A review of telecommunications regulation

71.61 The ALRC acknowledges the need for telecommunications regulation to respond to a convergent communications environment. This has been a theme in a number of recent reports and inquiries.[68] In Australia, there are currently a number of regulatory frameworks that apply to information according to the communications platform over which it is delivered.[69]

71.62 In DP 72, the ALRC expressed the view that issues related to convergence extend beyond the Terms of Reference for this Inquiry. The ALRC proposed, therefore, that the Australian Government should initiate a review to consider the extent to which the Telecommunications Act and the Telecommunications (Interception and Access) Act[70] continue to be effective in light of technological developments (including technological convergence), changes in the structure of communication industries, and changing community perceptions and expectations about communication technologies.[71]

Submissions and consultations

71.63 A number of stakeholders supported such a review.[72]Communications Alliance supported a review, but noted that it should form part of a much larger review of Australia’s ‘broadband future’. The Alliance submitted that the Government should consider developing a comprehensive framework of legislative and administrative measures that are ‘purpose built for the broadband world, and not bolted on to the legacy tools of the pre-digital era’.[73]

71.64 Telstra supported a review, but noted that it should commence after the completion of the ALRC’s Inquiry and cover other telecommunications legislation, such as the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth).[74] National Legal Aid submitted that the review should cover the use of telecommunications data by state and territory law enforcement agencies, having regard to the lack of uniform coverage for state law enforcement agencies under privacy laws.[75] The Australian Direct Marketing Association and Communications Alliance submitted that it is fundamentally important that all telecommunications stakeholders are consulted as part of a review. [76]

71.65 Some stakeholders opposed the proposal for a review. The Department of Broadband, Communications and the Digital Economy (DBCDE) submitted that such a review would need to consider a much wider range of issues than privacy, and that the implications of the ALRC’s proposal go well beyond the scope of the ALRC’s Inquiry. In the DBCDE’s view, it would be outside the ALRC’s Terms of Reference to recommend such a review.[77] Other stakeholders noted that it is important that such legislation is kept under constant review, and questioned the need for a review given recent reviews of the legislation.[78]

71.66 The Attorney-General’s Department noted that while convergence raises a number of issues for the Telecommunications (Interception and Access) Act and law enforcement agencies, the technology-neutral language of the legislation has allowed the Act to remain effective in its application, and agencies to work together to address convergence issues as they arise.[79]

ALRC’s view

71.67 Issues related to convergence extend beyond the Terms of Reference for this Inquiry. In the ALRC’s view, the Australian Government should initiate a review of telecommunications regulation in the light of technological developments (including technological convergence), changes in the structure of communication industries and shifting community perceptions and expectations about communication technologies.[80] This review should consider other legislation that regulates the telecommunications industry and how it interacts with the Telecommunications Act.[81]

71.68 A recommendation for such a review is clearly within the ALRC’s Terms of Reference. As noted above, the then Attorney-General, the Hon Philip Ruddock MP, specifically asked the ALRC to consider the interaction between the Privacy Act and Part 13 of the Telecommunications Act during the course of this Inquiry. The need for such a review has become evident as a result of the ALRC’s review of Part 13. Further, a recommendation for such a review falls within the ALRC’s Terms of Reference for this Inquiry which require the ALRC to consider ‘any other related matter’.

71.69 The ALRC notes that some aspects of this legislation have been reviewed relatively recently. Recent reviews have focused on specific areas of telecommunications regulation. In the ALRC’s view, regulation of telecommunications more broadly should be reviewed. The ALRC notes that the amalgamation of key broadcasting and telecommunications regulators in the United Kingdom provided the opportunity to establish a new regulatory framework under the Communications Act 2003 (UK).

71.70 The ALRC recommends, therefore, that the review should consider the extent to which the activities regulated under the Telecommunications Act and the Telecommunications (Interception and Access) Act should be regulated under general communications legislation or other legislation; and the roles and functions of the various bodies currently involved in the regulation of the telecommunications industry, including ACMA, the Attorney-General’s Department, the OPC, the Telecommunications Industry Ombudsman (TIO), and Communications Alliance.

