Ruth Webber (WA, Australian Labor Party) Share this | Link to this | Hansard source

I seek leave to incorporate Senator Conroy’s speech.

Leave granted.

Stephen Conroy (Victoria, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The incorporated speech read as follows—

I rise to speak on the Communications Legislation Amendment (Information and Datacasting) Bill 2007, which brings with it amendments to: the Radiocommunications Act; the Datacasting Charge (Imposition) Act 1998; and the Australian Communications and Media Authority Act 2005.

This Bill seeks to:

1.

Amend the Radiocommunications Act 1992 to give the Australian Communications and Media Authority the power to vary the frequencies on which datacasting transmitter licences operate;

2.

Amend the Datacasting Charge (Imposition) Act 1998 to give effect to the Government’s decision that a Channel B licensee is not subject to an annual revenue based fee; and

3.

Amend the Australian Communications and Media Authority Act 2005 to authorise the disclosure of certain information by ACMA to third parties with whom it has an on going and co-operative role.

On the face of it, the aims of this Bill appear straight forward.

However, upon closer scrutiny, the amendments have implications that simply do not appear to have been adequately considered by the Government.

As was evident at the ECITA Inquiry into this Bill, the Bill fails to address 2 key issues:

1.

privacy and confidentiality concerns;

2.

consultation of stakeholders in relation to spectrum variation.

I will address each of these important issues shortly.

Additionally, a further cause for concern was the manner in which this Bill was rushed through the inquiry process and into Parliament.

These issues serve to highlight a Government with scant regard to democratic process.

The ECITA Inquiry

The Australian public should be concerned, as is Labor, at the way in which the Howard Government pushes legislation through parliament.

This Bill was no different.

The public has to wonder, as Labor does, what is to be gained by the Government’s apparent rush to notch up another Bill on the board.

The Howard Government’s manner of conducting business Illustrates a deep-seated contempt for parliamentary process and serves to denigrate democracy in this country.

On 20 June 2007, the Senate referred the Bill to the ECITA Committee for inquiry and report by 30 July 2007.

While submissions were invited to be received by no later than Friday, 13 July 2007, the first submission was not received until 16 July 2007.

Subsequent submissions were received and, on 3 August 2007, the date for the inquiry was confirmed as 7 August 2007, just 4 days later.

On 6 August 2007, it became clear that one Labor Senator had not been provided with a copy of a recent submission.

On 7 August 2007, the Inquiry was held.

On 8 August, not 24 hours after the inquiry, the Committee issued its report.

One that same day, only some hours after receipt of the Committee’s report, the Committee Secretariat informed Labor that it required its Minority Report forthwith.

This behaviour again serves to show the Government’s lack of regard for the inquiry process.

The inquiry process is intended to ensure that stakeholders are heard and that legislation can be considered and, if need be, improved.

The non-provision of a submission to a Committee member is inexcusable—as is the request for a Minority Report to be provided forthwith.

The acts outlined above can only be described as the acts of an arrogant Government.

The Howard Government appears to have simply forgotten the tenets of good governance.

Apparently, the Government:

• does not consider it necessary to consult on Bills;
• pushes Bills through Parliament; and
• does not take the time to consider the ramifications of its legislation, as outlined by key industry stakeholders.

Labor, however, does not—and will not—act today without regard for tomorrow.

Labor recognises that this Bill has the capacity to impact significantly on the world of broadcasting in the years to come.

Accordingly, it is vital that this Bill—and every bill that comes before parliament—is given due consideration.

The first area of concern for Labor with this Bill is the privacy and confidentiality implications of the information sharing provisions.

Information Sharing Provisions

In its role as broadcasting administrator and regulator, ACMA is often the recipient of information that is, or could be, relevant to other administrative or regulatory entities.

The Bill provides for ACMA to disclose certain information to the Minister, certain public servants and government agencies such as the AFP and ASIO and regulatory bodies such as the ACCC, the TIO and ASIC.

The Bill also provides for disclosure of information by ACMA to an authority of a foreign country responsible for regulating matters relating to communications or media.

Labor appreciates that there are many instances where the disclosure of information gathered by ACMA to third parties would be, or could be, mutually beneficial.

However, there is concern that these same provisions allow ACMA to provide persons and agencies—including overseas media authorities—with personal and/or confidential information.

There is no provision in the Bill to:

• prevent disclosure of personal or confidential information to a nominated third party; or
• prevent use of an individual’s personal or confidential information by a nominated third party who has received such information.

