Division 5Delegation

An Act to establish the Australian Communications Authority (ACA), and for related purposes ## Part 1—Introduction ##### 1 Short title \[see Note 1\] This Act may be cited as the Australian Communications Authority Act 1997. ##### 2 Commencement This Act commences on 1 July 1997. ##### 3 Simplified outline The following is a simplified outline of this Act: • The Australian Communications Authority (ACA) is established. • The main functions of the ACA relate to telecommunications and spectrum management. • The ACA is a body corporate and consists of the following members: (a) a Chair; (b) a Deputy Chair; (c) at least one, and not more than 3, other members. • Associate members may be appointed for special purposes. • The ACA may establish advisory committees. • The ACA must establish a committee to be known as the Consumer Consultative Forum. ##### 4 Definitions In this Act, unless the contrary intention appears: > ACA means the Australian Communications Authority. > ACA’s additional functions has the meaning given by section 8. > ACA’s spectrum management functions has the meaning given by section 7. > ACA’s telecommunications functions has the meaning given by section 6. > appointing authority means: (a) in relation to a member—the Governor‑General; or (b) in relation to an associate member—the Minister. > associate member means an associate member of the ACA. > carriage service has the same meaning as in the Telecommunications Act 1997. > carriage service provider has the same meaning as in the Telecommunications Act 1997. > carrier has the same meaning as in the Telecommunications Act 1997. > carry has the same meaning as in the Telecommunications Act 1997. > Chair means the Chair of the ACA. > communications has the same meaning as in the Telecommunications Act 1997. > content service has the same meaning as in the Telecommunications Act 1997. > customer cabling has the same meaning as in the Telecommunications Act 1997. > customer equipment has the same meaning as in the Telecommunications Act 1997. > Deputy Chair means the Deputy Chair of the ACA. > listed carriage service has the same meaning as in the Telecommunications Act 1997. > member means a member of the ACA, but does not include an associate member. > radiocommunications means: (a) radiocommunications (within the meaning of the Radiocommunications Act 1992); or (b) a transmission or radio emission covered by subsection 20(1) or section 21 or 22 of that Act. > radiocommunications community includes: (a) users of radiocommunications; and (b) persons who sell, hire, manufacture or import: (i) radiocommunications transmitters (within the meaning of the Radiocommunications Act 1992); or (ii) radiocommunications receivers (within the meaning of that Act). > telecommunications means the carriage of communications by means of guided and/or unguided electromagnetic energy. > telecommunications industry has the same meaning as in the Telecommunications Act 1997. > telecommunications network has the same meaning as in the Telecommunications Act 1997. ##### 4A Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. > Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. ## Part 2—Functions and powers of the ACA ##### 5 Functions of the ACA The ACA has the following functions: (a) the telecommunications functions mentioned in section 6; (b) the spectrum management functions mentioned in section 7; (c) the additional functions mentioned in section 8. ##### 6 ACA’s telecommunications functions The ACA’s telecommunications functions are as follows: (a) to regulate telecommunications in accordance with the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999; (b) to advise and assist the telecommunications industry; (c) to report to and advise the Minister in relation to the telecommunications industry; (d) to report to and advise the Minister in relation to matters affecting consumers, or proposed consumers, of carriage services; (e) to manage Australia’’s input into the setting of international standards for telecommunications (except so far as Standards Australia International Limited is responsible for managing that input); (f) to monitor, and report to the Minister on, all significant matters relating to the licensing of carriers under the Telecommunications Act 1997; (g) to make available to the public information about matters relating to the telecommunications industry; (h) to conduct public educational programs about matters relating to the telecommunications industry; (i) to give advice to the public about matters relating to the telecommunications industry; (j) such other functions as are conferred on the ACA by or under: (i) the Telecommunications Act 1997; or (ia) the Telecommunications (Consumer Protection and Service Standards) Act 1999; or (ib) the Spam Act 2003; or (ii) the Telecommunications (Carrier Licence Charges) Act 1997; or (iii) the Telecommunications (Numbering Charges) Act 1997; or (iv) Part XIC of the Trade Practices Act 1974; (k) to do anything incidental to or conducive to the performance of any of the above functions. ##### 7 ACA’s spectrum management functions The ACA’s spectrum management functions are as follows: (a) to manage