agencies

This page looks at regulation of Australian telecommunications as of August 2003.

It covers -

• the legal framework - federal law and the co-regulation regime
• policy direction
• ministerial responsibility and DCITA
• the ACA, ABA, ACMA and technical regulation
• the ACCC and competition regulation
• the TIO and industry bodies

In essence, regulation of telecommunications in Australia has three aspects: technical regulation (eg standards), rules about how the network is used (affecting for example copyright and censorship), and competition regulation (reflecting the dominant position of the five largest telecommunication groups). The 'co-regulatory' regime provides for substantial self-regulation by industry, both through formal codes and through administration of particular matters (including disputes) by industry bodies.

     legal framework

Section 51(v) of the Australian Constitution establishes telecommunications (including broadcasting) as a Commonwealth - ie national - power.

Subject to section 92 of the Constitution the Commonwealth is able to make laws with respect to telecommunications. That power embraces legislation such as

• the Telecommunications Act 1997 (here), the Broadcasting Services Act 1992 (here), which regulates television and radio broadcasting,
• the Broadcasting Services Amendment (Online Services) Act 1999 (BSA Act) - discussed here - which provides the basis for federal regulation of online content
• Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act 2004.

The legal framework for Australian telecommunications regulation involves a broad range of legislation, some concerned specifically with market activity within the telecommunications industry, some with content regulation (eg censorship, security and copyright) and some with general trade practices/competition questions. Responsibility for that legislation involves several federal ministers and their subordinate departments and agencies.

The legislation establishes a "co-regulatory regime", with substantial self-regulation by telecommunication service providers. That industry self-regulation is encouraged through the development of voluntary industry codes of practice and technical standards, fostered in particular by the Australian Communications Industry Forum (ACIF). The expectation is that self-regulation will encourage industry to respond to customer needs without first having to overcome excessive regulatory restrictions.

Cogent analysis of the regime is provided in Australian Telecommunications Regulation (Uni of NSW: UNSW Press 2004) edited by Alasdair Grant.

     policy direction

As noted on preceding pages of this profile, policy direction reflects a broad consensus characterised by -

• arguments that competition within the telecommunication sector produces public goods (eg lower prices for consumers, greater availability of infrastructure, scope for business users to spread risk)
• a substantial degree of industry self-regulation as not only politically and economical desirable but technically essential, since government agencies are not equipped to address some technical concerns
• a differentiation between technical regulation (eg network standards) and competition regulation (attention to anticompetitive behaviour, particularly by dominant players), with the latter forming part of a broader economy-wide competition policy
• reliance on private sector investment in and management of networks, in contrast to past shibboleths about public sector ownership of the "commanding heights" of the economy
• acceptance that particular operators may be owned and controlled by offshore interests, in contrast to restrictions on ownership and control of broadcasters
• differentiation of service standards, with notions of a basic voice service (reflected in the Universal Service Obligation) for all Australians and what are tacitly premium services for which access is determined by geographical location or preparedness to pay additional charges.

As preceding pages of this profile have suggested, there's been less agreement on specific questions. Arguably the 1997 legislation - and implementation by bodies such as the ACCC - was 'pro-competition' but inadequately 'pro-competitor', favouring the incumbent operators.

Eli Noam's 'Entrepreneurship & Government in Telecommunications' - in The Emergence of Entrepreneurship Policy (Cambridge: Cambridge Uni Press 2003) edited by David Hart - comments that "it is difficult to do competitive telecommunications" -

the costs of new networks were higher than expected, from truck rolls to customer acquisition to capacity planning. And the incumbents were not passively accepting their challengers but instead fighting them through market responses, foot-dragging and regulatory delay. They were helped by the risk-averse attitudes of important customers who wanted to be sure that the new network providers would be round next month

before noting incumbency advantages such as network externalities and economies of scale.

     ministerial responsibility and DCITA

The minister with most direct responsibility is the Minister for Communications, Information Technology & the Arts (currently former Attorney-General Daryl Williams QC), presiding over what's been hyped as the 'content & carriage' portfolio.

That portfolio encompasses -

• the two national broadcasters (ABC and SBS)
• the Department of Communications, Information Technology & the Arts (DCITA) and Australian Government Information Office (AGIMO, formerly the autonomous National Office for the Information Economy)
• sundry cultural institutions such as the National Museum of Australia
• the Australian Broadcasting Authority (ABA) and
• the Australian Communications Authority (ACA)

The latter agencies - collectively the equivalent of the US Federal Communications Commission - operate autonomously but are technically part of the department rather than formally established as statutory authorities.

In developing national telecommunications policy other players include the Attorney-General's Department (particularly for intellectual property concerns), the 'industry' department (sometimes perceived as keen to foster local industry development at the expense of deregulation) and specialists such as the Productivity Commission. The latter for example released a report on Telecommunications Competition Regulation in 2001.

     the ACA, ABA and technical regulation

In June 2005 the Australian Communications Authority and Australian Broadcasting Authority merged to form the Australian Communications & Media Authority (ACMA).