71.71 The establishment of a public interest monitor (PIM) should be considered as part of the recommended review. In Chapter 73, the ALRC considers whether the Telecommunications (Interception and Access) Act should provide for the role of a PIM to oversee the interception and access of communications. The ALRC does not recommend the establishment of a PIM because many of the functions of a PIM are adequately provided by other bodies. The ALRC acknowledges, however, that most of these functions occur after a warrant has been issued or the interception or access of communications.

Recommendation 71-2 The Australian Government should initiate a review to consider whether the Telecommunications Act 1997 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth) continue to be effective in light of technological developments (including technological convergence), changes in the structure of communication industries and changing community perceptions and expectations about communication technologies. In particular, the review should consider:

(a) whether the Acts continue to regulate effectively communication technologies and the individuals and organisations that supply communication technologies and communication services;

(b) how these two Acts interact with each other and with other legislation;

(c) the extent to which the activities regulated under the Acts should be regulated under general communications legislation or other legislation;

(d) the roles and functions of the various bodies currently involved in the regulation of the telecommunications industry, including the Australian Communications and Media Authority, the Attorney-General’s Department, the Office of the Privacy Commissioner, the Telecommunications Industry Ombudsman, and Communications Alliance; and

(e) whether the Telecommunications (Interception and Access) Act should be amended to provide for the role of a public interest monitor.

[68] See, eg, Australian Government Department of Communications‚ Information Technology and the Arts, Review of the Regulation of Content Delivered Over Convergent Devices (2006); Australian Communications Authority, Vision 20/20: Future Scenarios for the Communications Industry—Implications for Regulation (2005).

[69] See, eg, Telecommunications Act 1997 (Cth); Broadcasting Services Act 1992 (Cth).

[70] The Telecommunications (Interception and Access) Act 1979 (Cth) is discussed in Ch 73.

[71] In particular, the ALRC proposed that the review should consider: whether the Acts continue to regulate effectively communication technologies and the individuals and organisations that supply communication technologies and communication services; how the Acts interact with each other and with other legislation; the extent to which the activities regulated under the Acts should be regulated under general communications legislation or other legislation; and the roles and functions of the various bodies currently involved in the regulation of the telecommunications industry, including ACMA, the Australian Government Attorney-General’s Department, the Office of the Privacy Commissioner, the Telecommunications Industry Ombudsman, and Communications Alliance: Australian Law Reform Commission, Review of Australian Privacy Law, DP 72 (2007), Proposal 63–1.

[72]Australian Privacy Foundation, Submission PR 553, 2 January 2008; Office of the Victorian Privacy Commissioner, Submission PR 493, 19 December 2007; I Graham, Submission PR 427, 9 December 2007.

[73]Communications Alliance Ltd, Submission PR 439, 10 December 2007.

[74]Telstra Corporation Limited, Submission PR 459, 11 December 2007.

[75]National Legal Aid, Submission PR 521, 21 December 2007.

[76]Australian Direct Marketing Association, Submission PR 543, 21 December 2007; Communications Alliance Ltd, Submission PR 439, 10 December 2007.

[77]Australian Government Department of Broadband‚ Communications and the Digital Economy, Submission PR 512, 21 December 2007. See also Optus, Submission PR 532, 21 December 2007.

[78]Australian Government Attorney-General’s Department, Submission PR 546, 24 December 2007; Australian Federal Police, Submission PR 545, 24 December 2007.

[79]Australian Government Attorney-General’s Department, Submission PR 546, 24 December 2007.

[80]Senate Environment Communications Information Technology and the Arts References Committee, A Lost Opportunity? Inquiry into the Provisions of the Australian Communications and Media Authority Bill 2004 and Related Bills and Matters (2005), rec 1.

[81] The Telecommunications (Interception and Access) Act 1979 (Cth) is discussed in Ch 73.