the radiofrequency spectrum in accordance with the Radiocommunications Act 1992; (b) to advise and assist the radiocommunications community; (c) to report to and advise the Minister in relation to the radiocommunications community; (d) to manage Australia’s input into the setting of international standards for radiocommunications (except so far as Standards Australia International Limited is responsible for managing that input); (e) to make available to the public information about matters relating to the radiocommunications community; (f) to conduct public educational programs about matters relating to the radiocommunications community; (g) to give advice to the public about matters relating to the radiocommunications community; (h) such other functions as are conferred on the ACA by or under: (i) the Radiocommunications Act 1992; or (ii) the Radiocommunications Taxes Collection Act 1983; or (iii) the Radiocommunications (Receiver Licence Tax) Act 1983; or (iv) the Radiocommunications (Transmitter Licence Tax) Act 1983; or (v) the Radiocommunications (Spectrum Licence Tax) Act 1997; (i) to do anything incidental to or conducive to the performance of any of the above functions. ##### 8 ACA’s additional functions (1) The ACA’s additional functions are as follows: (aa) if a written instruction issued by the Minister to do so is in force—to prepare to provide for the management of electronic addressing: (i) of a kind specified in the instruction; and (ii) relating to a kind of listed carriage service specified in the instruction; (ab) if an instruction under paragraph (aa) and a written instruction issued by the Minister to do so are in force—to provide for the management of electronic addressing: (i) of a kind specified in the instruction under this paragraph and covered by the instruction under paragraph (aa); and (ii) relating to a kind of listed carriage service specified in the instruction under this paragraph and covered by the instruction under paragraph (aa); (a) if requested to do so—to provide services or facilities, on a commercial basis, where: (i) the services or facilities relate to radiocommunications or telecommunications; or (ii) the provision of the services or facilities utilises the ACA’s spare capacity; or (iii) the provision of the services or facilities maintains or improves the specialised technical skills of the ACA’s staff in relation to radiocommunications or telecommunications; (b) such functions as are conferred on the ACA by or under: (i) this Act (other than section 6 or 7); or (ii) any other law (other than a law specified in subsection (3)); (c) to do anything incidental to or conducive to the performance of any of the above functions. (2) Paragraph (1)(a) does not authorise the ACA to perform a function if the performance of the function would impede the ACA’s capacity to perform its other functions. (3) For the purposes of subparagraph (1)(b)(ii), the following laws are specified: (a) the Telecommunications Act 1997; (aa) the Telecommunications (Consumer Protection and Service Standards) Act 1999; (ab) the Spam Act 2003; (b) the Telecommunications (Carrier Licence Charges) Act 1997; (c) the Telecommunications (Numbering Charges) Act 1997; (d) Part XIC of the Trade Practices Act 1974; (e) the Radiocommunications Act 1992; (f) the Radiocommunications Taxes Collection Act 1983; (g) the Radiocommunications (Receiver Licence Tax) Act 1983; (h) the Radiocommunications (Transmitter Licence Tax) Act 1983; (i) the Radiocommunications (Spectrum Licence Tax) Act 1997. (4) An instruction under paragraph (1)(aa) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. (5) An instruction under paragraph (1)(ab) must be published in the Gazette. (6) The Minister may, by written notice, revoke an instruction under paragraph (1)(aa) or (ab). (7) A notice revoking an instruction under paragraph (1)(aa) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. (8) A notice revoking an instruction under paragraph (1)(ab) must be published in the Gazette. (9) Subsections (6), (7) and (8) do not affect the operation of subsection 33(3) of the Acts Interpretation Act 1901 in relation to: (a) provisions of this Act other than paragraph (1)(aa) or (ab); and (b) the power to amend or vary an instruction under paragraph (1)(aa) or (ab). ##### 9 Powers (1) The ACA has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. (2) The powers of the ACA under this section include, but are not limited to, the power to enter into contracts and agreements. ##### 12 Minister may give directions to the ACA (1) The Minister may give written directions to the ACA in relation to the performance of its functions and the exercise of its powers. (2) A direction under subsection (1) must be published in the Gazette. (3) The ACA must perform its functions in a manner consistent with any directions given by the Minister under subsection (1). (4) This section does not affect the application of section 28 of the Commonwealth Authorities and Companies Act 1997 in relation to the ACA. ##### 12A ACA to consult with the Australian Competition and Consumer Commission in relation to management of electronic addressing The ACA must consult the Australian