The Australian Communications Authority (ACA) was established in 1997 through the merger of the Australian Telecommunications Authority (Austel) with the Spectrum Management Agency. It operates in tandem with the Australian Competition & Consumer Commission (ACCC).

Its formal basis is the Australian Communications Authority Act 1997 (here). It exercises powers under the Telecommunications Act 1997, the Radiocommunications Act 1992, Spam Act 2003 (discussed here) and other related legislation.

The ACA is responsible for regulating Australian telecommunications and radiocommunications, including promoting industry self-regulation and managing the radiofrequency spectrum. It also has significant consumer protection responsibilities. It -

• licenses telecommunications carriers (as of May 2002 some 99 carriers had been licensed)
• ensures compliance with carrier licence conditions and service provider rules
• administers the Universal Service Obligation (USO) to "ensure reasonable and equitable access across Australia to standard telecommunication services" and Customer Service Guarantee (CSG)
• monitors service performance and quality
• manages the National Numbering Plan
• administers legislation relating to carrier powers and immunities of in the construction of telecommunications facilities
• administers legislative protection of consumers through safeguards and service guarantees
• manages and information programs on key issues affecting consumers
• represents Australia through membership of the International Telecommunication Union (ITU), the Asia-Pacific Telecommunity and similar international agencies.

The ACA seeks to manage access to and use of radiofrequency spectrum (eg for mobile phones) through licensing, investigation of interference complaints and action to ensure industry compliance with mandatory standards and conditions. Spectrum auctions are used in areas of high market demand and spectrum scarcity.

As a standards setting and monitoring body the ACA is responsible for standards "protecting the integrity of communications networks and the interoperability of the standard telephone service", including monitoring compliance with technical standards for communications equipment and cabling.

It is also concerned with number portability, electronic addressing (including SMS), interconnection standards, emergency call services and operator services such as directory assistance.

     the ACCC and competition regulation

The Australian Competition & Consumer Commission (ACCC) was established in 1995 through the merger of the Prices Surveillance Authority and the Trade Practices Commission. It administers the Trade Practices Act 1974 (here) and the Prices Surveillance Act 1983 (here), with additional responsibilities under other legislation.

As the national competition agency the ACCC is concerned with administering telecommunications-specific competition safeguards, in particular dealing with anti-competitive conduct by major carriers such as Telstra and by and carriage service providers through registration of access agreements, approving access undertakings, declaring services for access, approving access codes and arbitrating disputes for declared services.

It is able to issue tariff filing directions and record-keeping rules. Its powers under the Telecommunications legislation include control of Telstra's retail pricing. The ACCC has been criticised, with some merit, as

• too slow to respond to anti-competitive activity by Telstra (and indeed by some major competitors such as Optus)
• lacking resources to address consumer protection concerns in the ISP sector
• lacking an understanding of domestic and international policy issues and mechanisms relating to domain name services

     the TIO and industry bodies

The Telecommunications Industry Ombudsman (TIO) was established in 1993 as an industry funded scheme for resolution of disputes between telecommunications providers and residential and small business customers. It also covers complaints regarding Internet Service Providers (ISPs).

From 1997, under the Telecommunications Act 1997, all carriers and eligible carriage service providers are required to be members of the TIO. They must comply with its Constitution, Memorandum and Articles of Association of the Scheme.

The TIO offers a free service to consumers. Its income is derived from its members, who are charged fees for complaint resolution services provided by the TIO.

Eligible carriage service providers (CSPs) are those that supply

• a public mobile telecommunications service and/or
• a standard telephone service where some of the customers are residential or small business customers
• a carriage service which enables end users to access the net.

Under the co-regulatory regime the TIO has the authority to make binding decisions. Its recommendations are legally binding upon telecommunications providers. A Canadian counterpart, the Commissioner for Complaints for Telecommunications Service (CCTS), was established in 2007.

The Australian Communications Industry Forum (ACIF) brings together telecommunications companies, users and others. It is an telecommunications industry owned, resourced and operated company established in 1997 to implement and manage communication self-regulation within Australia. ACIF's role is to

develop and administer technical and operating arrangements that promote both the long term interests of end-users and the efficiency and international competitiveness of the Australian communications industry.

It is complemented by the Australian Mobile Telecommunications Association (AMTA), formed in 1994, which represents the "mobile phone industry" - essentially service operators.

The Telephone Information Services Standards Council (TISSC) is an "independent regulatory body" that sets standards for the message content and advertising of any Australian telecommunication service with the 190 prefix. Service providers of 190 numbers must abide by the TISSC Code of Practice.  

The Australian Telecommunications Users Group (ATUG) and Service Providers Industry Association (SPAN) represent users - in particular large corporate consumers of telecommunications - and telecommunication companies respectively. The Australian Internet Industry Association (IIA) represents many internet service providers, content hosts and other entities - such as Caslon Analytics - with an interest in the service/hosting sectors. and others.

Equivalent bodies in New Zealand include the Telecommunications Users Association of New Zealand (TUANZ).






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