The Technology, Media and Telecommunications Review: Australia
The TMT sectors in Australia are currently in the middle of several transitions, among the most significant of which is the transition to the wholesale-only, government-owned national broadband network: nbn network. This is creating a significant shift in the fixed telecommunications industry structure as Australia moves to a structurally separated model focused on services-based competition.
Convergence within the TMT sectors continues to take place, with traditional broadcast media facing increasing competition from OTT, on-demand media providers that use broadband networks to deliver their content. However, as outlined below, Australia retains separate regulatory regimes for broadcasting and telecommunications (despite having a converged regulator in the form of the Australian Communications and Media Authority (ACMA)).
i The regulators
The ACMA, established in 2005, is the converged regulator for the internet, broadcasting, telecommunications and radiocommunications sectors. The key responsibilities of the ACMA include:
- licensing and regulating telecommunications carriers, carriage service providers and content service providers;
- licensing and regulating RF spectrum;
- regulating television and radio broadcasting, including content regulation;
- regulating telecommunications and radiocommunications equipment; and
- regulating telephone, email marketing and online content.
The structure and powers of the ACMA are set out in the Australian Communications and Media Authority Act 2005. The key pieces of legislation administered by the ACMA are the Telecommunications Act 1997, which regulates carriage and content services; the Radiocommunications Act 1992, which regulates RF spectrum; the Broadcasting Services Act 1992, which regulates television and radio industry structure and content; the Do Not Call Register Act 2006; and the Spam Act 2003, which regulates direct marketing by telemarking and electronic means.
The Australian Competition and Consumer Commission (ACCC) is responsible for access regulation in the telecommunications sector, and also oversees the telecommunications-specific anticompetitive conduct and consumer protection provisions within the Competition and Consumer Act 2010 (CCA). The ACCC will also be given a number of new roles in relation to the Consumer Data Right, including making Consumer Data Rules, accrediting data recipients, and recommending future sectors to which the CDR should apply (see Section VII).
The Office of the Australian Information Commissioner is responsible for privacy and freedom of information laws, and will, along with the Data Standards Body, support the ACCC in regulating the Consumer Data Right.
The Department of Infrastructure, Transport, Regional Development and Communications (formerly, the Department of Communications and the Arts) is the principal government department responsible for developing policy relevant to the TMT sectors.
The National Data Commissioner, currently part of the Department of the Prime Minister and Cabinet, will provide oversight and regulation of Australia's proposed national data sharing and release legislation.
ii Regulated activities
A carrier licence is required for owners of network units that are used to provide fixed, mobile or satellite services to the public. A network unit includes line links (e.g., optical fibre and copper links) as well as radiocommunications transmitters and receivers (e.g., mobile telephony base stations and satellite-based facilities). The owner of the network unit must apply to the ACMA for a carrier licence. The application must be accompanied by a non-refundable application fee of A$2,122 (as at September 2020).2 The ACMA has 20 business days to make a decision in respect of issuing a carrier licence and must consult with the Communications Access Coordinator (Attorney General's Department). If no decision is made within 20 business days, the application is deemed to have been refused, unless the ACMA issued a request for further information or the Attorney General's Department issued a notice to the ACMA that it must not grant the carrier licence in respect of the application, in which case different time limits for refusal will apply.3 Carriers must pay an annual licence fee to the ACMA comprising a fixed amount as well as a variable amount based on the carrier's eligible revenue (being the gross sales revenue of the carrier and related entities, less any proscribed revenue and expense deductions).4 A carrier licence has no set duration, and remains in force until it is either surrendered by the licensee or cancelled by the ACMA.
No licence is required for entities that provide telecommunications services to the public without owning any network units. These entities are classified as carriage service providers and must comply with a range of regulatory obligations, including wholesale access, interception and data retention obligations. A similar regime applies to entities providing content services to the public (e.g., pay-TV services) without owning any network units. Such entities are classified as content service providers and are subject to certain regulatory obligations without requiring a licence.
Carriage service providers and content service providers that provide standard telephone services, public mobile telecommunications services or internet access services must also join the Telecommunications Industry Ombudsman (TIO) scheme. In addition, providers of standard telephone services must provide access to local, national and international calls, emergency service numbers, operator-assisted and directory services, and itemised billing (including itemised local calls on request).
Since April 2015, pre-selection obligations only apply to providers of fixed-line telephony services over the legacy PSTN or integrated services digital networks, rather than all fixed-line telephony providers. These changes were effected through the Telecommunications Legislation Amendment (Deregulation) Act 2015, which more broadly seeks to remove outdated regulation of the telecommunications sector.
There are three types of radiocommunications licences overseen by the ACMA. A spectrum licence is required for the use of a particular RF band within a particular geographic area. Spectrum licences are allocated using a market-based approach, typically an auction, and are issued for up to 15 years. Spectrum licences are technology-neutral, allowing licensees to operate any type of equipment for any purpose as long as they comply with licence conditions and certain technical standards.
An apparatus licence is an individual licence required for the operation of radiocommunications devices under specific technical conditions of use relating to such matters as frequency, power and geographic area. There are a number of apparatus licence types, including, inter alia, for aircraft, broadcasting, datacasting, defence and scientific transmitters, as well as defence, fixed and space receivers.
The operation of certain radiocommunications devices is regulated through a class licence (rather than an individual apparatus licence). Following industry consultation, the ACMA introduced the Radiocommunications (Intelligent Transport Systems) Class Licence 2017 to support intelligent transport systems (ITS), which will enable vehicle-to-vehicle, vehicle-to-person or vehicle-to-infrastructure communications through the use of complying wireless technologies and devices.5 The ACMA also introduced the Radiocommunications (Body Scanning – Aviation Security) Class Licence in 2018 following industry consultation to authorise the use of body scanners at Australian airports for security screening processes, and which replaces the previous apparatus licensing arrangements applicable to body scanners used at international airports. Other devices that the ACMA currently authorises through a class licence include satellite communications equipment and Wi-Fi devices.
iii Ownership and market access restrictions
There are now three key restrictions on cross-ownership of media companies:
- the two-to-a-market radio rule, which prevents control of more than two commercial radio licences in the same licence area;
- the one-to-market TV rule, which prevents control of more than one commercial TV licence in the same licence area; and
- the number of voices rule, which prevents cross-media mergers or acquisitions that result in the number of independent media operations falling below five voices in metropolitan radio licence areas and four voices in regional radio licence areas (the four/five rule).
These restrictions on cross-ownership of media companies were watered down significantly by the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017. That legislation repealed, from 17 October 2017, the following key restrictions on media control and diversity rules that previously applied: (1) the two out of three rule, which prevented a person from being in a position to exercise control of more than two of the three media platforms (commercial television, commercial radio and newspapers) in the same licence area; and (2) the 75 per cent reach rule, which prevented a person from being in a position to exercise control of commercial television broadcast licences whose total licence area populations are greater than 75 per cent of the Australian population.
Foreign ownership restrictions depend on the specific sector in which the target entity is located. For foreign investments in the telecommunications sector, the Foreign Investment Review Board must be notified if a foreign person (or several foreign people) acquires a substantial interest in an Australian corporation whose assets exceed A$266 million (indexed annually). A substantial interest will have been acquired if a single foreign person holds 20 per cent or more, or several foreign persons hold 40 per cent or more, of the issued shares, units or voting power of the target corporation.
For investments in the media sector, the Foreign Investment Review Board must be notified if a foreign person seeks to acquire 5 per cent or more of an Australian media business, regardless of value. A foreign person is defined as an individual who is not ordinarily a resident in Australia or a corporation where one or more foreign persons hold a combined total of 20 per cent or more of the issued shares, units or voting power.
In addition, from September 2018, a foreign person with company interests of 2.5 per cent or more in an Australian media company is required to notify the ACMA of its interests within 30 days.6 The ACMA includes details of these notifications in a publicly available register of foreign owners of media assets.
The foreign investment notification rules for the media and telecommunications sectors apply even to investors from countries that have free trade agreements with Australia, such as Chile, China, Japan, New Zealand, South Korea and the United States.
iv Transfers of control and assignments
A carrier licence cannot be assigned or transferred, since it is granted to a particular entity. Spectrum can be freely traded in the form of spectrum trading units (STUs), which refer to a particular block of bandwidth within a given geographic area. A spectrum licensee can transfer some or all of the STUs within the scope of its licence.7 This means that spectrum licences can effectively be divided or amalgamated to respond to market-based needs.
Apparatus licences are also generally transferrable. An application must be lodged to the ACMA and be signed by both the original licensee and the proposed new licensee. The ACMA has the power to declare that particular types of apparatus licence are not transferrable or that, in specified circumstances, an apparatus licence is not transferrable.
Mergers and acquisitions in the TMT sectors are subject to the general merger control regime overseen by the ACCC. Under this regime, there is no requirement for parties to a merger to notify the ACCC before completing a merger. However, under Section 50 of the CCA, the ACCC (or a third party) can investigate a merger and take court action if a merger or acquisition would have the effect or likely effect of substantially lessening competition in any market. If the parties to a merger want to obtain greater certainty in relation to the competition risks of the merger, there are two optional pre-merger approval processes that a party may apply for:
- merger authorisations: the ACCC will grant a merger authorisation if either the proposed acquisition would not be likely to substantially lessen competition, or the likely public benefit from the proposed acquisition outweighs the likely public detriment. If the ACCC grants a merger authorisation, the ACCC or a third party cannot take any action in respect of the merger under Section 50 of the CCA. The ACCC must make a determination within 90 days (unless that time period is extended with the consent of the applicant). Failure by the ACCC to make a determination within the 90-day time limit is deemed as a refusal to grant authorisation.
- informal merger review: the ACCC provides an indication of its views on whether a merger is likely to breach Section 50 of the CCA. While an informal merger clearance may provide merger parties with a significant level of comfort regarding the ACCC's position, it does not prevent the ACCC or a third party from taking action against the merger parties at a later date under Section 50 of the CCA. There are no formal time frames within which the ACCC must provide informal clearance; however, the indicative time frame for this process is six to eight weeks.8
In undertaking a media merger assessment, the ACCC will consider the impact of the proposed merger on competition and media diversity, access to key content, the impact of technological change, two-sided markets and network effects, bundling and foreclosure, and minority shareholdings. An applicant or person who has a sufficient interest in a merger authorisation may appeal an ACCC determination to the Australian Competition Tribunal.
Following its Inquiry into Digital Platforms, the ACCC has recommended changes to Australia's merger laws to expressly require consideration of the likelihood that an acquisition could remove a potential competitor from a market (e.g., the acquisition of start-ups by large digital platforms) and the amount and nature of assets, including technology and data, that may be acquired through the acquisition.9 The ACCC also recommended that large digital platforms agree to a notification protocol, under which they would be required to provide advance notice of the acquisition of any business with activities in Australia.10 The government's Response and Implementation Roadmap for the Digital Platform Inquiry released on 12 December 2019 following a 12-week consultation period did not include a commitment to amend merger controls laws to specifically include an assessment of data and technology in a merger context. Instead, the government committed to commencing a broad consultation process during 2020 on the proposed amendments, which, at the time of writing, had not been commenced.
Telecommunications & internet access
The government does not directly subsidise the construction of broadband infrastructure or the use of retail broadband services. However, in 2009, the government set up a state-owned corporation, NBN Co (known as nbn) to design, build and operate a wholesale-only next-generation network. Currently, nbn relies on government funding, and earns revenue primarily by selling wholesale (Layer 2 bitstream) access to its network to retail telecommunications operators.
i Internet and internet protocol regulation
The ACMA considers providers of managed VoIP services to be carriage service providers. This is the same regulatory category that mobile and fixed telephony providers sit within, and involves a range of regulatory obligations, including membership of the TIO scheme, consumer protection obligations, obligations to comply with the numbering plan and provide number portability, and lawful access and interception obligations.
