Transport and Communications Legislation
Amendment Act 1990

No. 11 of 1991

An Act to amend certain laws relating to transport and
communications, and for related purposes

[Assented to 21 January 1991]

The Parliament of Australia enacts:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Transport and Communications Legislation Amendment Act 1990.

Commencement

2. (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(2) Subsection 4 (1) is taken to have commenced at the same time Part IX of the Civil Aviation Act 1988 commenced.

(3) Section 8 commences:

(a) on the day on which this Act receives the Royal Assent; or

(b) immediately after the commencement of the Therapeutic Goods Act 1989;

whichever occurs later.

(4) Section 12 is taken to have commenced immediately after section 3 of the Civil Aviation Act 1988 commenced.

(5) Section 16 is taken to have commenced, or commences, as the case requires, immediately after section 10 of the Civil Aviation Amendment Act 1990 commenced.

(6) Subject to subsection (7), section 17 commences on a day to be fixed by Proclamation.

(7) If the commencement of section 17 is not fixed by Proclamation published in the Gazette within the period of 6 months beginning on the day on which this Act receives the Royal Assent, the section is repealed on the first day after the end of that period.

(8) Section 18 is taken to have commenced on 20 June 1990.

(9) Section 23 is taken to have commenced on 1 July 1990.

(10) Subject to subsection (11), section 24 commences on a day to be fixed by Proclamation.

(11) If the commencement of section 24 is not fixed by Proclamation published in the Gazette within the period of 6 months beginning on the day on which this Act receives the Royal Assent, the section is repealed on the first day after the end of that period.

(12) Section 44 is taken to have commenced on 1 July 1989.

(13) The amendments made in the Schedule are taken to have commenced as follows:

(a) the amendment of the Australian Airlines (Conversion to Public Company) Act 1988 is taken to have commenced immediately after the commencement of subsection 69 (2) of that Act;

(b) the amendment of the Civil Aviation Amendment Act 1990 is taken to have commenced immediately after the commencement of section 42 of that Act;

(c) the amendment of the Federal Airports Corporation Amendment Act 1990 is taken to have commenced immediately after the commencement of section 42 of that Act;

(d) the amendment of the Protection of the Sea Legislation Amendment Act 1986 is taken to have commenced immediately after the commencement of subsection 20 (2) of that Act;

(e) each amendment of a provision of, or an item in a Schedule

to, the Telecommunications and Postal Services (Transitional Provisions and Consequential Amendments) Act 1989 is taken to have commenced immediately after the commencement of the provision, or item, concerned.

PART 2—AMENDMENT OF THE AIR NAVIGATION ACT 1920

Principal Act

3. In this Part, “Principal Act” means the Air Navigation Act 19201.

Regulations

4. (1) Section 26 of the Principal Act is amended by omitting subsection (1aa).

(2) Conduct engaged in before this Act receives the Royal Assent is not taken to become an offence as a result of the enactment of subsection 2 (2) of this Act or subsection (1) of this section.

PART 3—AMENDMENT OF THE AIR NAVIGATION
(CHARGES) ACT 1952

Principal Act

5. In this Part, “Principal Act” means the Air Navigation (Charges) Act 19522.

Air navigation charges

6. Section 5 of the Principal Act is amended by omitting subsection (2) and substituting the following subsections:

“(2) Where a charge under this Act is not paid within 28 days, or such other period as is prescribed, after the day on which the charge became due and payable, the person liable for the charge is liable to pay to the Commonwealth, in addition to the charge, a penalty.

“(2a) The penalty is to be calculated upon the unpaid amount of the charge at the rate of:

(a) 1.5% for each month or part of a month; or

(b) such other percentage as is prescribed for such period, or part of such period, as is prescribed;

during which it is unpaid, calculated from the day on which the charge became due and payable, and compounded.”.

PART 4—AMENDMENTS OF THE BROADCASTING ACT 1942

Principal Act

7. In this Part, “Principal Act” means the Broadcasting Act 19423.

Interpretation

8. Section 4 of the Principal Act is amended by inserting the following definition in subsection (1):

“ ‘medicine’ means a drug within the meaning of the Therapeutic Goods Regulations made under the Therapeutic Goods Act 1989, but does not include any such drug that, under paragraph 3 (2) (b) of that Act, would not be taken, for the purposes of that Act, to be therapeutic goods for use in humans;”.

Special provisions relating to advertisements

9. (1) Section 100 of the Principal Act is amended by omitting subsection (7) and substituting the following subsection:

“(7) The Secretary to the Department of Community Services and Health may, by signed instrument, delegate his or her power under this section to approve the text of an advertisement to:

(a) a medical officer of a State; or

(b) the Proprietary Medicines Association of Australia or any other body:

(i) carrying out, or associated with, research into medicines; or

(ii) formed to represent the interests of manufacturers or distributors of medicines.”.

(2) A delegation by the Secretary to the Department of Community Services and Health to a medical officer of a State, under subsection 100 (7) of the Principal Act, that was in force immediately before the commencement of this section is taken, after that commencement, to have been made under subsection 100 (7) of the Principal Act as amended by this Act.