Competition and Consumer Commission before carrying out an act: (a) for the purpose of performing its functions under paragraph 8(1)(aa) or (ab); and (b) that would, in the ACA’s opinion, have a significant effect on competition or consumer protection. ##### 13 ACA not otherwise subject to government direction Except as otherwise provided by or under this or any other Act, the ACA is not subject to direction by or on behalf of the Commonwealth Government. ## Part 3—Establishment and membership of the ACA ##### 14 ACA (1) This section applies to the body corporate that was, immediately before the commencement of this section, in existence because of section 34 of the Telecommunications Act 1991 under the name Australian Telecommunications Authority. (2) That body corporate continues in existence by force of this section as a body corporate, under and subject to the provisions of this Act, under the name Australian Communications Authority. ##### 15 ACA is a body corporate (1) The ACA: (a) is a body corporate, with perpetual succession; and (b) is to have a seal; and (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued in its corporate name. > Note: The Commonwealth Authorities and Companies Act 1997 applies to the ACA. That Act deals with matters relating to Commonwealth authorities, including reporting and accountability, banking and investment and conduct of officers. (2) The seal of the ACA is to be kept in such custody as the ACA directs and must not be used except as authorised by the ACA. (3) All courts, judges and persons acting judicially must: (a) take judicial notice of the imprint of the seal of the ACA appearing on a document; and (b) presume that the imprint was duly affixed. ##### 16 Membership The ACA consists of the following members: (a) a Chair; (b) a Deputy Chair; (c) at least one, and not more than 3, other members. ##### 17 Appointment of members (1) The members of the ACA are to be appointed by the Governor‑General by written instrument. (2) The Chair and the Deputy Chair are to be appointed as full‑time members. (3) A member, other than the Chair or the Deputy Chair, may be appointed as a full‑time member or as a part‑time member. ##### 18 Appointment of associate members (1) The Minister may, by written instrument, appoint such associate members as he or she thinks fit. (2) An associate member may be appointed as a full‑time associate member or as a part‑time associate member. (3) An associate member’s instrument of appointment must contain a statement to the effect that the associate member’s appointment relates to one or more specified matters, being: (a) an inquiry held, or proposed to be held, under: (i) Part 25 of the Telecommunications Act 1997; or (ii) Part 5.2 of the Radiocommunications Act 1992; or (b) an investigation conducted, or proposed to be conducted, under Part 26 of the Telecommunications Act 1997; or (c) any other matter that relates to the performance of the ACA’s functions or the exercise of the ACA’s powers. ##### 19 Associate members to be treated as members for certain purposes (1) If an associate member’s instrument of appointment specifies an inquiry, the associate member is to be treated as a member for all purposes in connection with the inquiry (including hearings relating to the inquiry). (2) If an associate member’s instrument of appointment specifies an investigation, the associate member is to be treated as a member for all purposes in connection with the conduct of the investigation. (3) If an associate member’s instrument of appointment specifies a matter other than an inquiry or an investigation, the associate member is to be treated as a member for all purposes in connection with the matter. (4) An associate member is entitled to attend, and participate in discussions at, meetings of the ACA while a matter specified in the associate member’s instrument of appointment is being considered. (5) An associate member has a deliberative vote on a matter specified in the associate member’s instrument of appointment when a vote is taken on that matter at a meeting of the ACA at which the associate member is present. (6) Except as expressly provided by this Act, an associate member is taken not to be a director of the ACA for the purposes of the Commonwealth Authorities and Companies Act 1997. ##### 20 Qualification of members and associate members A person is not to be appointed as a member or associate member unless he or she appears to the appointing authority to be qualified for appointment because of his or her knowledge of, or experience in, one or more of the following fields: (a) industry; (b) commerce; (c) technology; (d) consumer affairs; (e) economics; (f) law; (g) public administration; (h) town planning; (i) conservation of natural or cultural heritage. ##### 21 Vacancy not to affect performance of functions The performance of the functions, or the exercise of the powers, of the ACA is not affected only because of there being a vacancy or vacancies in the membership of the ACA. ## Part 4—Meetings of the ACA ##### 22 Times and places of meetings (1) The ACA is to hold such meetings as are necessary for the efficient performance of its functions. (2) Meetings are to be