Moreover, VoIP services that allow users to make calls to, and receive calls from, traditional PSTN telephony services are treated as standard telephone services. This entails certain additional obligations, such as providing operator and directory assistance services, access to emergency call services, access to the National Relay Service, and itemised billing.
OTT VoIP services (provided over an existing carriage service), as well as OTT messaging services, are not subject to the same degree of regulation. OTT IP-based services will be subject to new industry assistance and access laws (see Section III.iv), but the Department of Communications and the Arts and the ACMA do not currently have any other definitive plans to regulate these services more broadly.
ii Universal service
A universal service regime was created by the Telecommunications (Consumer Protection and Service Standards) Act 1999. The regime requires Telstra, which has been designated as the default universal service provider, to ensure that standard telephone services and payphones are reasonably accessible to all Australians on an equitable basis (referred to as the Universal Service Obligation (USO)). The supply of standard telephone services under the USO is subject to a range of minimum performance standards and benchmarks, including maximum periods for connecting a new service and for rectifying a fault.
The statutory USO is implemented through the Telstra Universal Service Obligation Performance (TUSOP) Agreement entered into between the government and Telstra in July 2012. The TUSOP Agreement lasts for a period of 20 years, and involves the government paying Telstra A$253 million per annum for the supply of standard telephone services and A$44 million per annum for the supply, installation and maintenance of payphones under the USO.
The costs of the universal service regime are funded through the telecommunications industry levy, which is imposed on all carriers with eligible revenue in excess of A$25 million. The universal service regime has been overseen by the Department of Infrastructure, Transport, Regional Development and Communications since 1 July 2015. It was previously administered by the Telecommunications Universal Service Management Agency. The levy is calculated in accordance with the prescribed formula in the Telecommunications (Consumer Protection and Service Standards) Act 1999 (TCPSS Act).11 On 29 October 2019, a ministerial determination was made under Section 50(2) of the TCPSS Act to modify the formula used to determine the levy amount so as to provide for the collection of an additional A$8 million.12
In December 2017, the government announced its intention to establish a universal service guarantee (USG). This follows the recommendations by the Regional Telecommunications Independent Review Committee (RTIRC) in its final report released on 22 October 2015. The RTTC's final report recommended reforms the universal service regime and to provide subsidies for nbn's non-commercial fixed wireless and satellite services through a new consumer communications fund. A subsequent inquiry into the USO by the Productivity Commission recommended that the USO be wound up by 2020 and to address any remaining availability, accessibility or affordability gaps through specific government programmes rather than by way of an industry levy. The government established a USO Taskforce responsible for developing delivery options for the USG, including examining the feasibility and cost implications of providing alternative means for providing voice services to premises in nbn's satellite footprint, the potential impact on nbn costs and its network design if premises serviced by Telstra under the USO migrate to the nbn network, and where and when it may be appropriate for Telstra to reduce the number of payphones provided under the USO.
The USG will provide all Australian premises (regardless of their location) with access to both voice and broadband services delivered on a commercial basis by the market in the first instance, or targeted government measures where warranted.13 The USG will leverage the nbn network to deliver broadband services (with access to the network underpinned by the statutory infrastructure provider regime) and will continue to use Telstra's existing copper and wireless networks in rural and remote Australia for the provision of voice services in the nbn fixed wireless and satellite areas.
The Telecommunications Reform Package (TRP) was introduced by way of the Telecommunications Legislation Amendment (Competition and Consumer) Act 2020 and Telecommunications (Regional Broadband Scheme) Charge Act 2020, which came into force on 26 May 2020 and introduced:
- the Statutory Infrastructure Provider (SIP) regime;
- the Regional Broadband Scheme; and
- other reforms to carrier separation arrangements.
The SIP regime forms part of a new USG and commenced on 1 July 2020. The SIP regime establishes nbn as the default SIP for all of Australia after the roll-out of the network is complete, with corresponding SIP obligations to connect premises to the nbn network and supply superfast broadband services with peak transmission speeds of at least 25Mbps download and 5Mbps upload to retail service providers on reasonable request. Under the SIP regime, a SIP is required to connect premises to a qualifying fixed-line telecommunications network in the first instance, and where connection to the qualifying fixed-line telecommunications network is not reasonable, the SIP must provide connection via a qualifying fixed wireless or satellite network. For fixed-line and fixed wireless networks, the services supplied by SIPs should enable retail service providers to provide consumers with the ability to make and receive voice calls but is not required to supply a standalone voice service.
Other network operators may become the SIP by declaring a nominated service area (such as when installing telecommunications network infrastructure in new developments or existing buildings) or for designated service areas declared by the Minister (for example, new developments installed prior to 1 July 2020 where there is only one provider of superfast broadband services for that area). The Minister has formally designated 17 alternative SIPs and 1,592 designates service areas where nbn is not the SIP. The Minister may also make, and SIPs would be required to comply with, standards, rules and benchmarks setting out more detailed requirements such as timeframes for providing access and rectifying faults.
The Regional Broadband Scheme (RBS) will commence on 1 January 2021 and requires carriers to pay A$7.10 per month for each premises on their network with an active high-speed superfast broadband service provided over a local access line serviced by fibre-to-the-premises (FTTP), fibre-to-the-node (FTTN), fibre-to-the-basement (FTTB), fibre-to-the-curb (FTTC) and hybrid fibre-coaxial (HFC) networks. The RBS is intended to provide transparent and sustainable industry funding for the loss-making fixed wireless and satellite networks in regional Australia that are owned by nbn. This funding, which is expected to amount to A$9.8 billion over 30 years, will have a 95 per cent reliance on payments from nbn itself, with the remaining 5 per cent paid for by competing nbn-comparable wholesale broadband networks.
ACMA will oversee the RBS scheme and, from October 2021, carriers will be required to report their chargeable premises and reportable associations for the previous financial year to it. The ACCC will review the charge amount at least once every five years to ensure it accurately reflects the size of the fixed-line broadband market and the reasonable costs of nbn's fixed wireless and satellite networks. The Telecommunications (Regional Broadband Scheme) Charge Act 2020 also requires the ACCC to immediately commence a review of the modelling used for the RBS and report its findings in October 2020.
Amendments to carrier separation rules commenced on 25 August 2020 allowing network providers to run separate wholesale and retail businesses on a 'functionally separated' basis subject to the approval of the ACCC. The new carrier separation rules allow the ACCC to make class exemptions14 from the rules and also removes the wholesale-only obligation for networks servicing small businesses. Class exemptions given by a determination are limited to persons, or associated groups, who have a maximum of 2,000 fixed-line residential customers, or if a higher number (not exceeding 12,000 residential customers) is specified in the regulations, that higher number. The class exemption will cease to apply once this specified threshold is exceeded.15
Under the new carrier separation rules, the 'level playing field' obligations in Part 7 of the Telecommunications Act 1997 and associated CCA provisions have been repealed and replaced by the existing Superfast Broadband Access Service Declaration made by the ACCC on 29 July 2016 (and which expires on 28 July 2021) and requires all high speed broadband networks to supply wholesale services on a non-discriminatory basis. NBN Co Limited (nbn) will remain as a wholesale-only carrier and Telstra, as the key market operator, will remain subject to the existing strict obligations to separate its wholesale-only and retail obligations.
The government's updated Telecommunications Infrastructure in New Developments (TIND) policy issued on 1 September 2020 (the 2020 TIND policy) replaces the TIND policy that took effect on 1 March 2015 under which nbn had an infrastructure provider of last resort (IPOLR) obligation to roll out high-speed broadband infrastructure to certain developments on request from the developer. The 2020 TIND policy has been revised to reflect the new SIP regime, gives greater flexibility to nbn in servicing new developments and applies to the provision of telecommunications infrastructure in all developments (including historic and future developments).16
The government (in partnership with the state and territory governments) has also invested in the improvement of mobile coverage in remote and regional Australia through its mobile black spot programme, which was launched in June 2015. The mobile black spot programme is over halfway complete, with 852 base stations activated (as at 30 June 2020), and all 1,229 base stations funded under the first five rounds of the programme are expected to be operational by 30 June 2022.
In May 2018, the Department for Communications and the Arts appointed an independent committee to undertake a review of regional telecommunication services (2018 Regional Telecommunications Review), as is required every three years by Part 9B of the Telecommunications (Consumer Protection and Service Standards) Act 1999. The 2018 Regional Telecommunications Review considered how rural Australians could maximise the economic and social benefits that modern telecommunication services provide and undertook an analysis of the coverage achieved under the mobile black spot programme. The committee's report was delivered to the Minister for Regional Communications on 30 September 2018, and published in December 2018. The committee made 10 recommendations, including that the government make no changes to the current USO arrangements until there are fit-for-purpose alternative voice options for consumers served by satellite; that the government commits to a large-scale, multi-year Stronger Regional Connectivity Package to improve broadband and mobile services in areas of high economic, social and public safety significance; and that industry bring forward new and innovative solutions for providing voice services in rural and remote Australia.
In March 2019, the Australian government published its response to the 2018 Regional Telecommunications Review and, as part of its response, announced that it will invest a further A$160 million towards the mobile black spot programme.
iii Restrictions on the provision of service
There is currently no price regulation of retail telecommunications services. On 18 March 2015, the then Minister of Communications and the Arts revoked retail price control arrangements that applied to Telstra's fixed-line voice services. However, the Minister retains the power to reintroduce retail price regulation at a future date.
Wholesale access regulation is effected through the telecommunications-specific access regime in Part XIC of the CCA. The ACCC has the power to declare a listed carriage service or a service that facilitates the supply of a listed carriage service. Once a service is declared by the ACCC, all providers of that service are subject to a range of standard access obligations. These include an obligation to supply the service on request (with certain exceptions) and to take all reasonable steps to ensure that the technical and operational quality of the service (and of fault detection, handling and rectification) that is equivalent to that which the access provider provides to itself.
The telecommunications services declared by the ACCC include, among others, fixed origination and termination, mobile termination, unconditioned local loop service, line sharing service, wholesale line rental, wholesale ADSL service, and domestic transmission capacity service.
On 31 August 2018, the ACCC announced an inquiry seeking views on the future of the existing declarations, due to expire on 31 July 2019, in respect of the unconditioned local loop service, line sharing service, wholesale line rental, PSTN originating access (OA) and PSTN terminating access (TA). On 26 November 2018, the ACCC made its final decision to extend its declarations of these services until 30 June 2024.
In October 2017, the ACCC decided not to declare wholesale domestic mobile roaming services. Legal proceedings commenced by Vodafone, challenging aspects of the conduct of the inquiry, were dismissed by the Federal Court on 21 December 2017.
On 7 August 2018, the ACCC commenced an inquiry into whether to extend, vary, revoke or re-make the domestic mobile terminating access service (MTAS) declaration. The MTAS is a wholesale service that allows consumers on different mobile networks to make calls and send SMSs to each other. On 28 June 2019, the ACCC concluded its inquiry into the MTAS and released its final report on its findings, including that it will continue the declaration for voice terminating services until 2024, but will not extend declaration of the SMS MTAS service beyond the expiry of the current declaration on 1 January 2020.17
The nbn network, which is a wholesale-only network, is subject to a different set of access obligations. As the network operator, nbn has an obligation to supply any declared services that relate to nbn on request to an access seeker (with limited exceptions), and to not discriminate between access seekers in doing so. In November 2017, the ACCC announced a public inquiry into nbn's wholesale service standard levels. The ACCC accepted a court-enforceable undertaking (on 11 September 2018) by nbn to make interim changes to its wholesale service level commitments and associated rebates. Further changes to nbn's wholesale service levels have also been proposed, as discussed in Section VI below. There is no net neutrality-style regulation in Australia that prohibits carriage service providers from favouring or excluding certain content, applications, services or devices.