PART 5—AMENDMENTS OF THE CIVIL AVIATION ACT 1988

Principal Act

10. In this Part, “Principal Act” means the Civil Aviation Act 19884.

Long title

11. The title of the Principal Act is amended by inserting “civil aviation, in particular” after “relating to”.

Interpretation

12. Section 3 of the Principal Act is amended by omitting “being a machine, craft or object of a kind prescribed for the purposes of that Division;” from the definition of “aircraft” in subsection (1).

Functions of Authority

13. Section 9 of the Principal Act is amended:

(a) by inserting after subsection (1) the following subsection:

“(1a) The functions include carrying out activities to protect the environment from the effects of, and the effects associated with, the operation and use of aircraft (other than state aircraft):

(a) in the course of trade and commerce with other countries, or among the States; or

(b) in the course of, or for the purposes of, the provision of services by a trading corporation (within the meaning of paragraph 51 (xx) of the Constitution); or

(d) in a Territory, between Territories or between a Territory and a State; or

(e) in journeys to or from places that have been acquired by the Commonwealth for public purposes; or

(f) that are:

(i) in the possession or under the control of the Commonwealth or an authority of the Commonwealth; or

(ii) being used wholly or principally for a purpose of the Commonwealth.”;

(b) by inserting in subsection (4) “, and the function referred to in subsection (1a),” after “facilities”.

Insertion of new section

14. After section 9 of the Principal Act the following section is inserted:

Performance of functions of Authority

“9a. The Authority must endeavour to perform its functions, other than its regulatory functions, in a manner that ensures that, as far as is practicable, the environment is protected from the effects of, and the effects associated with, the operation and use of aircraft (other than state aircraft).”.

Directions

15. Section 12 of the Principal Act is amended:

(a) by inserting in subsection (1) “or the exercise of its powers” after “functions”;

(b) by adding at the end the following subsection:

“(4) The Authority must comply with a direction given under subsection (1).”.

Repeal of section and substitution of new section

16. Section 23a of the Principal Act is repealed and the following section is substituted:

Statements of the contents of cargo

“23a. (1) The regulations may require a person who, in the circumstances specified in the regulations, consigns for carriage any cargo on board an aircraft to make a statement, of a kind specified in the regulations, concerning the contents of the cargo.

“(2) A person must not consign for carriage any cargo on board an aircraft, in circumstances in which regulations made for the purposes of subsection (1) require a statement to be made, unless:

(a) the cargo is accompanied by; or

(b) the person responsible for delivery of the cargo has been given;

a statement that complies with the regulations made for the purposes of that subsection.

Penalty: $3,000.

“(3) A person must not, in purported compliance with the requirements of regulations made for the purposes of subsection (1), knowingly or recklessly make a statement that is false or misleading in a material particular.

Penalty: Imprisonment for 2 years.”.

Reimbursement of cost of complying with directions

17. Section 48 of the Principal Act is amended by omitting subsection (3) and substituting the following subsection:

“(3) This section does not apply to a direction of the Minister:

(a) that requires the Authority to carry out activities to protect the environment from the effects of, or the effects associated with, the operation and use of aircraft; or

(b) made under section 47 or 56.”.

Charges for services and facilities

18. Section 66 of the Principal Act is amended:

(a) by omitting from subsection (4) “it” and substituting “the proposed determination”;

(b) by omitting from paragraph (6) (b) “Authority” and substituting “Board”;

Regulations etc.

19. Section 98 of the Principal Act is amended:

(a) by omitting from paragraph (3) (o) “and”;

(b) by adding at the end of subsection (3) the following word and paragraph:

“; and (q) enabling a person who is alleged to have contravened a specified provision of the regulations to pay to the Authority, as an alternative to prosecution, a specified penalty, not exceeding an amount equal to one-fifth of the maximum penalty prescribed for contravening that provision.”.

PART 6—AMENDMENTS OF THE FEDERAL AIRPORTS
CORPORATION ACT 1986

Principal Act

20. In this Part, “Principal Act” means the Federal Airports Corporation Act 19865.

Performance of functions of Corporation

21. Section 7 of the Principal Act is amended by inserting after paragraph (2) (c) the following paragraph:

“(ca) ensures that, as far as is practicable, the environment is protected from the effects of, and the effects associated with, the operation and use of aircraft (other than state aircraft within the meaning of the Civil Aviation Act 1988) operating to or from Federal airports;”.

Extent of functions of Corporation

22. Section 8 of the Principal Act is amended by inserting after paragraph (1) (d) the following paragraph:

“(da) carrying out activities to protect the environment from the effects of, and the effects associated with, the operation and use of aircraft (other than state aircraft within the meaning of the Civil Aviation Act 1988) operating to or from Federal airports;”.

Reimbursement for financial detriment suffered as a result of declarations

23. Section 27a of the Principal Act is amended by omitting from paragraph (2) (c) “foregoing” and substituting “forgoing”.