held at such times and places as the ACA determines. This subsection has effect subject to subsections (3), (4) and (5). (3) The Chair may call a meeting at any time. (4) The Chair must call a meeting if requested to do so in writing by the Minister. (5) The Chair must call a meeting if requested to do so in writing by at least 2 members. ##### 23 Notice of meetings (1) Each member is entitled to receive notice of the ACA’s meetings. (2) If an associate member is entitled to attend a particular meeting of the ACA, the associate member is entitled to receive notice of the meeting. ##### 24 Presiding at meetings (1) The Chair presides at all meetings at which he or she is present. (2) If the Chair is not present at a meeting, the Deputy Chair presides. (3) If neither the Chair nor the Deputy Chair is present at a meeting, the members present are to appoint one of their number to preside. ##### 25 Quorum A majority of the members constitutes a quorum. ##### 26 Voting at meetings (1) A question is decided by a majority of the votes of the members present and voting. (2) The person presiding at a meeting has a deliberative vote and, if necessary, also a casting vote. (3) If an associate member has a deliberative vote on a matter as a result of section 19, the associate member is to be treated as a member for the purposes of the application of subsection (1) of this section to the matter. ##### 27 Conduct of meetings The ACA may, subject to this Part, regulate proceedings at its meetings as it considers appropriate. ##### 28 Resolutions without meetings (1) A resolution is taken to have been passed at a meeting of the ACA if: (a) without meeting, a majority of the interested members in relation to the resolution indicate agreement with the resolution in accordance with the method determined by the ACA under subsection (2); and (b) all interested members were informed of the proposed resolution, or reasonable efforts had been made to inform all interested members of the proposed resolution. (2) Subsection (1) applies only if the ACA: (a) determines that it applies; and (b) determines the method by which interested members are to indicate agreement with resolutions. (3) In this section: > interested members, in relation to a resolution, means: (a) the members; and (b) the associate members who would have been entitled to vote on the resolution at a meeting of the ACA if they had been present at the meeting. ##### 29 Minutes The ACA must keep minutes of its meetings. ##### 30 Disclosure of interests—associate members taken to be directors For the purposes of sections 27F to 27L of the Commonwealth Authorities and Companies Act 1997 (which deal with disclosure of interests, restrictions on voting and access to records), an associate member is taken to be a director of the ACA. ## Part 5—Administrative provisions ### Division 1—Members and associate members ##### 31 Term of appointment (1) A member is to be appointed for the period specified in the instrument of appointment. The period must not exceed 5 years. (2) If an associate member’s instrument of appointment specifies an inquiry, the associate member’s appointment: (a) begins at the time specified in the instrument of appointment; and (b) ends at the end of the day on which the ACA completes the preparation of a report about the inquiry under whichever of the following provisions is applicable: (i) section 495 of the Telecommunications Act 1997; (ii) section 261D of the Radiocommunications Act 1992. (3) If an associate member’s instrument of appointment specifies an investigation, the associate member’s appointment: (a) begins at the time specified in the instrument of appointment; and (b) ends at the end of the day on which the ACA completes the preparation of a report about the investigation under section 516 of the Telecommunications Act 1997. (4) If an associate member’s instrument of appointment specifies a matter other than an inquiry or an investigation, the associate member is to be appointed for the period specified in the instrument. The period must not exceed 5 years. ##### 32 Remuneration and allowances (1) A member or associate member is to be paid such remuneration as is determined by the Remuneration Tribunal. (2) If no determination of that remuneration is in operation, the member or associate member is to be paid such remuneration as is prescribed. (3) A member or associate member is to be paid such allowances as are prescribed. (4) This section has effect subject to the Remuneration Tribunal Act 1973. ##### 33 Other benefits (1) In addition to any remuneration or allowances payable under section 32, a member or associate member is to be paid such benefits as the Minister determines in writing. (2) Those benefits may include benefits by way of financial or other assistance in connection with housing, transport, insurance, long service leave or superannuation. ##### 34 Outside employment (1) The Chair must not engage in paid employment outside the duties of his or her office without the Minister’s written approval. (2) The other full‑time members and the full‑time associate members must not engage in paid employment outside the duties of their offices without the Chair’s