The Spam Act 2003, administered by the ACMA, makes it illegal to send commercial electronic messages with an Australian link without the express or inferred consent of the recipient. Electronic messages include emails, instant messages and messages sent using the SMS and MMS services. Commercial electronic messages must also contain a functional unsubscribe mechanism and accurate information about who authorised the sending of the message. Exemptions from these rules apply for purely factual messages, as well as messages from government bodies, registered political parties, registered charities and educational institutions (sent to current and past students and their households).18
In addition, the ACMA administers a Do Not Call Register, designed to prevent unsolicited telemarketing calls being made to fixed and mobile telephone numbers as well as marketing faxes. Users can register their telephone or fax number on the Do Not Call Register for free. Once a number is registered, it is prohibited to make unsolicited telemarketing calls or send marketing faxes to that number. Exemptions apply for public interest calls and faxes, including from government bodies, registered political parties, registered charities, educational institutions and political candidates.19 In 2017, the ACMA introduced the Telemarking and Research Calls Standard 2017, establishing minimum requirements for those making telemarketing and research calls, including a requirement to ensure calling line identification is enabled and operational for at least 30 days from the date the call was made; minimum information that must be provided when making a telemarking or research call; calling times during which a telemarketing or research call is permitted to be made; and a requirement to immediately terminate a call in certain circumstances.
The Telecommunications Legislation Amendment (Unsolicited Communications) Bill 2019, currently before the Senate, will amend various legislation, including, inter alia, the Do Not Call Register Act 2006, to enable a consumer who registers on the Do Not Call Register to opt out of receiving phone calls from charities and the Spam Act 2003 to require political parties to provide an unsubscribe function for all unsolicited electronic communications containing political content. The Senate referred the Bill to the Senate Environment and Communications Legislation Committee for inquiry, which recommended that the bill not be passed as it would, if enacted, unduly affect the charity sector.20
The ACMA also administers a number of other standards and codes of practice, including the Telecommunications Consumer Protections Code, which set out various specific requirements that carriage service providers and other entities are required to comply with (as applicable). In 2018, the ACMA introduced a range of new rules relating to the supply of telecommunications services, which were designed to improve the overall experience of end-users acquiring telecommunications (including nbn) services. These include:
- the Consumer Complaints Handling Industry Standard,21 which came into effect on 1 July 2018 and introduced new complaints handling rules designed to ensure carriage service providers effectively manage complaints in relation to consumer problems with telecommunications services;
- the Consumer Complaints Record Keeping Rules,22 which came into effect on 1 July 2018 and introduced minimum record-keeping and reporting requirements to the ACMA, designed to allow carriage service providers and the ACMA to monitor industry complaints-handling performance and to identify new trends driving complaints;
- the NBN Consumer Information Standard,23 which came into effect on 21 September 2018 and introduced minimum information requirements, is designed to ensure carriage service providers give all the necessary information to consumers to allow them make informed choices about nbn services; and
- the NBN Continuity of Service Standard,24 which came into effect on 21 September 2018 and puts in place new rules to make sure that consumers are not left without a working telecommunications service during their migration to the nbn network.
The ACMA registered the revised TCP Code in June 2019, which commenced on 1 August 2019.25 The revised TCP Code contains new credit assessment provisions, requiring carriage service providers to assess new customers and those moving from pre to post-paid services capacity to pay for contracts greater than A$1,000; stricter obligations on carriage service providers to ensure selling practices are fair and transparent, clearer rights for consumer access to records relating to their contracts, and aligns complaints rules with the Consumer Complaints Handling Industry Standard.
Lawful access and interception is governed by the Telecommunications (Interception and Access) Act 1979. Law enforcement agencies have the power to intercept telecommunications provided that they obtain a warrant from an eligible judge or member of the Administrative Appeals Tribunal. The Australian Security Intelligence Organisation (ASIO) only requires a warrant from the Attorney General to engage in the same activities. The interception regime is technology-neutral and applies to voice calls, faxes, SMS and MMS messages and IP-based communications (including email).
Carriers and carriage service providers are obliged to provide and maintain facilities enabling them to execute interception warrants. Carriers and carriage service providers must also lodge annual interception capability plans with the ACMA and the Attorney General's Department. The costs of maintaining interception capabilities must be covered by carriers and carriage service providers, even though the requesting agencies pay for the costs of accessing the intercepted communications.
Australia acceded to the Council of Europe Convention on Cybercrime in March 2013. To implement its obligations under the Convention, a number of amendments were made to the existing legislation.26 These amendments allow law enforcement agencies and ASIO to issue notices to carriers that require them to store communications (including the content of communications) that assist in a specified domestic or foreign criminal or national security investigation. Unlike interception requests, these preservation notices do not require a warrant. However, the stored communications can only be accessed through a warrant issued by a judge or member of the Australian Appeals Tribunal.
From 18 September 2018, following the introduction of the Telecommunications and Other Legislation Amendment Act 2017, all carriers, carriage service providers and carriage service intermediaries are legally required to do their best to protect telecommunications networks and facilities owned, operated or used by the carrier or provider from unauthorised interference or unauthorised access to ensure the confidentiality of communications carried on, and of information contained on, telecommunications networks or facilities; and the availability and integrity of telecommunications networks and facilities. For carriers and carriage service providers, this obligation includes a requirement to maintain competent supervision of, and effective control over, telecommunication networks and facilities owned or operated by them. In addition, carriers and carriage service providers are required to notify the Communications Access Coordinator of proposed changes to their networks and services that could have a material adverse impact on their ability to comply with these new obligations.
Carriers and carriage service providers are also subject to a mandatory metadata retention regime.27 This requires them to retain, for a period of two years, metadata relating to the communications of their subscribers (e.g., the phone numbers of the parties to a call or message, the time and duration of a call, the email address of the sender and recipient, and the time the email message was sent). The regime does not require retention of the content of a communication or web-browsing history. The Parliamentary Joint Committee on Intelligence and Security (PJCIS) commenced a review of the mandatory data retention regime, due to report by 13 April 2020, as prescribed by Part 5-1A of the Telecommunication (Interception and Access) Act 1979. On 15 April 2020, the PJCIS announced that it is in the process of working on its report, which was expected to be tabled in Parliament by the end of July 2020. At the time of writing, the report had not been tabled.
On 8 December 2018, the government enacted new industry assistance and access laws under the Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018. Under these industry assistance and access laws, domestic and foreign designated communication providers can be requested to provide voluntary assistance (via a technical assistance request (TAR)), or be required to provide assistance (via a technical assistance notice (TAN)), including, where required, to develop a capability to provide the assistance requested (via a technical capability notice (TCN)), to law enforcement and security agencies to access certain communications. The PJCIS referred the Assistance and Access Act for independent review by the Independent National Security Legislation Monitor to consider whether the Assistance and Access Act contains appropriate safeguards for protecting the rights of individuals, remains proportionate to the threat to national security and remains necessary. The Independent National Security Legislation Monitor published its report on 9 July 2020, finding that the Assistance and Access Act is necessary (subject to some exceptions), but could only be compliant with the proportionality and proper rights protection requirements if the central recommendations of its report are implemented. The central recommendations include the removal of the ability for security agency heads to issue TANs and for the Attorney-General to approve TCNs; a requirement to vest issuing and approval powers of in the Administrative Appeals Tribunal in a way that will preserve and protect classified and commercial-in-confidence material and allow independent rulings on technical questions; and the creation of a new statutory office – the Investigatory Powers Commissioner – to assist in approving and issuing TANs and TCNs, to monitor the industry assistance and access regime, and to issue guidelines. At the time of writing, no amendments to the Assistance and Access Act have been proposed or tabled in Parliament as a result of these recommendations.
Personal information is regulated through the Privacy Act 1988 and the Australian Privacy Principles (APPs), which came into force in March 2014. The APPs apply to both government and private entities. In particular, the APPs require that, before an entity discloses personal information overseas, it must take reasonable steps to ensure that the recipient of the personal information does not breach the APPs (e.g., through a contractual obligation). Since 22 February 2018, APP entities have been required to notify the Office of the Australian Information Commissioner (OAIC) and affected individuals of eligible data breaches28 in respect of personal information.29 Under the Notifiable Data Breaches Scheme, APP entities can undertake remedial action to reduce the risk of serious harm of a data breach and the associated obligation to notify affected individuals (although the OAIC will still need to be notified).30 There are also a range of exceptions to the notification obligation, including where:
- the data breach has been reported by another entity holding that personal information;
- notification would likely prejudice an enforcement-related activity;
- the requirement to notify would be inconsistent with the secrecy provisions; or
- the Commissioner has declared that an entity does not need to provide such a notification.31
In addition, Part 13 of the Telecommunications Act 1997 requires carriers, carriage service providers, number database operators and emergency service operators to protect the confidentiality of certain information. This includes information or documents relating to the content of communications that have been, or are being, carried by carriers or carriage service providers, the carriage services supplied or proposed to be supplied to another person, as well as the affairs or personal particulars of other persons (protected information). Use and disclosure of protected information is a criminal offence unless permitted in certain limited circumstances, such as where authorised by law enforcement agencies or where reasonably necessary to prevent threats to life and health. Disclosure of protected information to ASIO and criminal law enforcement agencies is permitted in response to a valid authorisation made by ASIO or a criminal law enforcement agency and notified to the carrier or carriage service provider under Chapter 4 of the Telecommunications (Interception and Access) Act 1979 and which complies with the Telecommunications (Interception and Access) (Requirements for Authorisations, Notifications and Revocations) Determination 2018.
Compliance with the Privacy Act 1988 is overseen by the OAIC and compliance with Part 13 of the Telecommunications Act 1997 is overseen by both the OAIC and the ACMA.
The government is in the process of overhauling the current spectrum management system to replace it with a simplified singular licensing scheme. This aligns with the government's wider policy of deregulation.
In August 2015, the government announced that it will implement the key recommendations of the Spectrum Review Report undertaken by the Department of Communications and the Arts and the ACMA. The Report found that existing spectrum management arrangements were slow, rigid, administratively cumbersome and unnecessarily costly for users.
Spectrum pricing, including for Commonwealth-held spectrum, was considered separately from the Radiocommunications Bill 2017. In February 2018, the Department of the Communications and the Arts published the final recommendations accepted by the government with respect to the spectrum pricing review32 and Commonwealth-held spectrum review.33 The spectrum pricing review included 11 final recommendations in respect of ACMA's allocation decisions, market-based allocations, administered allocations and the cost recovery framework.
In October 2019, the government outlined a staged approach to amend the existing Radiocommunications Act 1992 and committed to progressing a set of targeted amendments to update and streamline the Act. On 24 June 2020 the government commenced consultation on the Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 (Radiocommunications Bill 2020) in relation to these targeted amendments.
On 27 August 2020, the government introduced the Radiocommunications Bill 2020 into Parliament to give effect to the proposed reforms, including by:
- clarifying the roles of the Minister and the ACMA so as to provide the ACMA with responsibility for day-to-day spectrum management decisions while being guided by ministerial policy statements in the performance of its spectrum management functions;
- requiring the ACMA to prepare and publish annual work programmes to provide transparency and clarity around its spectrum management functions;
- streamlining spectrum allocations and reallocation processes by providing the ACMA with greater flexibility to develop fit-for-purpose allocation arrangements;
- reducing regulatory barriers between licence types by extending licence terms for both apparatus and spectrum licences for up to 20 years, depending on the licence purpose, technology and investment cycles and long-term spectrum planning requirements, and for further licences issued for a period of 10 years or more, subject to a public interest test;
- streamlining device supply schemes and equipment regulation, including by giving the ACMA the ability to determine technical regulation requirements through equipment rules, to provide exemptions to facilitate testing, development and manufacturing of controlled devices, and by extending the regulation to intermediaries in the supply chain who are not manufacturers; and
- providing the ACMA with a greater and graduated range of enforcement mechanisms for breaches beyond the existing enforcement mechanism of institution of criminal proceedings.
