Thursday, 16 August 2007
Communications Legislation Amendment (Information Sharing and Datacasting) Bill 2007
Debate resumed from 20 June, on motion by Mr Billson:
That this bill be now read a second time.
I rise to speak to the Communications Legislation Amendment (Information Sharing and Datacasting) Bill 2007. This bill seeks to amend the Australian Communications and Media Authority Act 2005 to provide for sharing of information between the Australian Communications and Media Authority and third parties; to amend the Radiocommunications Act 1992 to allow the ACMA to vary the spectrum identified in a datacasting transmitter licence; and to amend the Datacasting Charge (Imposition) Act 1998 so that a fee is not payable where a licensee provides datacasting services on a channel B datacasting transmitter licence.
The bill before us fails to address two key issues. The first issue relates to the datacasting provisions of the bill. In order to utilise additional spectrum, the government has determined that it will auction two digital datacasting licences. Channel A is to be used for narrowcasting and will allow for new free-to-air, in-home digital television services, while channel B will be used for a wider range of services such as mobile television.
The bill proposes to amend the Radiocommunications Act such that ACMA can vary the licence conditions that apply to a datacasting transmitting licence. In practical terms, this would allow ACMA to move a datacasting service from one channel to another. However, there is nothing in this bill to ensure that the government consults with licence holders prior to making such variations to the conditions of a licence. Such a practice could place licence holders at a significant disadvantage. Labor believes that the bill should include provisions to ensure consultation with stakeholders is undertaken and a thorough assessment of the impact of a change in frequency, or indeed any other variation that may adversely affect licence holders, is carried out.
The second issue that this bill fails to address relates to privacy and the protection of confidential information. ACMA frequently receives information through the performance of its functions and the exercise of its powers in relation to the regulation of broadcasting, the internet, radio communications and telecommunications that would be relevant to other regulatory or administrative bodies or personnel. The bill seeks to clarify ACMA’s ability to share the information it has gathered with relevant agencies and authorities. Labor can appreciate the need to disclose and exchange broadcasting, telecommunications and radio communications information to relevant third parties, particularly where this would improve the activities carried out by ACMA and the parties in receipt of the information. However, Labor believes that the privacy provisions in the bill do not provide adequate protection of confidential information.
During the Senate inquiry undertaken into this legislation, the submissions of the Office of the Privacy Commissioner and Privacy Victoria made perfectly clear their concerns about the inadequate privacy provisions. Their major concerns included the disclosure of personal information to agencies and bodies in jurisdictions that do not have privacy regulations. In practical terms, this means there is no way to prevent the unintended secondary use of an individual’s personal information. Labor believes that the public interest is best served when information sharing can facilitate cooperative work between authorities and preserve the right to privacy. Labor does not believe that the bill in its current form adequately strikes that balance. For that reason, at the conclusion of my contribution I will move a second reading amendment to address those two issues.
In conclusion, the way in which this legislation has been dealt with once again shows the Howard government’s profound disrespect for parliamentary process. As if we needed another reminder after having to suspend standing orders to introduce special legislation in this place. It appears that this government not only has stopped governing but also carries out a stunt on the last Thursday morning of every sitting fortnight. At every turn this government makes a mockery of parliamentary and democratic processes. The inquiry process exists so that stakeholders can be heard and legislation can be improved.
That some members of the committee did not receive submissions is inexcusable. Labor senators were expected to immediately submit a minority report having received the chair’s report only hours earlier. That is an inexcusable breach of due process and, indeed, demonstrates contempt for the important role that the Senate plays in our system of government. This government has not only stopped governing in the national interest; it has also stopped governing altogether. It is focused only on the next 10 weeks, not the next 10 years. It has forgotten that the next 10 years will present Australia with many challenges that will require well thought out policy solutions, and among them is our transition to the digital world. This bill will impact on practices in the coming years, so it is critically important that every piece of legislation is dealt with seriously. Political expediency cannot be prioritised above better outcomes for Australians. There is simply no need to push legislation such as this through the parliament with such haste, and Australians are certainly not better off as a result. I move:
That all words after “That” be omitted with a view to substituting the following words:“whilst not declining to give the bill a second reading, the House:
- is concerned that the bill does not:
- provide for consultation with licence holders prior to varying the frequencies on which datacasting transmitter licences operate; and
- address privacy concerns or provide adequate protection of confidential information; and
- therefore demands that:
- the Government make every attempt to carry out spectrum planning for new digital mobile services to ensure that consumers and licence holders are not disadvantaged; and
- the Government undertake consultation with all stakeholders prior to varying the frequencies on which datacasting transmitter licences operate”.