written approval. (3) A part‑time member or part‑time associate member must not engage in any paid employment that, in the Minister’s opinion, conflicts, or may conflict, with the proper performance of the member’s duties or the associate member’s duties, as the case requires. ##### 35 Leave of absence (1) A full‑time member or full‑time associate member has such recreation leave entitlements as are determined by the Remuneration Tribunal. (2) The Minister may grant the Chair leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines in writing. (3) The Chair may grant another full‑time member or a full‑time associate member leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Chair determines in writing. (4) The Chair may grant leave to a part‑time member or part‑time associate member to be absent from a meeting or meetings of the ACA. ##### 36 Resignation A member or associate member may resign by writing signed by the member or associate member and sent to the appointing authority. ##### 37 Termination of appointment (1) The appointing authority must terminate the appointment of a member or associate member if the Minister is of the opinion that the performance of the member or associate member has been unsatisfactory for a significant period of time. (2) The Governor‑General must terminate the appointment of all of the members and associate members if the Minister is of the opinion that the performance of the ACA has been unsatisfactory for a significant period of time. (3) The appointing authority may terminate the appointment of a member or associate member because of misbehaviour or physical or mental incapacity. (4) If: (a) a member or associate member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or (b) a full‑time member or full‑time associate member: (i) engages, except with the Minister’s approval, in paid employment outside the duties of his or her office; or (ii) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or (c) a part‑time member or part‑time associate member: (i) engages in paid employment that, in the Minister’s opinion, conflicts with the proper performance of the member’s duties or the associate member’s duties, as the case requires; or (ii) is absent, except on leave of absence, from 3 consecutive meetings of the ACA; or (d) a member or associate member fails, without reasonable excuse, to comply with section 27F or 27J of the Commonwealth Authorities and Companies Act 1997 (in so far as that section relates to the ACA); the appointing authority may terminate the appointment of the member or associate member, as the case requires. (5) If the Minister is of the opinion that the members have failed to comply with section 48 or 50, the Governor‑General may terminate the appointment of all members or particular members. (6) If the Minister is of the opinion that the members have failed to comply with section 9 of the Commonwealth Authorities and Companies Act 1997 (in so far as that section relates to the ACA), the Governor‑General may terminate the appointment of all members or particular members. (7) If the Minister is of the opinion that the members have failed to comply with any of the following provisions (in so far as those provisions relate to the ACA): (a) subsection 13(2) or 15(1) of the Commonwealth Authorities and Companies Act 1997; (b) paragraph 16(1)(a) or (b) of the Commonwealth Authorities and Companies Act 1997; the Governor‑General may terminate the appointment of all members or particular members. ##### 38 Other terms and conditions A member or associate member holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the appointing authority. ##### 39 Acting appointments (1) The Deputy Chair is to act as the Chair: (a) during a vacancy in the office of Chair (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Chair is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. > Note: Under section 33A of the Acts Interpretation Act 1901, this Act applies in relation to a person acting as the Deputy Chair as if the person were the holder of the office of Deputy Chair. (2) The Minister may appoint a member to act as the Deputy Chair: (a) during a vacancy in the office of Deputy Chair (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the Deputy Chair is acting as the Chair, is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. (3) The Minister may appoint a person to act as a member (other than as Chair or Deputy Chair): (a) during a vacancy in the office of a member (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when a member is acting as the Deputy Chair, is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office. (4) Anything done by a person purporting to act under this section is not invalid merely because: (a) the occasion for the appointment had not arisen; or (b) there was a defect or irregularity in connection with the appointment; or (c) the appointment had ceased to have effect; or (d) the occasion for the person to act had not arisen or had ceased. ### Division 2—Staff of the ACA ##### 40 Staff of the ACA (1) The staff required for the purposes of the ACA are to be persons engaged under the Public Service Act 1999. (2) For the purposes of the Public Service