At the time of writing, the Radiocommunications Bills 2020 is being considered by the Senate Environment and Communications Legislation Committee, which is expected to deliver its inquiry report by 4 November 2020.
In its five-year spectrum outlook for 2019 to 2023, the ACMA confirmed that it will implement the recommendations of the government's Spectrum Pricing Review and it has commenced consultations. The ACMA considers that while the recommendations of the government's Spectrum Pricing Review anticipated a new legislative framework and single licensing framework, much of the policy intent could also be implemented under existing legislation and later transitioned to new legislative arrangement (if required). The ACMA proceeded on this basis, and initiated four substantive programmes of work, including: (1) to further identify bands to transition from administratively set charges to competitive market-based allocation; (2) to develop and publish Spectrum Pricing Guidelines; (3) to review the ACMA's administratively prices spectrum and the formula used to set current apparatus licence taxes; and (4) to simplify industry's spectrum management cost recovery arrangement to ensure consistency with the Australian Government Charging Framework.
The final recommendations with respect to the Commonwealth-held spectrum review included recommendations to establish an advisory committee of relevant government agencies to provide advice to the Minister for Communications on issues of spectrum policy, improve transparency though publishing a consolidated report of Commonwealth spectrum holdings every two years, and exploring a whole-of-government approach to share and trade Commonwealth-held spectrum. The Commonwealth Spectrum Steering Committee has been formed and released its first biennial report on Government Spectrum Holding in April 2019.34
ii Flexible spectrum use
Currently, three types of licences are available under the Radiocommunications Act 1992: spectrum licences, apparatus licences and class licences. The existing licensing schemes are complex and quite rigid. This creates difficulty obtaining, transferring and trading licences.
The proposed Radiocommunications Bill 2017 proposed to introduce a flexible and simple single licensing system encompassing core conditions, including the relevant part of the spectrum, geographic information and payment of any applicable charges (including taxes). Under the Radiocommunications Bill 2017, broadcasting spectrum was proposed to be integrated into the general spectrum management framework.
Following consultation on its draft exposure Radiocommunications Bill 2017, the government announced on 24 October 2018 that it would, rather than completely rewriting the legislation, instead pursue a staged approach to modernising and amending the Radiocommunications Act 1992 through the Radiocommunications Bill 2020.
The multi-licensing system remains under the Radiocommunications Bill 2020. However, the proposed reforms introduce greater alignment between the various licence types, including by (1) extending the maximum licence term for both apparatus and spectrum licences for up to 20 years; (2) removing regulatory barriers that limit the issuance of both spectrum and apparatus licences in certain circumstances to enable the ACMA to issue the most appropriate licence in the circumstances; and (3) by clarifying the licence conditions that must be met in order for a licence to be issued or renewed, and consistent between licence types.
The integration and management of broadcasting spectrum is not being progressed under the Radiocommunications Bill 2020.
iii Broadband and next-generation mobile spectrum use
In October 2017, the government released a 5G directions paper, which outlined the immediate actions for government to take in order to support the timely rollout of 5G in Australia, including:
- making spectrum available for 5G in a timely manner;
- actively engaging in international spectrum harmonisation activities;
- streamlining arrangements to allow mobile carriers to deploy infrastructure more quickly; and
- reviewing existing telecommunications regulatory arrangements to ensure they are fit for purpose.
Separately, the ACMA has identified meeting unprecedented growth in demand for mobile broadband and next-generation services as a priority for the next decade.
In its five-year spectrum outlook for 2019 to 2023, the ACMA confirmed that its Mobile Broadband Strategy (released in February 2016) remains the basis for the ACMA's response to address the growth in demand for mobile broadband capacity, a key part of which is the articulation of a spectrum management process for the release of additional spectrum for mobile broadband. The 2019–2023 five-year spectrum outlook also included an updated mobile broadband work programme, which sets out the various mobile broadband spectrum planning projects being conducted by the ACMA. According to its draft 2020–2024 five-year spectrum outlook, the ACMA has commenced its work on the identification and implementation of the relevant outcomes from the 2019 World Radiocommunication Conference, including by testing industry appetite for prioritising the commencement of replanning work in the 40, 46 and 47GHz bands over the 1.5GHz band.35
The ACMA has also continued to undertake a number of other initiatives to progress spectrum management for 5G. In particular, in 2018 the ACMA turned its attention to higher frequencies to provide for shorter-range, higher capacity services that will result in ultra-fast wireless broadband communications to complement wide-area coverage in higher density areas. The 26GHz spectrum band is expected to enable the launch of a range of services using 5G technology, particularly by boosting the capability of the internet of things (IoT). Recognising that the 26GHz and 28GHz bands would likely be the first mmWave bands to be allocated internationally on a widespread basis for wireless broadband services, the ACMA commenced a review of the 26GHz and 28GHz bands throughout 2018 and 2019.36 Spectrum licences for the 26GHz band are planned be auctioned in March 2021 (see Section IV.iv).
In addition, the ACMA is exploring the use of its newly created area-wide apparatus licence (AWL) for use in the 26 and 28GHz bands.37 The ACMA created the AWL apparatus type licence in January 2020 to offer another form of licensed spectrum use in response to changes in technology and requests from spectrum users for additional flexibility within the apparatus licensing system.
Major Australian telecommunications companies commenced the roll-out of 5G in 2019. In November 2019, Optus, with 1,200 5G sites across Australia (as at September 2020), launched its 5G home broadband offerings.38 Telstra's 5G network is live in 46 cities and regional centres across Australia (as at September 2020) with plans to expand 5G network coverage to 75 per cent of the population by 2021.39 In March 2020, Vodafone switched on its first 5G tower, with TPG Telecom announcing plans to accelerate its 5G network roll-out to serve over 85 per cent of Australia's six largest cities by the end of 2021.40
In April 2018, the ACCC released its Communications Sector Market Study Final Report, detailing a number of recommendations on a wide range of competition and consumer issues in the communications market, including broadband and voice services, aggregation and transmission services, data centres and content delivery networks, and the IoT.
Australia has also been one of the global leaders in flagging national security concerns about the involvement of Chinese companies in the development of 5G networks. On 23 August 2018, the Departments of Home Affairs and Communications and the Arts issued a joint statement that effectively banned Huawei and ZTE from supplying equipment for 5G networks in Australia due to national security concerns inherent in the architecture of 5G. While not specifically listing either company in the statement, the departments stated that:
the government considers that the involvement of vendors who are likely to be subject to extrajudicial directions from a foreign government that conflict with Australian law, may risk failure by the carrier to adequately protect a 5G network from unauthorised access or interference [in accordance with their obligations introduced by the Telecommunications and Other Legislation Amendment Act 2017].41
iv Spectrum auctions and fees
Currently, the ACMA issues spectrum licences through auction, tender or price negotiation processes. The last spectrum auction for the 3.6GHz band was held in November and December 2018. In July 2018, the government announced allocation limits for participants in this auction. Those limits capped the total amount of spectrum that an auction participant could purchase in the 3.6GHz spectrum and were calculated inclusive of any spectrum in the 3.4GHz to 3.7GHz bands that an auction participant already held. As a result of these limits, carriers with significant holdings in the 3.4GHz to 3.7GHz bands, such as nbn and Optus, were largely precluded from participating in the auction. Separately, Vodafone and TPG announced, in connection with their proposed merger (which was opposed by the ACCC on 8 May 2019), that they formed a joint venture entity (Mobile JV) with the intention of acquiring 5G spectrum at the auction.
There were four winning bidders in the auction: Telstra Corporation Limited (with a winning bid of A$386,008,400); Mobile JV (with a winning bid of A$263,823,800); Optus Mobile Pty Ltd (with a winning bid of A$185,069,100); and Dense Air Australia Pty Ltd (with a winning bid of A$18,492,000).
On 25 October 2019, the Minister for Communications, Cyber Safety and the Art issued a spectrum re-allocation declaration to enable part of the 26GHz band (25.1 to 27.5GHz) to be reallocated for spectrum licensing in 29 cities and regional centres by auction in early 2021.42 This declaration is consistent with a spectrum reallocation recommendation provided by the ACMA in 2019 following consultation with industry.43
The next spectrum auction for the 26GHz band is scheduled to take place in April 2021. On 9 August 2020, the government announced allocation limits for participants in this auction. Those limits cap the total amount of spectrum an auction participant can purchase in the 26GHz band to 1GHz in each designated area.44 The allocation limits direction by the Minister follows advice provided by the ACCC on 26 February 2020 regarding the imposition of allocation limits to, and any competition issues associated with, the planned spectrum and apparatus licence allocation of the 26GHz and 28GHz bands. On 22 October 2020, the Minister gave a direction to the ACMA to allow successful bidders in the 26GHz spectrum auction to pay for their spectrum access charges in instalments over five years subject to interest equal to the government's projected cost of borrowing.45 The direction aims to reduce upfront capital costs and stimulate investment into Australia's 5G networks.
The ACMA maintains on its website a list of spectrum licences that are due to expire in the next 18 months, with details about whether they will be eligible for reissue.
The Spectrum Review Report expressed concern that under the current model, spectrum prices may not always reflect the true value of spectrum or the way that value changes over time. The Spectrum Review Report noted that if the legislative changes it recommended were to be introduced, the prices for spectrum would need to be transparently reviewed to ensure they remained appropriate and suggested that the ACMA might consider opportunity cost pricing or other forms of administered-incentive pricing.
The Spectrum Review Report also recommended that pricing and taxation arrangements for licences should be consolidated under the new single licence system. Currently, different licences are subject to different charges, taxes and fees. For instance, class licences are not associated with any fees, while apparatus licences incur a cost recovery charge plus a licence fee that differs depending on whether it is a receiver or a transmitter licence. The recommendations of the Spectrum Review Report were proposed to be implemented as part of the Radiocommunications Bill 2017; however, the government has since adopted a staged-approach to amend the Radiocommunications Act 1992 through the Radiocommunications Bill 2020, which retains the multi-licensing system.
i Australian content requirements
Australian content and commercial television is regulated by the Broadcasting Services Act 1992. The ACMA is responsible for administering the Broadcasting Services (Australian Content in Advertising) Standard 2018, which applies to commercial free-to-air television licence holders. These standards do not apply to cable television providers or online content distributors such as VOD platforms. The ACMA also administers the Classification (Publications, Films and Computer Games) Act 1995, and sets the Guidelines for Classification of Films and Computer Games that are used by the Classification Board to classify content. Content is assessed based on six classifiable elements and assigned a rating to reflect its likely impact on different viewers. Although technically some online content is considered classifiable, historically classification obligations are not enforced against online providers. The broadcasting of children's programme content is also regulated by the Children's Television Standards 2009, which sets quotas for children's and preschool children's programmes and restrictions of advertising during such programming.46
The Broadcasting Services (Australian Content) Standard 2016 provides that 55 per cent of broadcast transmission between 6am and midnight must be Australian programming, with sub-quotas for drama, documentaries and children's programmes. The Broadcasting Services (Australian Content in Advertising) Standard 2018, requires that at least 80 per cent of advertising time be used for Australian-produced advertisements.