The Communications Legislation Amendment (Information Sharing and Datacasting) Bill 2007 is fairly straightforward in improving the efficiency and effectiveness of the Australian Communications and Media Authority Act. I do not propose to speak for more than three or four minutes. The legislation will authorise ACMA to disclose a certain class of information in limited circumstances, including information given in confidence to ACMA in connection with the performance of its functions or the exercise of its powers. The information that ACMA obtains as a result of its information-gathering powers is set out in the Broadcasting Services Act 1992, the Radiocommunications Act 1992, the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999. Information given to ACMA in confidence by a government authority or foreign country reflects the important cooperative effort undertaken by ACMA with the regulatory agencies of foreign countries in relation to issues such as offensive internet content and child safety online.
The ACMA chair may impose conditions on the disclosure of particular information by ACMA officials. The bill would also authorise ACMA to disclose information to other people, including: the Minister for Communications, Information Technology and the Arts—and there are some very good reasons given for that; another minister, if the information to be disclosed relates to a matter arising under an act administered by that minister; the secretary of the relevant minister’s department, or to another officer authorised by the secretary, for the purposes of advising the minister concerned; or a royal commission, where the protected information will assist the commission in its inquiries.
The bill also contains measures concerning the allocation of datacasting transmitter licences, including in relation to channel A and channel B datacasting transmitter licences. These measures make amendments which give ACMA greater flexibility. The bill is not expected to have any great financial impact.
ACMA frequently receives information through the performance of its functions and the exercise of its powers as the Australian government regulatory body responsible for broadcasting, telecommunications and radio communications matters. That, after all, is one of its main tasks. In dealing with industry in relation to a proposed merger, both the Australian Competition and Consumer Commission and ACMA are likely to receive evidence relating to the question of control of commercial broadcasting licences. As arrangements currently stand, ACMA would be unable to share such information with the ACCC even though it is relevant to the performance of the ACCC’s statutory functions under the Trade Practices Act 1974 in considering and approving proposed media mergers.
The issue of privacy has been raised, and I will deal with it briefly. While the majority of information that ACMA collects is commercial in nature, the continuing application of the Privacy Act 1988 together with other safeguards incorporated into the bill would ensure the appropriate measures are in place for the protection of personal information that might fall within the scope of the bill. It should also be noted that the bill has been drafted so as to restrict ACMA’s ability to share authorised disclosure information to certain prescribed circumstances that have strong links to the regulatory functions of other parts of government.
Finally, the report of the Senate Standing Committee on Environment, Communications, Information Technology and the Arts concluded:
The committee is satisfied with the bill as a whole. The committee believes the amendments in the bill in relation to information sharing will provide ACMA with an appropriate level of certainty and enhance the efficiency of the regulator’s enforcement activities. The committee also supports the provisions relating to the Government’s decisions concerning Channel A and Channel B datacasting transmitter licences—
which I referred to earlier.
The committee recognises the need, emphasised by the ABC and FreeTV, for careful planning to precede the introduction of mobile television services. The committee is confident that DCITA and ACMA are committed to processes that will ensure successful implementation in this area, and that this bill is just one element of preparation for decisions in relation to Channels A and B.
I thank the House.
In the second reading speech to the Communications Legislation Amendment (Information Sharing and Datacasting) Bill 2007, the minister stated the following:
At present, the circumstances in which ACMA—
can legitimately pass on information are uncertain. The amendments in this bill will provide ACMA with an appropriate level of certainty and in so doing, will enhance the efficiency of the regulator’s enforcement activities.
That is the crux of the bill as I understand it. The opposition have moved an amendment, part of which I want to quote, as it concerns me:
That all words after “That” be omitted with a view to substituting the following words:“whilst not declining to give the bill a second reading, the House:
- is concerned that the bill does not:
- address privacy concerns or provide adequate protection of confidential information ...
That is the concern that I have with the bill. Page 11 of the explanatory memorandum reads:
Item 3 of Part 1 of Schedule 1 to the Bill would insert a new Part 7A (‘Disclosure of Information’) into the ACMA Act. The new Part 7A would provide for the disclosure to particular parties, by ACMA officials, of authorised disclosure information.
Over the page, on page 12, it says:
It is important to note that, to the extent that information to be disclosed under proposed new Part 7A includes “personal information” as defined in section 6 of the Privacy Act 1988, the provisions of that Act will apply. In particular, it is not intended that the disclosure provisions included in proposed new Part 7A should override the Information Privacy Principles contained in section 14 of the Privacy Act 1988.
It is my hope that that illustration in the explanatory memorandum is in fact a reality, because I think the Privacy Act 1988 needs to be observed in relation to as many matters as possible.