Nor does the Bill provide that, where information is shared by ACMA with a nominated third pally, that the entity about whom the information relates is:

• consulted;
• informed; or
• has an opportunity to apply, for example, for an exemption from the disclosure.

Clearly, these provisions do not adequately address privacy concerns or provide adequate protection of confidential information.

Labor is concerned that the Bill does not adequately strike the balance between the public interest and the protection of privacy and confidentiality.

Datacasting Provisions

As noted above, the datacasting provisions of the Bill allow ACMA to vary the frequencies on which datacasting transmitter licences operate.

The Explanatory Memorandum states that this will enable the Government:

• to address technical issues, such as interference with existing services; and
• to optimise spectrum for the provision of mobile television services.

While on the face of it there is utility in these provisions, one queries whether the need for them would be lessened if comprehensive spectrum planning was undertaken by the Government.

Labor has concerns that:

• frequency variation is a significant undertaking; and
• the Bill does not provide for adequate consultation with stakeholders prior to any such variance.

The Government has made it clear that it intends to auction off Channel A and B to the highest bidder.

ACMA has identified the potential for Channel B to interfere with analogue television reception in Sydney, the Gold Coast and the Sunshine Coast.

Accordingly, Labor and industry stakeholders consider that the datacasting provisions of the Bill may be utilised sooner rather than later and with far reaching effect.

Clearly, the variance of a licence holder’s frequency has the potential for enormous ramifications, such as:

• the loss of television services;
• interference and disruption to viewers; and/ or
• interference and disruption to broadcasters.

It is for this reason that consultation with licence holders is imperative to address both the interference and planning challenges associated with Channel B and to ensure that there Is minimal interruption in services.

Conclusion

This is why Labor seeks to move a second reading amendment.

<SC to move second reading amendment—Attachment A>

The Second Reading Amendment:

• acknowledges the Bill’s shortcomings in relation to the failure of the Bill to adequately address privacy and confidentiality concerns; and
• and seeks to ensure that the Government undertakes adequate spectrum planning, enters into consultation with stakeholders and comprehensively assesses of the impact of any variation in frequency.

Ruth Webber (WA, Australian Labor Party) Share this | Link to this | Hansard source

At the request of Senator Conroy, I move the opposition amendment on sheet 5356 standing in his name:

At the end of the motion, add “but the Senate:

(a)

is concerned that the bill does not:

(i)

provide for consultation with licence holders prior to varying the frequencies on which datacasting transmitter licences operate, and

(ii)

address privacy concerns or provide adequate protection of confidential information; and

(b)

therefore demands that the Government:

(i)

make every attempt to carry out spectrum planning for new digital mobile services to ensure that consumers and licence holders are not disadvantaged, and

(ii)

undertake consultation with all stakeholders prior to varying the frequencies on which datacasting transmitter licences operate”.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I seek leave to incorporate Senator Eggleston’s speech.

Leave granted.

Alan Eggleston (WA, Liberal Party) Share this | Link to this | Hansard source

The incorporated speech read as follows—

Today I would like to speak on the Communications Legislation Amendment (Information Sharing and Datacasting) Bill 2007.

At the core of this Bill are two aims, the first one relates to the sharing of information by the Australian Communications and Media Authority or the ACMA and the second relating to decisions concerning Channel A and Channel B datacasting transmitter licences.

As a whole, the measures contained in this Bill will help the ACMA better carry out its duties and establish clear guidelines for certain engagements with other organisations so that they too can work more effectively.

As a government department, the ACMA carries out very important work for the people of Australia and it is the duty of this government, as elected by those people to develop and produce legislation that will help ACMA carry out its duties which is why we have this Bill before us today.

To elaborate on the first part of this bill regarding information sharing, the ACMA, as a government department, collects vast amounts of information relevant to its duties from a wide variety of individuals, organisations and other government departments.

The value and importance of this information goes beyond the duties of ACMA to others who have a legitimate interest in that information to better serve the Australian public and in some circumstances, the world’s population in areas which I shall discuss later.

Despite the benefits that sharing this information would give, the circumstances under which ACMA can legitimately pass on information, to whom they can pass that information on to, and under what conditions that information can be passed on is unclear.

This bill would amend the Australian Communications and Media Authority Act 2005 (the ACMA Act) to authorise the disclosure of certain information by the ACMA to the Minister for Communications, Information Technology and the Arts, Departments, government agencies and regulatory bodies.