For radio, under the Commercial Radio Code of Practice and Guidelines 2017, a minimum amount of Australian music content (between 5 to 25 per cent depending on the type of content) is required to be broadcast by commercial radio licensees between 6am and midnight each day. Certain formats of service, such as open-line, news, talk and sport content, are excluded from this requirement. Additionally, radio broadcasters must disclose commercial or other arrangements, such as sponsorships, that could affect reporting of current affairs under the Broadcasting Services (Commercial Radio Current Affairs Disclosure) Standard 2012.
The ACMA also administers the new rules introduced by the Broadcasting Legislation Amendment (Broadcasting Reform) Act 2017, which increased the minimum requirements for broadcasting material of local significance applying to commercial television networks covering more than 75 per cent of Australia's population. These new requirements commenced on 17 April 2018 and requires the following licence holders to broadcast minimum amounts of 'material of local significance':
- regional commercial broadcasters in the licence areas of Northern NSW, Southern NSW, Regional Victoria, Regional Queensland and Tasmania;
- licence holders in five aggregated markets in Regional Queensland, Northern New South Wales, Southern New South Wales, Regional Victoria and Tasmania; and
- a licence holder affected by a 'trigger event' in a non-aggregated market.47
It also increased the required amount of local content points to 900 per six-week period following a 'trigger event' or a change in control of a regional commercial television licence that results in it being in a group whose combined licence area populations exceeds 75 per cent of the Australian population.
On 11 June 2020, the government introduced into Parliament the Broadcasting Services Amendment (Regional Commercial Radio and Other Measures) Bill 2020, which proposes to relax some of the elements of the local content obligations by deeming a licensee in a regional or remote licence area, who is unable to meet the multi-channel quota of 1,460 hours in a particular year, to have met the requirement for that year if the amount of Australian content broadcast by the licensee on their multi-channel during that year is not less than the amount of Australian content broadcast on the equivalent metropolitan multi-channel during the same year.48 In addition, the Bill aims to provide greater flexibility to commercial radio broadcasting licensees by allowing regional commercial broadcasting licensees to split exemption periods from local news and information content obligations into two periods, together totalling no more than five weeks. At the time of writing, the Bill was still being considered by Parliament.
In recognition of the significant impact of the covid-19 pandemic on the television production sector, the government announced, and the ACMA agreed to provide, temporary relief (by not taking enforcement action for non-compliance for the period up until 31 December 2020) for Australian drama, documentary and children's programme quota obligations on commercial television licensees and the minimum levels of expenditure by subscription television broadcasting services on new eligible drama requirements. There was no change to the requirement for broadcasters to meet the overall 55 per cent Australian content obligation.
In addition, due to the impact of the covid-19 pandemic on the availability of, and ability to source local news content, the ACMA agreed to provide reasonable and practical temporary relief for trigger-event affected regional commercial stations in relation to the minimum number of weekly eligible local news, weather bulletins and community announcements required to be broadcast from 1 March 2020 to 30 June 2020 and extending the submission deadline of annual compliance reports to 31 December 2020.
ii Classification and censorship
An amendment to the Classification (Publications, Films and Computer Games) Act 1995 was enacted in September 2014 that allowed classification bodies to authorise the use of automated classification tools for certain content. This makes obtaining a classification significantly cheaper and easier. When this amendment was being considered, legislators expressed the hope that this would lead to increased classification rates for apps and online content.
Advertising restrictions are enforced by both the ACMA and the Advertising Standards Bureau. The Advertising Standards Bureau administers several industry- and target audience-specific codes of practice (such as the Commercial Radio Code of Practice and Guidelines 2017 and the Commercial Television Industry Code of Practice 2015), including advertising codes applicable to children, food and beverages and environmental claims. The ACMA also administers a number of codes of practice applying to commercial free-to-air TV, radio, pay-TV and online services that prohibit gambling advertisements during the broadcast of live sports between 5am and 8.30pm and otherwise restrict gambling advertising during the broadcast of live sports at other times of day. These codes of conduct came into effect on 30 March 2018, except for the code of conduct applying to online services, which came into effect on 28 September 2018.
iii Anti-piracy regulation
An amendment to the Copyright Act 1976 was introduced in 2015 to allow a party to apply to the Federal Court to grant an injunction to require a carriage service provider to take reasonable steps to disable access to a website where the primary purpose of that website is to infringe, or to facilitate the infringement of, copyright. There has been continued action by content owners requiring ISPs to block websites in Australia that host content infringing on copyrights since the introduction of these provisions in 2015. According to the Site Blocking Efficacy: Australia Report released in February 2018, site blocking laws in Australia have resulted in a 53.4 per cent reduction in usage of blocked sites since the blocking regime began. In February 2018, the Department for Communications and the Arts announced its review of the Copyright Amendment (Online Infringement) Act 2015, including the effectiveness and efficiency of the mechanisms and processes of the site blocking laws.49 The Copyright Amendment (Online Infringement) Act 2018 came into force on 11 December 2018, and amended (among other matters) the threshold for capturing overseas online locations to those with the primary purpose or effect of infringing copyright; reducing the evidentiary burden on copyright owners; providing courts with the power to order search engines to demote or remove search results for infringing sites; and enabling the minister to declare that particular online search engine providers be exempt from the scheme. As a result of these amendments, copyright owners have greater options to fight piracy, including by seeking injunctions against a broader range of infringing websites and search engines and the ability to block proxy and mirror sites that reproduce this content.
In March 2018, the Department of Communications and the Arts commenced consultation on the Copyright Modernisation Review, the result of copyright reform options recommended by the Productivity Commission Inquiry into Australia's Intellectual Property Arrangements. The focus of the review was to consider whether there is general support for the modernisation of the Copyright Act given the impact of the digital world when creating, accessing and distributing copyright material, including whether defences should be expanded to apply in the technology sphere by introducing a fair dealing defence for incidental or technical use and protection for text and data mining. A final report has not yet been released.
iv Internet-delivered video content
In the past few years, traditional broadcasters have been launching online services including catch-up television and VOD offerings. At present, these services still complement rather than replace free-to-air broadcasts, so there is minimal disadvantage to consumers without internet access.
The communications sector market study issues paper released in September 2016 identified the popularity of streamed video content as a significant driver of demand for data services, and flags this as a factor for consideration when assessing the need and incentive for investment to improve data availability. The issues paper noted that video accounted for around 69 per cent of all internet traffic in Australia in 2015, and is expected to increase to 82 per cent by 2020. New and emerging applications, including ultra high-definition video (4K and 8K), 360 video or augmented or virtual reality games, are also expected to increase in popularity in Australia, placing further constraints on data. Although it is expected that advanced video compression techniques may provide some relief. In April 2018, the ACCC released its final report for the communications sector market study and noted that while OTT services bring benefits to fixed and mobile broadband service providers in terms of increasing demand for access and data, service providers may face a relative decline in revenue as OTT content services capture larger proportions of consumers' spend. The ACCC notes that as a result, broadband service providers continue to acquire and distribute content both to recapture value from OTT providers and to differentiate their service offerings from other broadband service providers and mobile service providers. Traditional content providers, such as Foxtel, have also continued to acquire exclusive rights for premium sports and other content to maintain their audience and advertisement shares and have sought to utilise OTT distribution to expand their reach across increasingly fragmented audiences, though the significant losses recently incurred by Foxtel are expected to lead to a significant reduction in expenditure on this type of content.
Online content is subject to regulation under Schedules 5 and 7 of the Broadcasting Services Act 1992 (Online Content Scheme). This is a light-touch regime compared with the content and classification restrictions imposed on traditional broadcasters discussed above. Responsibility for administering the Online Content Scheme switched from the ACMA to the eSafety Commissioner on 1 July 2015. The remit of the Office of the Children's eSafety Commissioner was expanded in June 2017 with the Enhancing Online Safety for Children Amendment Act 2017, which transformed the Children's eSafety Commissioner into the eSafety Commissioner. The Commissioner has the power to investigate complaints about online content and order that prohibited content be taken down if it is hosted in Australia. Content is determined to be prohibited if it would be refused classification or classified as X18+ under Australia's content classification regime. The eSafety Commissioner's responsibilities were expanded in June 2017, including assuming responsibility for the administration of the takedown notice scheme under the Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Act 2018. In June 2018, civil penalties were introduced in respect of non-consensual sharing of intimate images, with individuals and corporations facing civil and criminal penalties for failing to remove an image when requested to do so by the eSafety Commissioner.
In response to the failure by technology companies to remove the content (including video and livestreaming) associated with the Christchurch terrorist attack, in April 2019 the government enacted the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act. The Act imposes new obligations:
- on ISPs, content and hosting service providers to notify the Australian Federal Police of the existence or accessibility of abhorrent violent material through its services; and
- on content and hosting service providers to expeditiously remove or cease to host abhorrent violent material.
Breaches of these obligations are criminal offences attracting significant penalties. In particular, a failure to expeditiously remove or cease to host abhorrent violent material can lead to up to three years' imprisonment and fine of up to A$2.1 million for an individual, or a fine of up to A$10.5 million or 10 per cent of annual turnover (whichever is greater) for a corporation.
While some ISPs voluntarily blocked websites that streamed or hosted footage of the Christchurch terrorist attack, the eSafety Commission exercised its powers50 in September 2019, by directing ISPs to block eight websites that were still hosting footage of the attack. This follows a government-convened taskforce (including ISPs and digital platforms representatives) and the establishment of an Australian Taskforce to Combat Terrorist and Extreme Violent Material Online (the Australian Taskforce), which called for legislative amendments to establish a content blocking framework for terrorist and extreme violent material online in crisis events. On 30 June 2019, the Australian Taskforce released a Report providing advice and identifying actions and nine key recommendations,51 consistent with the Christchurch Call to Action, for governments and industry to combat terrorist and extreme violent material online. This included a recommendation for the eSafety Commissioner to develop a protocol, in consultation with the Communications Alliance, to govern the interim use of the eSafety Commissioner's powers to direct ISPs to block websites hosting offending content while a legislative framework is developed. As noted earlier, there is no net neutrality regulation in Australia, meaning that ISPs are able to reach arrangements that allow them to control, and be compensated for, content transmitted over their networks.
The year in review
i Natural disasters and the covid-19 pandemic
Over the last 12 months, disasters of fire and floods and the covid-19 pandemic resulted in significant impacts on the telecommunications industry, including on network usage and resiliency.
The 2019–2020 bushfires on Australia's east coast directly or indirectly impacted 1,390 telecommunications facilities resulting in network outages of hours or more. On 18 February 2020, the ACMA commenced a review into the impact of the 2019-2020 summer bushfires on the telecommunications networks of Telstra, Optus, Vodafone and nbn and the actions they took to restore services and repair telecommunications networks. In its report to the Minister for Communications, Cyber Safety and the Arts, the ACMA highlighted that most of the outage incidents were cause by power outages rather than direct fire damage, with direct fire damage accounting for 1 per cent of network outages.52 The report did not draw conclusions about network resiliency or make any recommendations.
The telecommunications sector was represented in the inquiries that commenced following the 2019–2020 summer bushfires and which (among other matters) examined the preparedness and resiliency of telecommunications networks and operators to respond to, and recover from, natural disasters or bushfires. This included the Royal Commission into Natural Disaster Arrangements53 and the NSW Bushfire Inquiry. The Final Report of the NSW Bushfire Inquiry recommended for improvements to telecommunications to ensure the community can access information and to enhance firefighting capabilities, including by improving power backup arrangements; expanding information sharing arrangement; improving access to radio public safety networks; and for the federal government to allocate 10 + 10MHz as a dedicated spectrum for Public Safety Mobile Broadband at no cost to states and territories.54 The Royal Commission into Natural Disaster Arrangements is scheduled to report to the government by 28 October 2020.