The Senate Standing Committee on Environment, Communications, Information Technology and the Arts had an inquiry into this bill, a report of which was tabled in August 2007. Unfortunately, a minority report was released which details some procedural failings of the inquiry.
It is a matter of concern to some of us that the government in a lot of these reports seem to ram through their chair’s report and give little time for the minority members on the committee to have an adequate consideration of the chair’s report or to provide adequate statements. I do not propose to reiterate what the minority members have said in the report. It is all right for a government to have the majority in the House of Representatives, and probably in the Senate if it does the right thing, because legislation is not going to get overturned. But you have to start to worry when they ram stuff through and do not allow proper scrutiny. That is bad government, and eventually it comes back to bite them on the backside. It is a situation where, time and again, we in this place have seen the arrogance of the government in not allowing that scrutiny, and I think that is why the government are in trouble. I think people have stopped listening; they have had enough. The government’s actions are exposing their deficiencies. I suppose it is fair to say that both sides can be guilty of arrogance. Since 1949 you cannot point to a period where the Labor Party have had control of the Senate. We are always going to have a house of review. But this government no longer have a house of review; they have a rubber stamp for a Senate. The report on the bill shows that.
Submissions concentrated on two key issues in relation to the bill. One was the privacy provisions of the bill, which do authorise ACMA to disclose authorised disclosure information to ministers and their staff, various state and federal government agencies, Australian and overseas media, and the communications regulators. The minorities say that the bill does not adequately address privacy concerns or provide adequate protection of confidential information. Submitters to the Senate committee included the Office of the Privacy Commissioner, whose submission was dated July 2007. The key recommendations of the Office of the Privacy Commissioner, on page 4, were:
The Office submits that privacy protections should be balanced against investigation and enforcement activities. Further, we suggest that encouraging exempt agencies and bodies to implement standards for the handling of personal information will support better decision-making through improved data quality.
With these issues in mind, the Office makes the following recommendations:
1. The Office submits that the reference to the definition of personal information and compliance with the Privacy Act should appear within the Bill;
2. In terms of authorised disclosure information, the Office suggests that:
- consideration be given to expressly excluding personal information from being authorised disclosure information; or
- amending the Bill to require jurisdictions to be assessed as having substantially similar principles for fair handling of the information to the IPPs; or be made subject to an agreement under s59H which includes equivalent privacy obligations to the IPPs;
3. The regulation making powers under clause s59H should expressly provide for the privacy of individuals to be a matter of consideration for the Chair of ACMA and the process include consultation with the Privacy Commissioner; and
4. Further consideration be given to excluding personal information from the operation of clause 59F.
There was also a submission from the Victorian Privacy Commissioner. The final paragraph of Helen Versey’s letter to the committee says:
As noted above, the Explanatory Memorandum states that it is the legislature’s intention for the provisions of the Privacy Act 1988 to apply to personal information that is also authorised disclosure information. To prevent any ambiguity in interpretation of this bill, I recommend the insertion of the provision stating that it is the intention for the Privacy Act 1988 to apply.
That is what the government says it intends. I think it is important to put in the words that fulfil the intent of what the government wants to do. That way nobody is in any doubt. For people who read the bill and for people who are required to adjudicate in relation to the bill, it is there in black and white. My concern at times is that too often this government says something that is not matched by action or by the words in its bills. The bills in relation to the Northern Territory intervention talked about the legislation being a special measure, but in the next breath the bills basically excluded operation of the Racial Discrimination Act. You cannot have your cake and eat it too. There is a glaring inconsistency; the explanatory memorandum’s provisions are not matched with clauses within the legislation.
I raise that as an issue about which there is obviously concern from an opposition point of view. I would have thought that it would be a matter that would be easily remedied by the government just picking up and inserting a clause in the legislation to follow its expressed intent in the explanatory memorandum. With that qualification, I do commend the bill to the House.
Part 1 of schedule 2 to the Communications Legislation Amendment (Information Sharing and Datacasting) Bill 2007 amends the Australian Communications and Media Authority Act 2005, the ACMA Act, to authorise the disclosure of certain information by the Australian Communications and Media Authority, ACMA, to the Minister for Communications, Information Technology and the Arts, departments, government agencies and regulatory bodies. ACMA frequently receives information through the performance of its functions and the exercise of its powers as the Australian government regulatory body responsible for broadcasting, telecommunications and radio communications matters.
The Minister for Communications, Information Technology and the Arts and certain other Australian government regulatory bodies have a legitimate interest in receiving information that is obtained by ACMA. At present, the circumstances in which ACMA can legitimately pass on information are uncertain. The amendments in this bill will provide ACMA with an appropriate level of certainty and, in so doing, will enhance the efficiency of the regulator’s enforcement activities.