Providing ACMA with an appropriate level of certainty in regard to information sharing will help improve the efficiency of their activities and the activities of those with whom the information is to be shared.

An example which has been discussed previously and which I will also discuss today is how this bill will assist both the ACMA and the Australian Competitions and Consumer Commission, the ACCC, in terms of their respective roles relating to the Government’s media ownership reforms that took effect from 4 April 2007.

In the question of a proposed merger for example, both agencies are likely to receive evidence relating to the question of control of commercial broadcasting licences.

The issue here is the ability of these two agencies to share such information which is legitimately relevant to the carrying out of their duties.

Amendments to the Trade Practices Act 1974, which have already been before this Parliament, allow the ACCC to disclose protected information to other entities such as the ACMA, but currently the ACMA has no authorisation to complement the ACCC’s share information capacity

This Bill will provide the necessary information sharing authorisations and is not a simple copy of the ACCC’s authorisations but rather a special made set of legislative amendments that are more appropriately suited to the ACMA’s responsibilities and ongoing relationships.

Another benefit of these amendments is that it will help reduce duplication and the reporting burden on industry.

As was shown in the recent review of the National Greenhouse and Energy Reporting Bill 2007,  there is a real cost in time and resources for industry when they are obliged to provide similar information to separate government authorities be they local, state, national or a combination.

As ACMA’s responsibilities for the regulation of broadcasting, the Internet, radiocommunications and telecommunications involve gathering a variety of information from many different sources across Australia and indeed the world, there will surely be many circumstances in which unnecessary burdens and overlapping will be avoided.

Here is list of some of the Authorities that would be better able to carry out their functions with the development of an information sharing capacity in ACMA:

• Australian Competition and Consumer Commission (ACCC).
• Australian Prudential Regulation Authority (APRA).
• Australian Securities and Investments Commission (ASIC).
• Commissioner of Taxation.
• Telecommunications Industry Ombudsman (TIO).
• Australian Bureau of Statistics (ABS).
• Regional Telecommunications Independent Review Committee (RTIRC).
• Australian Federal Police (AFP).
• Australian Security Intelligence Organisation (ASIO).
• Director of Public Prosecutions (DPP).

While all of the entities I have so far spoken about have been Australian, ACMA, through its regulation of the Internet in Australia, also has a need to co-operate with overseas agencies.

The global nature of the internet means that issues such as offensive on-line content and international crime require co-operation between relevant government agencies.

Through authorising ACMA to share information with the Australian Federal Police and their overseas counterparts and other relevant agencies, Australia can more effectively participate in combating those crimes which use the internet and other mediums of communication.

What I have so far discussed are just a few of the benefits that could come from the sharing of information by ACMA but we should not ignore that this information can also be used for illegitimate means as well.

A lot of the information that ACMA handles has the potential to be commercially sensitive or personal in nature

Accordingly, this bill includes a number of provisions that will ensure that sensitive and personal information is provided with appropriate protection.

Despite concerns being raised that the bill does not specifically note the application of the Privacy Act 1988, the Privacy Act 1988 will continue to apply to the ACMA and the Minister, and any information collected regardless of whether or not the Bill specifically notes its continued application or makes reference to the definition of ‘personal information’ as defined in the Privacy Act 1988.

Now the second section of this bill deals with datacasting and specifically aims to amend the Radiocommunications Act 1992 and the Datacasting Charge (Imposition) Act 1998.

The Broadcasting Legislation Amendment (Digital Television) Act 2006 amended the Radiocommunications Act to allow for the allocation of two previously unallocated channels of the television broadcasting spectrum known as ‘channel A’ and ‘channel B’.

Channel A licences will allow new free to air, in-home digital television services, while channel B licences can be used for a wider range of services, including mobile television.

This bill shall allow ACMA greater flexibility in carry out its spectrum management functions for Channels A and B.

The proposed changes will allow ACMA to vary the radiofrequency spectrum for a licence after it has been issued.

At the moment, datacasting transmitter licences are the only category of apparatus licence which ACMA does not have the ability to change a frequency for after it is allocated.

Once ACMA allocates a frequency to that licence, it is unable to make changes which limit its ability to deal with a range of technical issue that they arise.

This bill will bring uniformity for ACMA spectrum management functions by giving it the same flexibility in relation to the full suite of transmitter licences that it administers.