During the covid-19 pandemic, network demand was amplified with individuals working and schooling from home. The nbn network saw a 47 per cent increase on pre-covid network traffic, with a 72 per cent increase in data being downloaded and a 95 per cent increase in data being uploaded during business hours.55 In response to the covid-19 pandemic and associated increase in network demand, nbn announced on 18 March 2020, an additional 40 per cent network capacity for ISPs at no additional cost. The offer was extended until 30 November 2020, at which point the additional free capacity would be tapered off during December 2020 and January 2021.
On 1 April 2020, the ACCC granted an interim authorisation under Section 88 of the CCA, allowing nbn and five retail service providers (Telstra, Optus, Vodafone Hutchison, TPG and Vocus) to form a Special Working Group to work together and take measures necessary to keep Australia's telecommunications networks operating effectively during the covid-19 pandemic, including by coordinating strategies to manage network congestion and resiliency; to take steps to address the significant surge in network demand; implementing a coordinated industry approach to manage customer economic hardship; restricting the supply of certain hardware or services; and sharing generic customer, usage and demand forecast information.56
On 17 April 2020, the government and Australia's major telecommunications companies agreed on a set of principles to help ensure Australians remain connected during the challenges and impacts of covid-19, including economic hardship measures and prioritising the connection and restorations of services for vulnerable customers or for premises where there is no fixed or mobile service.57 These principles were reviewed and updated on 30 June 2020, with a further review scheduled for 30 September 2020.58
On 15 April 2020, the government announced a package of measures to help sustain Australian media businesses, including (among other measures) the suspension of some content quotas of free-to-air and subscription television (see Section V.i).
ii nbn network
nbn completed the initial build of the nbn network in 2020. The initial build excludes premises in future new developments and a small proportion of premises defined as 'complex connections' (including properties that are difficult to access and culturally significant areas and heritage sites). The number of premises considered ready to connect increased from almost 10 million in June 2019 to 11.7 million in June 2020. Similarly, the number of premises with active nbn services increased from 5.5 million in June 2019 to 7.3 million in June 2020.59 In addition to completing the initial build during financial year 2019–2020, nbn:
- expanded its services to the competitive enterprise markets, primarily through nbn Enterprise Ethernet the introduction of nbn Business Satellite Services in August 2019;
- launched the Regional Development and Engagement business unit, which addressed a key recommendation in the 2018 Regional Telecommunications Review to assign responsibility for improving nbn's regional remote assets to a senior executive member;60
- consulted with the broader industry on a range of customer experience outcomes to be underpinned by the Wholesale Broadband Agreement 4;
- provided support and connectivity during natural disasters and the covid-19 pandemic; and
- completed its inaugural long-term borrowing from private debt markets, raising A$6.1 billion.61
The nbn network makes use of the optimised multi-technology mix initially set out in the Minister of Communication's statement of expectations to nbn of April 2014,62 and the updated statement of expectations to nbn on 24 August 2016.63 The multi-technology mix currently involves the use of FTTN, FTTB, hybrid fibre coaxial (HFC) and FTTC technologies alongside the initial FTTP, FTTC, fixed wireless and satellite technologies. In October 2017, nbn announced that it intends to use G.fast technology to provide access to faster speeds on the FTTC and FTTB networks. nbn's trials of G.fast technology to date have achieved speeds of between 500Mbps and 1Gbps in trials. In addition, nbn has announced that it is introducing DOCSIS64 3.1 on its HFC network.
In its Corporate Plan 2020, nbn unveiled its next A$4.5 billion phase of investment in the nbn network, including A$4.5 billion to extend fibre into the FTTN network footprint on-demand to allow more homes and businesses to access FTTP, A$700 million to improve the affordability and accessibility of nbn's enterprise-grade fibre services, capability increases to the HFC and FTTC network footprints to support the highest wholesale speed tiers, and in-home wiring initiatives to address performance issues.65
The Special Access Undertaking (SAU), accepted by the ACCC on 13 December 2013, applies to wholesale access to the nbn network until 2040. In May 2016 and June 2017, nbn submitted proposed variations to its SAU to give effect to the addition of FTTN, FTTB and HFC technologies to the nbn network; however, nbn withdrew these variations after the first proposed variation was rejected by the ACCC in March 2017, and following the ACCC's announcement, in October 2017, that it will delay its decision on the SAU variation until further progress has been made by nbn in relation to its consultation with customers on its pricing model. Following its continued public comments, and engagement with nbn and industry stakeholders during 2018 and 2019, in relation to potential future pricing and service standards regulation, nbn has not sought further variation of the SAU to give effect to the addition of FTTN, FTTB and HFC technologies to the nbn network. nbn separately submitted a variation in March 2019, seeking to extend the dispute resolution, endorsed network change and product development forum processes provisions that expired on 30 June 2019. The ACCC has not made a decision in relation to this proposed variation.
iii 5G spectrum auction
As discussed in Section IV.iv, the next spectrum auction for the 26GHz band is scheduled to take place in March 2021. On 9 August 2020, the government announced allocation limits for participants in this auction. Those limits cap the total amount of spectrum an auction participant can purchase in the 26GHz band to 1GHz in each designated area.
iv Regulatory activity by the ACCC
There has been an increase in regulatory action by the ACCC since 2018 to date:
- On 7 August 2018, the ACCC commenced an inquiry to decide whether to extend, vary or revoke the domestic mobile terminating access service (MTAS) declaration, or whether to make a new declaration. On 28 June 2019, the ACCC announced that MTAS for voice service should be regulated for a further five years and that regulation of MTAS for SMS services should not be extended due to increased competition from messaging services such as iMessage and WhatsApp. On 30 August 2019, the ACCC published its Discussion Paper for its inquiry into Mobile Terminating Access Service access determination seeking feedback on whether to extend, vary or revoke the current domestic MTAS final access determination.
- On 15 May 2020, the ACCC released a draft report, containing the ACCC's draft position on the price and non-price terms of access to be included in the MTAS final access declaration for industry consultation.66 The ACCC is due to make its decision by 6 December 2020.
- On 31 August 2018, the ACCC announced an inquiry into existing declarations (which were due to expire in June 2019) in respect of unconditioned local loop services (ULLS), line sharing services (LSS), wholesale line rentals (WLR), and fixed originating and terminating access services (FOAS and FTAS, formerly known as PSTN OA and PSTN TA respectively). The ACCC extended the declaration of Telstra's six fixed-line telecommunications, on 26 November 2018. On 12 December 2018, the ACCC commenced an inquiry into making final access determinations for Telstra's six fixed-line services and for wholesale ADSL, which considered the terms and conditions that should be covered in the final access determination, including the prices for the services and non-price terms and conditions for access. The ACCC released a draft decision, proposing to maintain the same terms of access as the existing final access determination (as at 30 June 2019) to apply until June 2024. On 28 November 2018, the ACCC made its final decision to extend its declarations of these services until 30 June 2024.
- On 12 September 2018, the ACCC accepted a court-enforceable undertaking from nbn to improve its wholesale arrangements with telecommunications retails service providers. The ACCC continued with its next phase of the nbn wholesale service standards inquiry and released a discussion paper on 7 December 2018, which considers whether regulation is required to improve customer experience on the nbn network. In October 2019, the ACCC released its draft decision that regulated terms are likely to be required to improve end user experience on the nbn and indicating that it intends to make a final access determination setting out a limited set of terms that relate to the supply of two of nbn's products, including its primary revenue-generating product, nbn Ethernet.67 On 2 April 2020 the ACCC announced that it will defer making a final decision in the inquiry in recognition of the need for industry members to respond to the changing traffic volumes and usage patterns and other issues due to the covid-19 pandemic. The ACCC published its position on the key matters examined during the inquiry to assist nbn and retail service providers in the context of the longer-term access arrangements currently being negotiated in the Wholesale Broadband Agreement 4 (WBA4).68 On 13 August 2020, nbn proposed to the ACCC that it would incorporate a set of changes into the WBA4 to address some key matters examined during the inquiry, including reductions to entry level pricing, measures to provide more certainty over future access product and pricing offers, and service standard commitments. On 20 August 2020, the ACCC resumed it inquiry and released a consultation paper on nbn's WBA4 proposal.69
- On 5 December 2018, the ACCC released a draft report proposing that its declaration or regulation of Australia's Domestic Transmission Capacity Service (DTCS) continue for further five years after the current arrangement expired on 31 March 2019. On 1 April 2020, the ACCC released its final report and varied and extended the declaration of DTCS.70
- On 14 October 2019, the ACCC commenced an inquiry into the prices that nbn charges access seekers to use the nbn network for supplying residential grade broadband services. On 2 April 2020, the ACCC released a position paper and put the inquiry on hold to allow stakeholders to focus on, and respond to, the covid-19 pandemic. On 13 August 2020, nbn proposed new access arrangements as part of its new WBA4 commencing on 1 December 2020. The proposed access arrangements include the introduction of a new modified entry-level bundle to support the supply of a basic-speed, high-quota retail product. The modified entry-level bundle modifies nbn's existing 12/1 Entry Level Bundle discount by introducing a range of new commitments, including price reductions of A$1.50 per month until May 2021, with a further A$2.20 price reduction for the remainder of the WBA4 term. On 20 August 2020, the ACCC resumed the inquiry and released a consultation paper on nbn's WBA4 proposal.71
- On 7 May 2020, the ACCC commenced a review of Division 12 of the Record-Keeping and Reporting Rules (relating to the collection of information on fixed voice, mobile and internet services on an annual basis from Telstra, Optus, Vodafone, iiNet and TPG), and the Internet Activity Record-Keeping and Reporting Rules (relating to the biannual collection of information from retail service providers on the number of retail services in operation). On 18 September, the ACCC released final drafts of the revised Division 12 and Internet Activity Record-Keeping and Reporting Rules and is undertaking industry consultation on implementation issues arising from the new rules.72
- On 25 June 2020, the ACCC released its final report into the review of the Facilities Access Code. The report found that the code is still fit-for-purpose and largely operating well, but recommended that the code be enhanced through implementing new measures to facilitate the deployment of mobile infrastructure and strengthening the pre-build consultation process to enable access seekers to identify new planned sites and express interest in co-building or new site co-location at an earlier stage. The ACCC varied the Facilities Access Code on 12 June 2020, prior to the release of its final report;73
- On 9 July 2020, the ACCC commenced a public inquiry into whether to extend the declaration of superfast broadband access service (SBAS) and local bitstream access services (LBAS) supplied on non-nbn networks.74 The current SBAS declaration expires in July 2021 and the LBAS declaration does not expire (but it is open to the ACCC to consider varying, revoking or remaking the declaration).
- On 25 August 2020, the ACCC issued a final superfast broadband network class exemption Determination,75 exempting smaller network operators from Part 8 of the separation requirements under the Telecommunications Act. The final class exemption Determination includes an annual reporting condition for carriers against the class exemption threshold and a mechanism to allow the threshold to increase to a maximum of 12,000 residential customers if specified in regulations.76
- On 29 July 2020, the ACCC released an industry consultation paper on enhancing the Broadband Speeds Claim Industry Guidance to cover products with higher maximum download and upload wholesale access speeds.77
v Mergers and acquisitions
In August 2018, TPG and Vodafone Australia announced they had entered into a scheme implementation deed for a proposed merger. The A$15 billion merger will combine as TPG Telecom Limited and is subject to approval by the ACCC. On 8 May 2019, the ACCC opposed the proposed merger, stating that Australia already has a very concentrated mobile services market, with the three network operators – Telstra, Optus and Vodafone – having an over 87 per cent share, and that the fixed broadband market is similarly concentrated with Telstra, TPG and Optus having an approximately 85 per cent share. Vodafone and TPG appealed the ACCC's opposition to their proposed merger in the Federal Court of Australia. In February 2020, the Federal Court of Australia held the proposed merger between Vodafone and TPG would not substantially lessen competition. TPG shareholders approved the merger with Vodafone on 24 June 2020 through a scheme of arrangement. The scheme of arrangement was implemented on 13 July 2020 following approval of the scheme of arrangement by the Supreme Court of NSW on 29 June 2020.