Act 1999: (a) the Chair and the APS employees assisting the Chair together constitute a Statutory Agency; and (b) the Chair is the Head of that Statutory Agency. ##### 41 Arrangements with authorities of the Commonwealth (1) The ACA may make an arrangement with an authority of the Commonwealth: (a) for the services of officers or employees of the authority to be made available for the purposes of the ACA; or (b) for the services of officers or employees of the ACA to be made available for the purposes of the authority. (2) In this section: > authority of the Commonwealth means: (a) a Department; or (b) a body (whether incorporated or unincorporated) established for a public purpose by or under a law of the Commonwealth; or (c) any other body corporate in which: (i) the Commonwealth; or (ii) a body corporate referred to in paragraph (b); has a controlling interest. ##### 42 Consultants The ACA may engage as consultants to the ACA persons having suitable qualifications and experience. ### Division 3—Finances of the ACA ##### 43 Money of the ACA (1) There is payable to the ACA such money as is appropriated from time to time by the Parliament for the purposes of the ACA. (2) The Minister for Finance may give directions as to the amounts in which, and the times at which, money referred to in subsection (1) is to be paid to the ACA. ##### 44 Application and investment of money held by the ACA (1) The money of the ACA may only be applied: (a) in payment or discharge of the costs, expenses and other obligations incurred by the ACA in the performance of its functions or the exercise of its powers; and (b) in payment of any remuneration or allowances payable under this Act; and (c) in making any other payments which the ACA is authorised or required to make under this Act or any other law. (2) Subsection (1) does not prevent the investment of surplus money of the ACA under section 18 of the Commonwealth Authorities and Companies Act 1997. ##### 46 Limitation on contracts The ACA must not, without the approval of the Minister, enter into a contract under which the ACA is to pay or receive an amount exceeding: (a) $2 million; or (b) if a higher amount is specified in the regulations—that higher amount. ##### 47 Liability to taxation (1) The ACA is not subject to taxation under a law of the Commonwealth or of a State or Territory. (2) Sales tax is not payable by the ACA, or by any other person, on goods that are for use by the ACA. (3) However, the regulations may provide that this section does not apply in relation to taxation under a specified law. ### Division 4—Corporate plans ##### 48 Corporate plans (1) The ACA must prepare a corporate plan at least once a year and give it to the Minister. (2) The plan must cover a period of at least 3 years. (3) The plan must include details of the following matters: (a) the objectives of the ACA; (b) the strategies and policies that are to be followed by the ACA in order to achieve those objectives; (c) such other matters (if any) as the Minister requires. (4) The Chair must keep the Minister informed about: (a) changes to the plan; and (b) matters that might affect significantly the achievement of the objectives set out in the plan. (5) The Minister may give the Chair written guidelines that are to be used by the Chair in deciding whether a matter is covered by paragraph (4)(b). ### Division 5—Delegation ##### 49 Delegation (1) The ACA may, by writing, delegate any or all of the functions and powers conferred on the ACA by a law of the Commonwealth to: (a) a member; or (b) an associate member; or (c) a member of the staff of the ACA; or (d) a person whose services are made available to the ACA under subsection 41(1). (2) Subsection (1) does not apply to a power to make, vary or revoke a disallowable instrument. (3) In this section: > disallowable instrument means an instrument that is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. ### Division 6—Annual report ##### 50 Annual report (1) This section applies to the ACA’s annual report for a financial year prepared under section 9 of the Commonwealth Authorities and Companies Act 1997 of the Audit Act 1901. (2) The annual report must include: (a) a copy of each policy notification given to the ACA under section 28 of the Commonwealth Authorities and Companies Act 1997 during the financial year; and (b) a copy of each direction given to the ACA under section 12 during the financial year; and (c) if: (i) the ACA gave an instrument to a carrier or to a carriage service provider under section 581 of the Telecommunications Act 1997 during the financial year; and (ii) in the ACA’s opinion, the instrument does not contain confidential information; a copy of the instrument; and (d) in relation to each instrument the ACA gave as mentioned in subparagraph (c)(i) and that, in the ACA’s opinion, contains confidential information: (i) if, in the ACA’s opinion, part of the instrument can be reproduced in the annual report without disclosing confidential information—a copy of that part; and (ii) if subparagraph (i) does not apply—a statement specifying the instrument and the carrier or carriage service provider to which, and the day on which, it was given; and (iii) a statement that, because of confidential information contained in the instrument, or in a part of it, as the case requires, the instrument or part is not reproduced in the annual report; and (iv) a note summarising so much of the instrument as is not so reproduced, but without disclosing any information that, in the ACA’s opinion, is confidential; and (e) a report on: (i) the number and types of complaints made under Part 26 of the Telecommunications Act 1997 during the financial year; and (ii) the investigations conducted under Part 26 of that Act during the financial year as a result of complaints made under Part 26 of that Act; and (iii) the results of those investigations; and (f) a report on the operation of Part 6 of the Telecommunications Act 1997 during the financial year; and (g) a report setting out statistical information relating to information or documents disclosed under Division 3 of Part 13 of the Telecommunications Act 1997, where the disclosure: (i) occurred during the financial year; and (ii) is covered by a report given to the ACA under section 308 of the Telecommunications Act 1997. ## Part 6—Advisory committees and the Consumer Consultative Forum ##### 51 Advisory committees (1) The ACA may, by writing, establish advisory committees to assist it in performing any of its functions. (2) An advisory committee consists of such persons as the ACA from time to time appoints to the committee. (3) The ACA may give an advisory committee written directions as to: (a) the way in which the committee is to carry out its functions; and (b) procedures to be followed in relation to meetings. ##### 52 Consumer Consultative Forum (1) The ACA must, by writing, establish an advisory committee, to be known as the Consumer Consultative Forum, to assist the ACA in performing its functions in relation to matters affecting consumers. (2) The Consumer Consultative Forum consists of such persons as the ACA from time to time appoints to the Forum. (3) The ACA may give the Consumer Consultative Forum written directions as to: (a) the way in which the Forum is to carry out its functions; and (b) procedures to be followed in relation to meetings. (4) The powers conferred by subsection (1) do not, by implication, limit the powers conferred by subsection 51(1). ## Part 7—Miscellaneous ##### 53 Charges relating to the ACA’s costs (1) The ACA may, by written instrument, make determinations fixing charges for: (a) services and facilities provided by the ACA; and (b) any matter in relation to which expenses are incurred by the ACA under: (i) this Act; or (ii) the Telecommunications Act 1997; or (iia) the Telecommunications (Consumer Protection and Service Standards) Act 1999; or (iii) the Radiocommunications Act 1992; or (iv) an instrument made under an Act referred to in subparagraph (ii), (iia) or (iii); and specifying the persons by whom, and the times when, the charges are payable. (2) A charge fixed under subsection (1) must be reasonably related to the expenses incurred or to be incurred by the ACA in relation to the matters to which the charge relates and must not be such as to amount to taxation. (2A) For the purposes of recovering all or part of the ACA’s expenses relating to the performance of its functions under paragraph 8(1)(aa) or (ab), the ACA may charge a person an amount that has been: (a) agreed with the person; or (b) worked out under an agreement with the person. > Note 1: Paragraph 8(1)(aa) is about the ACA preparing to provide for the management of electronic addressing, and paragraph 8(1)(ab) is about the ACA providing for the management of electronic addressing. > Note 2: Subsection (2A) lets the ACA charge a consenting person for things done by the ACA in performing those functions, even though the charge would be a tax if it were imposed on the person without his or her consent. (2B) Subsection (2A) does not limit subsection (1). > Note: The ACA need not obtain a person’s agreement to a charge that relates to the ACA’s expenses in performing its functions mentioned in subsection (2A) and does not amount to taxation (either because the charge is a fee for the ACA providing the person with services or facilities or for another reason). (3) This section does not apply to services or facilities that the ACA provides under contract. (4) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. ##### 54 Definitions determination (1) The ACA may make a written determination defining one or more expressions used in specified instruments, being instruments that are made by the ACA under one or more specified laws of the Commonwealth. (2) A determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. (3) If the Minister is authorised to make an instrument under a law specified in a determination under subsection (1), the instrument may make provision for or in relation to a matter by applying, adopting or incorporating, with or without modification, the provisions of a determination under subsection (1) as in force from time to time. ##### 54A Determinations may define expressions by reference to other instruments (1) Without limiting the powers of the ACA to make determinations under subsection 54(1), a determination under