The amendments will be of particular benefit to ACMA in the context of its role in the government’s media ownership reforms that took effect from 4 April 2007. In dealing with industry in relation to a proposed merger, both the Australian Competition and Consumer Commission, or ACCC, and ACMA are likely to receive evidence relating to the question of control of commercial broadcasting licences. As arrangements currently stand, ACMA would be unable to share such information with the ACCC, even though it is relevant to the performance of the ACCC’s statutory functions under the Trade Practices Act 1974 in considering and approving proposed media mergers. Amendments to the Trade Practices Act 1974 to provide the ACCC with powers to disclose protected information were recently passed by the parliament. However, no similar powers exist for ACMA.
ACMA has also established close relationships with overseas regulatory agencies in developing cooperative arrangements for the regulation of the internet industry. The global nature of the internet means that liaison with regulatory and other relevant bodies overseas is a vital part of addressing offensive internet material and working towards securing child safety online. This bill will make clear ACMA’s ability to share with overseas regulatory agencies important information it has gathered pursuant to its online content responsibilities. It will also authorise ACMA to share relevant material with domestic law enforcement agencies, including the Australian Federal Police and the Director of Public Prosecutions. In addition, the removal of potential barriers to information sharing with regulatory and other agencies will go some way to helping reduce duplication and the reporting burden on industry. There have been some instances in which regulators have requested similar information from industry, creating an undesirable overlap and an otherwise avoidable burden for industry.
Clearly, the information ACMA receives from regulated entities has the potential to be sensitive, and it is therefore appropriate that the bill includes a number of provisions designed to ensure that appropriate protection is provided to sensitive and personal information. Whilst the majority of the information ACMA collects is commercial in nature, the continued application of the Privacy Act 1988, together with other safeguards incorporated into the bill, will ensure that appropriate measures are in place for the protection of personal information that might fall within the scope of the bill.
It should also be noted that the bill has been drafted so as to restrict ACMA’s ability to share authorised disclosure information to certain prescribed circumstances that have strong links to the regulatory functions of other parts of the government. Further, the ACMA chairman must be satisfied that the recipient of the information will meet conditions regarding the handling of that information and that the information will assist the recipient in performing its functions. The provisions in this bill will enable ACMA to incorporate to the greatest extent possible with the minister, government departments and other key regulatory agencies in performing its vital functions in relation to the regulation of broadcasting, the internet, radio communications and telecommunications. The public interest in good governance would not be served by restricting the ability of regulators to work cooperatively and share information on related issues.
Part 2 of schedule 2 to this bill amends the Radiocommunications Act 1992 to correct anomalies relating to spectrum replanning for licences on the unassigned channels and amends the Datacasting Charge (Imposition) Act 1998 in relation to license fees on channel B. The bill amends the Radiocommunications Act 1992 to give ACMA greater flexibility in carrying out its spectrum management functions in relation to datacasting transmitter licences. The provisions will permit ACMA to vary a condition of a datacasting transmitter licence that relates to radiofrequency spectrum after such a licence has been allocated. This will bring datacasting transmitter licences into line with broadcasting transmitter licences and other apparatus licences. The existing provisions do not allow ACMA to vary the spectrum specified in a datacasting transmitter licence after that licence has been issued.
These amendments will allow ACMA to address a range of technical issues as they arise. Such technical issues could include addressing potential interference with existing services and optimising spectrum for particular services such as mobile TV. The power to vary frequencies on which licences operate is already available to ACMA in relation to other transmitter licences. The amendments will create a consistent approach and enable ACMA to more effectively address technical considerations, including future spectrum replanning requirements after digital switch-over to reap the digital dividend.
These amendments will not adversely affect ACMA’s ability to address interference issues. If interference with television transmission does occur, the datacasting transmitter licensee responsible for the interfering service must take immediate action to prevent the interference. Neither will these amendments reduce the need for consultation in relation to changes in frequencies for datacasting transmitter licences. The amendments will simply empower ACMA to make these changes after the licence is issued, which is consistent with ACMA’s existing powers in relation to transmitter licences for broadcasting services.
The government’s intention is that a channel B datacasting transmitter licensee will not be subject to an annual revenue based fee. The bill amends the Datacasting Charge (Imposition) Act 1998 to correct anomalies concerning the application of datacasting charges in relation to channel B to ensure that the government’s intention is implemented in a case where channel B is controlled by a commercial television broadcasting service. I commend the bill to the House.
The original question was that this bill be now read a second time. To this the honourable member for Grayndler has moved as an amendment that all words after ‘That’ be omitted with a view to substituting other words. The question now is that the words proposed to be omitted stand part of the question.
Question agreed to.
Original question agreed to.
Bill read a second time.