While concerns have been raised regarding interference, the ACMA is confident that the application of its well established, robust planning process will prevent as far as possible interference happening and to put in place procedures for dealing with the problem should such problems arise.

The Technical Planning Guidelines made under section 33 of the Broadcasting Services Act will continue to be applied and are specifically designed to guard against interference with existing television services.

These guidelines minimise the likelihood of interference occurring and providing a means of appropriately managing any interference that does occur.

Another provision included in this Bill is aimed at amending the Datacasting Charge (Imposition) Act 1998 so that a fee is not payable where a licensee provides datacasting services on a channel B datacasting transmitter licence.

This shall put into effect the Government’s announcement that Channel B licences would not be subject to an annual licence fee.

In conclusion, this bill will result in ACMA being able to better carry out its duties.

As a government organisation, it exists for the benefit of the people of this country and it is the duty of this government to ensure that such benefits continue and improve.

By providing it with a capacity to share information ACMA will not only be able to better serve the public in its duties but it will also help other organisations engage important issues such as the online safety of our children.

This bill is about creating a more efficient government that can get the job done with a minimum burden on the public and industry which is something I strongly support.

I commend this bill to the Senate and I look forward to seeing the future efforts of this government as it continues to raise the bar on efficiency and effectiveness.

Richard Colbeck (Tasmania, Liberal Party, Parliamentary Secretary to the Minister for Finance and Administration) Share this | Link to this | Hansard source

I seek leave to incorporate my closing remarks in Hansard and commend the bill to the Senate.

Leave granted.

Part 1 of schedule 1 to this Bill amends the Australian Communications and Media Authority Act 2005 (the ALMA Act) to authorise the disclosure of certain information by the Australian Communications and Media Authority (ALMA) to the Minister for Communications, Information Technology and the Arts, Departments, government agencies and regulatory bodies.

ALMA frequently receives information through the performance of its functions and the exercise of its powers as the Australian Government regulatory body responsible for broadcasting, telecommunications and radiocommunications matters.

The Minister for Communications, Information Technology and the Arts, and certain other Australian Government regulatory bodies have a legitimate interest in receiving information that is obtained by ALMA.

At present, the circumstances in which ALMA can legitimately pass on information are uncertain. The amendments in this Bill will provide ALMA with an appropriate level of certainty and in so doing, will enhance the efficiency of the regulator’s enforcement activities.

The amendments will be of particular benefit to ALMA in the context of its role in the Government’s media ownership reforms that took effect from 4 April 2007.

Amendments to the Trade Practices Act 1974 to provide the ACCC with powers to disclose protected information were recently passed by the Parliament. However, no similar powers exist for ALMA.

Clearly, the information ALMA receives from regulated entities has the potential to be sensitive and it is therefore appropriate that the Bill includes a number of provisions designed to ensure that appropriate protection is provided to sensitive and personal information.

Whilst the majority of information ACMA collects is commercial in nature, the continued application of the Privacy Act 1988, together with other safeguards incorporated into the Bill, will ensure that appropriate measures are in place for the protection of personal information that might fall within the scope of the Bill.

Part 2 of schedule 1 to this Bill amends the Radiocommunications Act 1992 to correct anomalies relating to spectrum replanning for licences on the unassigned channels, and the Datacasting Charge (Imposition) Act 1998 in relation licence fees on Channel B.

The Bill amends the Radiocommunications Act 1992 to give ACMA greater flexibility in carrying out its spectrum management functions in relation to datacasting transmitter licences. The provisions will permit ALMA to vary a condition of a datacasting transmitter licence that relates to radiofrequency spectrum after such a licence has been allocated.

The Government’s intention is that a channel B datacasting transmitter licensee will not be subject to an annual revenue based fee.

The Bill amends the Datacasting Charge (Imposition) Act 1998 to correct anomalies concerning the application of datacasting charges in relation to Channel B, to ensure the Government’s intention is implemented in a case where Channel B is controlled by a commercial television broadcasting service.

The Government’s intention is that Channel B licences will not be subject to an annual, revenue based fee. Accordingly this Bill contains an amendment which clarifies that a Channel B licenceholder will not be subject to that annual fee.

However, Commercial TV licenceholders will continue to be subject to that annual, revenue based fee where they operate commercial datacasting licences within their existing commercial television platform.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that opposition amendment on sheet 5356 be agreed to.

Question negatived.

Original question agreed to.

Bill read a second time.