that subsection may define an expression used in a specified instrument by applying, adopting or incorporating (with or without modifications) matter contained in any other instrument or writing whatever: (a) as in force or existing at a particular time; or (b) as in force or existing from time to time; even if the other instrument or writing does not yet exist when the determination is made. (2) A reference in subsection (1) to any other instrument or writing includes a reference to an instrument or writing: (a) made by any person or body in Australia or elsewhere (including, for example, the Commonwealth, a State or Territory, an officer or authority of the Commonwealth or of a State or Territory or an overseas entity); and (b) whether of a legislative, administrative or other official nature or of any other nature; and (c) whether or not having any legal force or effect; for example: (d) regulations or rules under an Act; or (e) a State Act, a law of a Territory, or regulations or any other instrument made under such an Act or law; or (f) an international technical standard or performance indicator; or (g) a written agreement or arrangement or an instrument or writing made unilaterally. (3) Nothing in this section limits the generality of anything else in it. (4) Subsection (1) has effect despite anything in the Acts Interpretation Act 1901. ##### 55 Person not to use protected name or protected symbol (1) A person must not: (a) use in relation to a business, trade, profession or occupation; or (b) use as the name, or as part of the name, of any firm, body corporate, institution, premises, vehicle, ship or craft (including aircraft); or (c) apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let on hire; or (d) use in relation to: (i) goods or services; or (ii) the promotion, by any means, of the supply or use of goods or services; either: (e) a protected name, or a name so closely resembling a protected name as to be likely to be mistaken for it; or (f) a protected symbol, or a symbol so closely resembling a protected symbol as to be likely to be mistaken for it. (2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 30 penalty units. > Note: See also sections 4AA and 4B of the Crimes Act 1914. (2A) Subsections (1) and (2) do not apply if the ACA consents in writing to the use or application of the name or symbol. > Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code). (3) Nothing in subsection (1) limits anything else in that subsection. (4) Nothing in subsection (1), so far as it applies in relation to a protected name or in relation to a protected symbol, affects rights conferred by law on a person in relation to: (a) a trade mark that is registered under the Trade Marks Act 1995; or (b) a design that is registered under the Designs Act 2003; and was registered under the Trade Marks Act 1995 or the Designs Act 1906 immediately before 16 August 1996 in relation to the name or symbol. (5) Nothing in this section, so far as it applies to a protected name or in relation to a protected symbol, affects the use, or rights conferred by law relating to the use, of the name or symbol by a person in a particular manner if, immediately before 16 August 1996, the person: (a) was using the name or the symbol in good faith in that manner; or (b) would have been entitled to prevent another person from passing off, by means of the use of the name or the symbol or a similar name or symbol, goods or services as the goods or services of the first‑mentioned person. (6) This section does not apply to a person who uses or applies a protected name or a protected symbol for the purpose of labelling customer equipment or customer cabling in accordance with section 407 of the Telecommunications Act 1997 or section 182 of the Radiocommunications Act 1992. (7) In this section: > protected name means: (a) “the ACA”; or (b) “Australian Communications Authority”. > protected symbol means an official symbol of the ACA, where the design of the symbol is set out in the regulations. ##### 56 ACA to maintain Register of policy notifications and Ministerial directions (1) The ACA is to maintain a Register in which the ACA includes: (a) all policies notified to the ACA under section 28 of the Commonwealth Authorities and Companies Act 1997; and (b) all directions given to the ACA under section 12. (2) The Register may be maintained by electronic means. (3) A person may, on payment of the charge (if any) fixed by a determination under section 53: (a) inspect the Register; and (b) make a copy of, or take extracts from, the Register. (4) For the purposes of this section, if the Register is maintained by electronic means, a person is taken to have made a copy of, or taken an extract from, the Register if the ACA gives the person a printout of, or of the relevant parts of, the Register. (5) If a person requests that a copy be provided in an electronic form, the ACA may provide the relevant information: (a) on a data processing device; or (b) by way of electronic transmission. (6) In this section: > data processing device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device. ##### 57 Regulations The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.