Australian Communications and Media Authority Act 2005

The Act primarily affects ACMA itself and the persons who interact with it: ACMA members and associate members appointed under sections 19 and 24, ACMA staff (section 54), advisory committees (section 58), the Consumer Consultative Forum (section 59), and Ministers, ministerial advisers, and public servants who receive disclosed information under Part 7A.

Indirectly, the Act affects every regulated entity that ACMA supervises. That includes carriers and carriage service providers under the Telecommunications Act 1997, spectrum licensees and apparatus licensees under the Radiocommunications Act 1992, commercial radio and television broadcasters under the Broadcasting Services Act 1992, content service providers, datacasting licensees, holders of digital television licences, and people sending unsolicited commercial electronic messages under the Spam Act 2003 or making unsolicited telemarketing calls under the Do Not Call Register Act 2006.

The Act also affects the Australian Competition and Consumer Commission (ACCC). Under section 17, ACMA must consult the ACCC in relation to the management of electronic addressing.

ACMA's obligations sit at two levels. The Act imposes constitutive obligations on ACMA itself: meet, decide, delegate within the prescribed limits, plan, and report. Substantive obligations on regulated entities flow from the companion Acts.

Section 16 requires ACMA to act consistently with the CER Trade in Services Protocol when performing its functions and exercising its powers. Section 17 requires ACMA to consult the ACCC in relation to the management of electronic addressing.

Sections 36 to 43 set out the meeting procedure for ACMA. Section 44 allows decisions without meetings. Sections 46 to 49 allow ACMA to constitute Divisions and require Divisions to record their decisions.

Sections 50 to 53 govern delegation. Section 50 allows ACMA to delegate functions and powers to a Division. Section 51 allows ACMA to delegate to members, associate members, staff, and other authorised persons. Section 52 allows a Division to delegate. Section 53 limits the powers that can be delegated to persons other than Divisions.

Sections 56 and 57 require corporate plans and annual reports prepared under sections 35 and 46 of the Public Governance, Performance and Accountability Act 2013, and require the annual report to include each Ministerial direction given under section 14.

Disclosure of information is governed by Part 7A. ACMA officials may disclose authorised disclosure information to Ministers (section 59A), to public servants for advising their Ministers (section 59B), to Royal Commissions (section 59C), and to certain authorities including law enforcement and integrity agencies (section 59D). Specific disclosure regimes apply to information about the affairs of a carrier or carriage service provider (section 59DA) and information that relates to the Scams Prevention Framework (section 59DB). Disclosure with consent is permitted (section 59E), as is disclosure of publicly available information (section 59F) and of summaries and statistics (section 59G).

ACMA's central power is the omnibus general power in section 12: to do all things necessary or convenient to be done for or in connection with the performance of its functions.

The Chair has independence from ACMA on certain matters under section 63, including powers conferred specifically on the Chair under other Acts.

The ACMA can make charges determinations under section 60, fixing charges for ACMA services, and the charges are payable to the Commonwealth (section 61). ACMA's expenses include certain related Commonwealth expenses (section 62).

Section 64 allows the Minister to make determinations defining expressions used in the Act. Section 65 allows determinations to define expressions by reference to other instruments.

The Minister has the power to give written directions under section 14. The Minister also makes appointments under section 20.

ACMA's enforcement and regulatory decisions in particular regulated areas are conferred by the relevant industry Act. For example, the Authority's power to make findings of breach of broadcasting licence conditions and to take consequential enforcement action sits in the Broadcasting Services Act 1992, as discussed in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7.

The Act creates one substantive offence: section 66 makes it an offence for a person to use a protected name or protected symbol. The protected name and protected symbol are defined in connection with ACMA's identity.

Most regulatory penalties enforced by ACMA flow from other Acts. Civil penalty regimes operate under the Telecommunications Act 1997, the Spam Act 2003, the Do Not Call Register Act 2006, and the Online Safety Act 2021. Broadcasting licence enforcement runs under the Broadcasting Services Act 1992.

Section 62A allows proceedings to be brought in the name of the ACMA. Section 62B governs decisions relating to the Commonwealth.

The constitutional limits on ACMA's findings of breach of licence conditions were tested in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7. The High Court held that ACMA could find a licensee had breached the cl 8(1)(g) condition of Schedule 2 to the Broadcasting Services Act 1992 (the condition that a licensee will not use the broadcasting service in the commission of an offence) and take enforcement action without prior conviction by a criminal court, and that this did not impermissibly confer judicial power on the Authority.

