1. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[27] Schedule 3, item 3A, proposed subsection 27(2A); Schedule 4, item 24, proposed subsection 162(2) and proposed section 163; Schedule 5, item 4, proposed subsection 71(5); Schedule 5, item 4, proposed subsection 73A(3); Schedule 5, item 6, proposed subsection 100(4B); Schedule 5, item 10, proposed subsection 110A(7); Schedule 5, item 11, proposed subsection 111A(4); Schedule 5, item 13, proposed subsection 145(3A); Schedule 5, item 20, proposed subsection 298A; Schedule 8, item 12, proposed subsection 313B(5). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(ii), (iii) and (iv).

[28] Explanatory memorandum, p. 26.

[29] Schedule 8, item 9, proposed section 302. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[30] Explanatory memorandum, p. 103.