Conclusions and outlook
In December 2014, the government released its formal response to the recommendations of the Vertigan Panel, which was appointed to review the regulatory arrangements for the nbn network.78 At the time, the government envisaged a three-stage regulatory reform process for the telecommunications sector to enhance competition, particularly in respect of high-speed broadband networks.
The first stage involved certain transitional measures implemented in 2015 and 2016, such as requiring the functional separation of the wholesale and retail arms of carriers owning superfast fixed-line broadband networks.
The second stage envisaged the establishment of a new telecommunications regulatory framework (intended to have applied from 1 January 2017), which would, among other things, require structural separation between the wholesale and retail businesses of new superfast fixed-line broadband networks and create competitively neutral arrangements for funding nbn's non-commercial fixed wireless and satellite services. The TRP, described in Section III, addresses this stage.
The third stage of the government's response to the Vertigan Panel's report involved the lead up to the privatisation of nbn network once the network is rolled out and fully operational, and a Productivity Commission review into privatisation has been completed and examined by the government.
On 9 October 2020, the Minister for Communications, Cyber Safety and the Arts made a Statement of Expectations (SoE) in relation to the ACCC's telecommunications functions and powers. The SoE sets out the government's expectations of the ACCC regarding its key relationships, accountabilities and operational priorities relating to its telecommunications functions, including nbn's wholesale prices, business market competition and spectrum. In the statement, the government states its preference for the ACCC to work constructively with the Department for Communications, Cyber Safety and the Arts and the nbn on how to best develop a comprehensive regulatory solution relating to nbn's wholesale pricing that delivers certainty for all stakeholders, including a variation to nbn's Special Access Undertaking to incorporate the Multi-Technology Mix networks.
Several changes to the regulatory environment for TMT are expected to take place in the short to medium term, including new policy and regulatory interventions in relation to: digital platforms and media regulation; cybersecurity; data and privacy; and in the longer term to emerging technologies such as the IoT and artificial intelligence (AI). This follows several inquiries into the availability and use of data and digital platforms, including the Productivity Commission's Inquiry into Data Availability and Use, the ACCC's Inquiry into Digital Platforms, and the announcement by the Commonwealth Treasury of a Consumer Data Right.
i Digital platforms and media regulation
On 26 July 2019, the ACCC published its final report on its Digital Platforms Inquiry, which investigated the dominance of the leading digital platforms and their impact across Australia's economy, media and society. The final report concluded that Google and Facebook have substantial market power and made 23 recommendations, including recommending changes to Australia's merger laws, changes to search engine and internet browser defaults, that a specialist digital platforms branch be established within the ACCC to investigate, monitor and take enforcement against anticompetitive conduct and consumer harm caused by digital platforms, the strengthening of Australia's privacy laws and for the harmonisation of Australia's media regulatory framework.
On 12 December 2019, the government released its response and implementation roadmap79 to the ACCC's Digital Platform Inquiry, which committed to a staged process to reform media regulation towards a platform-neutral framework covering both online and offline delivery of media content to Australian consumers and a voluntary code of conduct to address competition issues and bargaining power concerns between digital platforms and traditional media businesses.
Following the government's release of its response and implementation roadmap, the ACCC commenced developing and negotiating a voluntary code of conduct with Google, Facebook and news media businesses to address their bargaining power imbalance. On 20 April 2020, the government instructed the ACCC to develop a mandatory code of conduct. This follows advice by the ACCC to the government about the limited progress made on the proposed voluntary code of conduct, and the ongoing adverse impact of covid-19 on news media businesses.
On 31 July 2020, the ACCC released the exposure draft News Media Bargaining Code for consultation.80 The proposed News Media Bargaining Code would allow news media businesses to bargain individually or collectively with Google and Facebook over payment for the inclusion of news on their services, and also sets minimum standards for providing advance notice of changes to algorithmic ranking and presentation of news; appropriately recognising original news content; providing information about how and when Google and Facebook make available user data collected through users' interactions with news content. It is proposed that the mandatory code will apply to digital platforms subject to a determination made by the Treasurer. Under the proposed mandatory code, news media businesses will be eligible to participate if they predominantly produce 'core news' published online; adhere to appropriate professional editorial standards; maintain editorial independence from the subjects of their news content; and operate primarily in Australia for the purpose of servicing Australian audiences.
The government identified Australian content obligations as another key issues it would focus on and released the ACMA and Screen Australia's Supporting Australian Stories on Our Screen – Options Paper for consultation on 15 April 2020. The Options Paper considers government intervention and support options for Australian content across commercial free-to-air television, subscription television and online streaming services that distribute curated or commissioned video content to Australian consumers, ranging from minimal to significant changes to the existing regulatory and funding arrangements and deregulation,
On 30 September 2020, the government announced its initial measures to modernise the media regulatory framework, including a new reporting requirement on large video streaming services, which would require these services to report their content acquisition to the ACMA from 1 January 2021.81
In December 2019, the Department of Communications and the Arts commenced consultation on a new Online Safety Act. The proposed reforms follow the 2018 review of Australia's online safety legislation, which recommended the replacing the existing framework (encompassing the Enhancing Online Safety Act 2015 and Schedules 5 and 7 of the Broadcasting Services Act) with a single Online Safety Act. The proposed reforms would extend online safety schemes to apply consistently across different types of online services providers (including social media services, instant messaging services, interactive online games, websites, apps, and internet service providers, among others).
On 6 August 2020, the Australian government released its Cyber Security Strategy 2020, indicating that it would develop new legislation imposing a positive security obligation on operators of critical infrastructure and systems of national significance; consider what laws should be created or amended to provide a minimum baseline for cybersecurity across the economy; create cyber offensive powers for the federal government to actively defend networks and critical infrastructure; and invest A$1.67 billion over the next 10 years to achieve the strategy's vision, including by building stronger relationships with industry through the Joint Cyber Security Centre Program.
On 16 September 2020, the Department of Home Affairs commenced a public consultation on its proposals to enhance the existing regulatory framework under the Security of Critical Infrastructure Act 2018 to protect critical infrastructure and systems of national significance. The proposal includes the requirement for critical infrastructure and systems of national significance entities to comply with a set of principles-based standards addressing physical, cyber-, personnel and supply-chain security and will apply to a broad range of sectors, including for example, communications, data and the cloud, banking and finance, food and groceries, etc. In addition to the positive security obligations and principles-based cybersecurity standards, systems of national significance entities would be subject to measures to improve situational awareness of cybersecurity threats (e.g., through formalised information-sharing arrangements with the government) and a requirement to participate in 'preparatory activities'.
iii Data and privacy
In its response and implementation roadmap82 to the ACCC's Digital Platform Inquiry, the government committed to a review of the Privacy Act 1987. The review will identify any areas where consumer privacy protection can be improved, how to ensure Australia's privacy regime operates effectively for the community that allows for innovation and growth in the digital economy, and further consultation on the ACCC's reform proposals on the right to deletion of personal information.
The Productivity Commissioner released its Final Report into Data Availability and Use in 2017, with the government accepting the recommendations. The government has progressed with implementing some of these recommendations, including by establishing the National Data Commissioner, legislating the consumer data right, and consulting on the proposed Data Sharing and Release legislation in July 2018.
The Treasury Laws Amendment (Consumer Data Right) Bill 2019 passed Parliament on 12 August 2019, creating the Consumer Data Right (CDR) framework to enable consumers to effectively use data relating to them for their own purposes, including the ability to direct data holders to provide their data to other accredited entities.83 While the CDR will initially be implemented in the banking sector, the government has indicated that the telecommunications and energy sectors will also be subject to the CDR. Consultation on the development of the CDR Rules for the energy sector commenced in July 2020. The CDR scheme commenced in stages in the banking sector from 1 July 2020. The ACCC, OAIC and the Data Standards Body (DSB) are responsible for developing and implementing the CDR and CDR Rules. The DSB is responsible for creating technical standards for data sharing, while the OAIC has the primary role for complaints handling.84
In July 2018, the Department of Communications and the Arts commenced consultation on the proposed Data Sharing and Release legislation, which would be overseen and enforced by the National Data Commissioner. The Data Sharing and Release legislation is a legislative framework for the sharing and release of data held by commonwealth entities and commonwealth corporations. The aim of the legislation is to simplify and overcome existing legal impediments to sharing public or government data between government agencies and to the private sector. Under the existing proposal, the legislation will override other legislative prohibitions on sharing data if certain conditions and safeguards are met, including, for example, protected information under the Telecommunications Act. The National Data Commissioner commenced consultation on the exposure draft Data Availability and Transparency Bill (previously known as the Data Sharing and Release legislation) and exposure draft Data Availability and Transparency Regulations in September 2020.85 The Office of the National Data Commissioner has published the Best Practice Guide to Sharing Data to promote greater open-data in 2019 while the data-sharing reforms are finalised.
iv Emerging technologies
The IoT is also expected to develop further in Australia, with likely implications for a range of areas of regulation, including spectrum use, equipment standards, cybersecurity, and privacy and data protection. Regulatory frameworks have not explicitly focused on IoT issues to date, but this is expected to be an area of future development in line with global trends and recent Australian policy developments, including the release of the voluntary Code of Practice for Securing the Internet of Things for Consumers on 3 September 202086 and the focus on the IoT in the government's Cyber Security Strategy 2020 published on 6 August 2020.
While regulatory and policy frameworks for AI are still nascent, this is expected to be an area of future development with the growing proliferation and adoption of AI. In April 2019, the Commonwealth Scientific and Industrial Research Organisation (CSIRO) Data 61 and the Department of Industry, Innovation and Science (DIIS) co-developed a discussion paper for an AI Ethics Framework to respond to issues associated with AI.87 The resulting voluntary AI Ethics Framework88 guides businesses and governments looking to design, develop and implement AI in Australia and includes a set of eight voluntary AI Ethics Principles: human, social and environmental wellbeing, human-centred values, fairness, privacy protection and security, reliability and safety, transparency and explainability, contestability, and accountability.89
In November 2019, the government and CSIRO's Data61 co-developed and published an AI Technology Roadmap for how AI can boost the productivity of Australian industry, create jobs and economic growth and improve the quality of life for current and future generations. The AI Technology Roadmap highlights the importance of ensuring effective data governance and access, building trust in AI through high standards and transparency, and to develop appropriate systems and standards that ensure safe, quality-assured, interoperable and ethical AI is developed and applied in Australia.90
1 Angus Henderson is a partner and Irene Halforty is a lawyer at Webb Henderson.
2 See Telecommunications (Carrier Licence Application Charge) Determination 2012.
3 See Division 3 of the Telecommunications Act 1997 (Cth).
4 See Telecommunications (Annual Carrier Licence Charge) Determination 2019 and Part 5 of the Telecommunications (Eligible Revenue) Determination 2015.
5 The ITS class licence was made under Section 132 of the Radiocommunications Act 1992 and is consistent with the ITS arrangements in other jurisdictions. This harmonisation with wider global developments will likely facilitate the introduction of the latest transport communications technology in Australia's ITS arrangements with wider global developments.
6 Broadcasting Legislation Amendment (Foreign Media Ownership, Community Radio and Other Measures) Act 2018, Section 74F.
7 See the Radiocommunications Act 1992 (Cth) and the Trading Rules for Spectrum Licences Determination 2012.
8 These processes were amended by the introduction of the Competition and Consumer Amendment (Competition Policy Review) Act 2017 and the Competition and Consumer Amendment (Misuse of Market Power) Act 2017 in November 2016.