ACMA performs its statutory functions on its own initiative, in response to complaints, or under Ministerial direction. The companion industry Acts set the procedural rules for inquiries, investigations, and hearings; this Act provides the framework for when an inquiry, investigation, or hearing ends (section 4).

ACMA meets and decides under Part 4. Decisions can be made at a meeting (sections 36 to 43), without meetings (section 44), or by Divisions (sections 46 to 49). A delegate can decide under sections 50 to 53.

ACMA must prepare a corporate plan annually under section 35 of the Public Governance, Performance and Accountability Act 2013, with the additional matters required by section 56 of this Act. ACMA must give an annual report under section 46 of the Public Governance, Performance and Accountability Act 2013, including the matters required by section 57 of this Act.

Disclosure of information by ACMA officials is at the discretion of the relevant ACMA official acting within Part 7A. The Chair may delegate the Chair's powers under Part 7A under section 59L.

The Act sits at the centre of the communications regulatory framework but most substantive interactions are with the companion industry Acts. Section 8 ties ACMA to the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999. Section 9 ties ACMA to the Radiocommunications Act 1992. Section 10 ties ACMA to the Broadcasting Services Act 1992. Section 11 ties ACMA to additional functions including electronic addressing management.

Section 16 ties ACMA to the CER Trade in Services Protocol with New Zealand.

Section 27 deals with associate members being treated as members for certain purposes in other Acts, which keeps the integration with the companion Acts clean.

Sections 56 and 57 tie ACMA to the Public Governance, Performance and Accountability Act 2013 framework. Section 12's note refers to section 23 of that Act for contracting authority.

Part 7A interacts with the secrecy and disclosure regimes of other Acts. Section 59K preserves the relationship with Part 13 of the Telecommunications Act 1997 (the telecommunications secrecy regime). Section 59KA preserves the relationship with Part 7B of the Interactive Gambling Act 2001.

The Privacy Act 1988 is interacted with through the regulation-making power that authorises certain disclosures (section 59H).

Substantive enforcement is conferred elsewhere. A user looking for civil penalty provisions, broadcasting standards, telecommunications industry codes, spam rules, do-not-call rules, or online safety enforcement will not find them in this Act. They sit in the relevant companion Act.

The Ministerial direction power in section 14 is constrained on broadcasting, content, and datacasting matters: a direction in those areas can only be of a general nature, preserving regulatory independence on individual licensing and enforcement decisions.

The disclosure framework in Part 7A is dense. Each disclosure channel has its own boundaries and the relationships with the Telecommunications Act Part 13 and the Interactive Gambling Act Part 7B carve-outs are critical. ACMA officials should not assume that a Part 7A disclosure power overrides those external secrecy regimes; sections 59K and 59KA expressly preserve those regimes.

Delegation has limits in section 53 designed to prevent the abdication of significant decision-making to non-Division persons. Some decisions cannot be delegated outside ACMA's own Divisions.

ACMA is not separately constituted in law. The note to section 6 records that ACMA does not have a legal identity separate from the Commonwealth, which has consequences for the proper defendant in proceedings (section 62A allows proceedings to be brought in the name of the ACMA).

Section 66 (protected name or symbol) is a small offence but easy to overlook for businesses considering names that incorporate "ACMA" or related symbols.

A commercial radio broadcaster engages in conduct on air that may amount to an offence under another Commonwealth law. ACMA investigates under the Broadcasting Services Act 1992 and finds the licensee has breached the cl 8(1)(g) licence condition (the condition that the licensee will not use the broadcasting service in the commission of an offence). ACMA takes enforcement action, including potentially imposing or varying licence conditions. The licensee challenges ACMA's power to find a breach in the absence of a criminal court conviction. The High Court in Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7 confirmed that ACMA's exercise of that power, conferred by the Broadcasting Services Act 1992 read with sections 10 and 12 of this Act, does not impermissibly confer judicial power on ACMA.

A telecommunications carrier requests information from ACMA. ACMA officials assess whether the disclosure is permitted under Part 7A. Disclosure to law enforcement uses section 59D; disclosure with the carrier's consent uses section 59E; disclosure of publicly available material uses section 59F. The official also checks Part 13 of the Telecommunications Act 1997 because section 59K preserves that secrecy regime.

The Minister gives ACMA a written direction under section 14 about a general policy priority on consumer protection in telecommunications. The direction is permissible because it is of a general nature. The direction must be included in ACMA's next annual report under section 57(a).

A new associate member is appointed under section 24 to participate in a particular inquiry under the Broadcasting Services Act 1992. The associate member is treated as a member for certain purposes in other Acts under section 27, ensuring clean operation of the companion Acts during the inquiry.