9 Recommendation 1, the Australian Competition and Consumer Commission, Digital Platforms Inquiry Final Report, June 2019.
10 Recommendation 2, the Australian Competition and Consumer Commission, Digital Platforms Inquiry Final Report, June 2019.
11 See Part 2, Division 6 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.
12 Telecommunications (Consumer Protection and Service Standards) (Levy Formula Modification) Determination 2019.
13 Australian Government Response to the Productivity Commission Inquiry into the Telecommunications Universal Service Obligation, https://www.communications.gov.au/documents/australian-government-response-productivity-commissions-inquiry-telecommunications-universal-service.
14 Sections 143A(1) and (2) of the Telecommunications Act provide that the ACCC may, by legislative instrument, make a determination exempting a particular class of persons from the separation requirements set out in Sections 142C or 143. Once an exemption determination is made, persons within the class specified can elect to be bound by the class exemption rather than be subject to the separation requirements. Small network operators include network operators with with fewer than 2,000 residential customers, or up to 12,000 customers if new regulations are made.
15 Sections 143A(1)(d) and 143A(2)(d) Telecommunications Act.
16 See Telecommunications in new developments policy issued by the Minister for Communications, Cyber Safety and the Arts, effective 1 September 2020, https://www.communications.gov.au/policy/policy-listing/telecommunications-new-developments.
17 Australian Competition and Consumer Commission, Domestic Mobile Terminating Access Service Declaration Inquiry, Final report: June 2019.
18 Spam Act 2003 (Cth), Schedule 1.
19 Do Not Call Register Act 2006 (Cth), Schedules 1 and 1A.
20 See the Senate Environment and Communications Legislation Committee, Telecommunications Legislation Amendment (Unsolicited Communications) Bill 2019.
21 Telecommunications (Consumer Complaints Handling) Industry Standard 2018.
22 Telecommunications (Consumer Complaints) Record-Keeping Rules 2018.
23 Telecommunications (NBN Consumer Information) Industry Standard 2018.
24 Telecommunications (NBN Continuity of Service) Industry Standard 2018.
25 Telecommunications Consumer Protections (TCP) Code (C628:2019).
26 Cybercrime Legislation Amendment Act 2012 (Cth).
27 Telecommunications (Interception and access) Amendment (Data Retention) Act 2015 (Cth).
28 An eligible data breach arises when there is unauthorised access to, or disclosure or loss of, personal information, and a reasonable person would conclude that the unauthorised access to, or disclosure or loss of, personal information would likely result in serious harm to one or more individuals to whom the personal information relates. See: Privacy Act 1988 (Cth), Section 26WE.
29 Privacy Amendment (Notifiable Data Breaches) Act 2017.
30 Privacy Act 1988 (Cth), Section 26WF.
31 ibid., Sections 26WM to WQ.
32 Department of Communications and the Arts, Spectrum Pricing – review, February 2018, https://www.communications.gov.au/what-we-do/spectrum/spectrum-reform.
33 Department of Communications and the Arts, Commonwealth Held Spectrum – review, February 2018, https://www.communications.gov.au/what-we-do/spectrum/spectrum-reform.
34 See Australian Government, Department of Communications and the Arts, Australian Government Held Spectrum Report, April 2019.
35 ACMA, Five-Year Spectrum Outlook 2020–2024: The ACMA's spectrum management work programme – consultation draft, April 2020.
36 See: ACMA, Wireless broadband in the 26 GHz band – Options Paper, September 2018; ACMA, Future use of the 26 GHz Band – Planning decision and preliminary views, April 2019; ACMA, 28 GHz spectrum planning – Discussion Paper, September 2018; and ACMA, Future use of the 28 GHz band – Planning decisions and preliminary views, September 2019.
37 See ACMA, Area-wide Licensing – ACMA approach to introducing area-wide licences, February 2020.
38 Alex Choros, 5G in Australia: Everything you need to know, 4 September 2020, https://www.whistleout.com.au/MobilePhones/Guides/5g-in-australia-what-you-need-to-know.
39 Andrew Penn, 5G will shape the 2020s and update on Telstra's progress, 3 August, 2020, https://exchange.telstra.com.au/5g-will-shape-the-2020s-an-update-on-telstras-progress/.
40 Justin Hendry, TPG Telecom adds 550 sires to 5G network rollout plan, 21 August 2020, https://www.itnews.com.au/news/tpg-telecom-adds-550-sites-to-5g-network-rollout-plan-552141.
41 Hon Mitch Fifield, Minister for Communications and the Arts and the Hon Scott Morrison, Acting Minister for Home Affairs, Government Provides 5G Security Guidance To Australian Carriers, Departments of Home Affairs and Communications and the Arts, 23 August 2018, https://www.minister.communications.gov.au/minister/mitch-fifield/news/government-provides-5g-security-guidance-australian-carriers.
42 Radiocommunications (Spectrum Re-allocation — 26GHz Band) Declaration 2019.
43 See: Recommendation to re-allocate the 26 GHz band by issuing spectrum licences available at https://www.acma.gov.au/consultations/2019-08/draft-spectrum-reallocation-recommendation-26-ghz-band-consultation-142019.
44 See Radiocommunications (Spectrum Licence Limits—26 GHz Band) Direction 2020.
45 Radiocommunications (Spectrum Access Charges – 26 GHz Band) Direction 2020.
46 ACMA, Children's Television Standards 2009, made under Section 122(1) of the Broadcasting Services Act 1992.
47 Broadcasting Services Local Programming Determination 2018.
48 See: Broadcasting Services Amendment (Regional Commercial Radio and Other Measures) Bill 2020, Explanatory Memorandum and the Australian Government, Department of Infrastructure, Transport, Regional Development and Communications, Australian Content Multi-Channel Obligations for Regional Broadcasters Regulation Impact Statement, May 2020.
49 See Department of Communications and the Arts, Review of the Copyright Online Infringement Amendment, https://www.communications.gov.au/have-your-say/review-copyright-online-infringement-amendment.
50 Section 581(2A) of the Telecommunications Act 1997 (Cth).
51 Report of the Australian Taskforce to Combat Terrorist and Extreme Violent Material Online, 21 June 2019, https://www.pmc.gov.au/sites/default/files/publications/combat-terrorism-extreme-violent-
52 ACMA, Impacts of the 2019–20 bushfires on the telecommunications network - Report for the Minister for Communications, Cyber Safety and the Arts, April 2020, https://www.acma.gov.au/publications/2020-04/report/impacts-2019-20-bushfires-telecommunications-network.
53 Commonwealth Letter Patent, Royal Commission into Natural Disaster Arrangement, 20 February 2020, https://naturaldisaster.royalcommission.gov.au/about/terms-reference.
54 NSW Bushfire Inquiry, Final Report of the NSW Bushfire Inquiry, 31 July 2020, https://www.dpc.nsw.gov.au/assets/dpc-nsw-gov-au/publications/NSW-Bushfire-Inquiry-1630/Final-Report-of-the-NSW-Bushfire-Inquiry.pdf.
55 nbn, Australian Broadband Data Demand: new peak in data demand, 14 August 2020, https://www.nbnco.com.au/corporate-information/media-centre/media-statements/data-demand-new-peak-in-data-demand.
56 ACCC, NBN Co Limited and Ors – application for authorisation, Interim authorisation decision, 23 July 2020, https://www.accc.gov.au/public-registers/authorisations-and-notifications-registers/authorisations-register/nbn-co-limited-ors.
57 Joint Statement – Government and telecommunications companies agree measures to help keep people connected through COVID-19, 17 April 2020, https://www.communications.gov.au/sites/default/files/joint_statement_-_final.pdf.
58 Updated statement – Telecommunications hardship principles for COVID-19, 30 June 2020, https://www.communications.gov.au/sites/default/files/telecommunications_hardship_principles_for_covid-19_-_updated.pdf.
59 nbn, nbn Corporate Plan 2020–2023, 15 August 2019, https://www.nbnco.com.au/content/dam/nbnco2/2019/documents/media-centre/corporate-plan-report-2020-2023.pdf. and nbn, nbn Corporate Plan 2021, September 2020, https://www.nbnco.com.au/content/dam/nbnco2/2020/documents/media-centre/corporate-plan-2021/nbnco-corporate-plan-2021.pdf.
60 Australian Government, Regional Telecommunications Review – Getting it right out there, 4 December 2018, https://www.communications.gov.au/publications/2018-regional-telecommunications-review-getting-it-right-out-there.
61 nbn, Corporate Plan 2021, September 2020, https://www.nbnco.com.au/content/dam/nbnco2/2020/documents/media-centre/corporate-plan-2021/nbnco-corporate-plan-2021.pdf.
62 Letter from Malcolm Turnbull (Minister of Communications) and Mathias Cormann (Minister of Finance) to Dr Ziggy Switkowski (Executive Chairman of NBN Co), government expectations, 8 April 2014, www.nbnco.com.au/content/dam/nbnco2/documents/soe-shareholder-minister-letter.pdf.
63 Letter from Mitch Fifield (Minister of Communications) and Mathias Cormann (Minister of Finance) to NBN Co, statement of expectations, 24 August 2016, http://www.nbnco.com.au/content/dam/nbnco2/documents/soe-shareholder-minister-letter.pdf.
64 Data over cable service interface specifications.
65 nbn, nbn Corporate Plan 2021, September 2020, https://www.nbnco.com.au/content/dam/nbnco2/2020/documents/media-centre/corporate-plan-2021/nbnco-corporate-plan-2021.pdf.
66 ACCC, Public Inquiry on the Access Determination for the Domestic Mobile Terminating Access Service, Draft Report, May 2020, https://www.accc.gov.au/regulated-infrastructure/communications/mobile-services/mobile-terminating-access-service-access-determination-inquiry-2019/draft-report.
67 ACCC, NBN Wholesale Service Standard Inquiry: Draft Decision, October 2019, and Final Access Determination No.1 of 2019 (NBN Service Standards).
68 ACCC, NBN Wholesale Service Standards Inquiry: Position Paper, 2 April 2020.
69 See ACCC, ACCC inquiries into NBN access pricing and wholesale service standards: Consultation Paper, August 2020.
70 ACCC, Variation and Extension of Declaration Under section 152AL, 152ALA and 152AO of the Competition and Consumer Act 2010, 1 April 2019, https://www.accc.gov.au/public-registers/telecommunications-registers/s152aq-declared-services-register/domestic-transmission-capacity-service-1.
71 ACCC, ACCC inquiries into NBN access pricing and wholesale service standards: Consultation Paper, August 2020.
72 ACCC, Internet Activity Record-Keeping and Reporting Rules, issued under section 151BU of the Competition and Consumer Act 2010, December 2018; ACCC, Division 12 Report Record-Keeping and Reporting Rules issued under section 151BU of the Competition and Consumer Act 2010, July 2013; ACCC, Final Draft Division 12 Record-Keeping and Reporting Rules issued under section 151BU of the Competition and Consumer Act 2010, September 2020; and ACCC, Final Draft Internet Activity Recording-Keeping and Reporting Rules issued under section 151BU of the Competition and Consumer Act 2010, September 2020.
73 ACCC, Facilities Access Code – Final Report, June 2020.
74 ACCC, Superfast Broadband Access Service and Local Bitstream Access Service Declaration Inquiry – Discussion Paper, July 2020, https://www.accc.gov.au/regulated-infrastructure/communications/fixed-line-services/lbas-sbas-declarations-inquiry-2020.
75 Class exemption Determination made under section 143A(1) and (2) and section 142BD(2) of the Telecommunications Act 1997.
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