Reimbursement of cost of complying with directions

24. Section 42 of the Principal Act is amended:

(a) by omitting from subsection (1) “Where” and substituting “Subject to subsection (1a), where”;

(b) by omitting from subsection (1) “other than a direction the notice of which stated that the direction is in accordance with the general policy of the Commonwealth Government,”;

“(1a) Subsection (1) does not apply to a direction given under subsection 41 (2):

(a) the notice of which stated that the direction is in accordance with the general policy of the Commonwealth Government; or

(b) that requires the Corporation to carry out activities to protect the environment from the effects of, or the effects associated with, the operation and use of aircraft operating to or from Federal airports.”.

PART 7—AMENDMENTS OF THE MOTOR VEHICLE
STANDARDS ACT 1989

Principal Act

25. In this Part, “Principal Act” means the Motor Vehicle Standards Act 19896.

Interpretation

26. Section 3 of the Principal Act is amended by omitting from subsection (1) the definition of “nonstandard” and substituting the following definition:

“ ‘nonstandard’, in relation to a road vehicle or a vehicle component, means:

(a) in the case of a road vehicle in respect of which the Minister has given an approval under subsection 10 (2)—not complying with the national standards, other than in the minor and inconsequential respects to which the approval relates; or

(b) in any other case—not complying with the national standards;”.

Procedures for testing vehicles

27. Section 9 of the Principal Act is amended:

(a) by inserting after paragraph (1) (b) the following paragraph:

“(ba) the testing and inspection of materials, machinery, appliances, articles or facilities used in the manufacture of road vehicles or vehicle components; or”;

(b) by omitting from paragraph (1) (c) “such testing and inspection” and substituting “testing and inspection referred to in paragraph (a) or (ba)”.

Repeal of section and substitution of new section

28. Section 10 of the Principal Act is repealed and the following section is substituted:

Compliance plates

“10. (1) The regulations are to provide for arrangements under which plates are to be placed on road vehicles to indicate that:

(a) the vehicles comply with the national standards; or

(b) approval has been given under subsection (2) for plates to be placed on the vehicles.

“(2) If a vehicle does not comply with the national standards, but the Minister is satisfied that it is only in minor and inconsequential respects that the vehicle fails so to comply, the Minister may give written approval for plates to be placed on the vehicle.

“(3) Approvals under subsection (2) may be subject to written conditions determined by the Minister.”.

Powers of inspectors

29. Section 27 of the Principal Act is amended by inserting in subsection (1) “, procedures determined under section 9” after “regulations”.

Application for review

30. Section 39 of the Principal Act is amended by inserting before paragraph (1) (a) the following paragraph:

“(aa) a decision of the Minister under section 10; and”.

PART 8—AMENDMENTS OF THE NAVIGATION ACT 1912

Principal Act

31. In this Part, “Principal Act” means the Navigation Act 19127.

Persons unsuitable for engagement

32. (1) Section 47 of the Principal Act is amended:

(a) by omitting from subsection (3) “prescribed principles” and substituting “such rules and principles as are prescribed”;

(b) by inserting after subsection (3) the following subsection:

“(4) Regulations made for the purposes of subsection (3) may prescribe that, if it is established that the character of a person is such, or the conduct of a person has been such, as is specified

in the regulations, the Marine Council must determine that the person is unsuitable for engagement as a seaman.”.

(2) Regulations made before the commencement of this section for the purposes of subsection 47 (3) of the Principal Act are taken to have been made for the purposes of that subsection as amended by this Act.

Insertion of new section

33. After section 386 of the Principal Act the following section is inserted:

Abuse of alcohol and other drugs

“386a. (1) If a master or seaman is, while on board a ship, under the influence of alcohol or any other drug (whether medicinal or otherwise) to such an extent that the person’s capacity to carry out the person’s duties as master or seaman is impaired, the person is guilty of an offence.

Penalty: Imprisonment for 12 months.

“(2) If:

(a) a master or seaman is, while on board a ship, under the influence of alcohol or any other drug (whether medicinal or otherwise) to such an extent that the person’s capacity to carry out the person’s duties as master or seaman is impaired; and

(b) the impairment causes or contributes to:

(i) the loss or destruction of, or damage to, the ship, its cargo or equipment; or

(ii) the loss or destruction of, or damage to, another ship, its cargo or equipment; or

(iii) death or injury to another person;

the person is guilty of an offence.

Penalty: Imprisonment for 2 years.”.

PART 9—AMENDMENT OF THE PROTECTION OF THE SEA
(PREVENTION OF POLLUTION FROM SHIPS) ACT 1983

Principal Act

34. In this Part, “Principal Act” means the Protection of the Sea (Prevention of Pollution from Ships) Act 19838.

Evidence of analyst

35. Section 31 of the Principal Act is amended:

(a) by omitting subsection (2) and substituting the following subsection:

“(2) Subject to subsection (4), a certificate signed by an

analyst appointed under subsection (1) setting out, in relation to a substance, one or more of the following:

(a) when and from whom the substance was received;

(b) what labels or other means of identifying the substance accompanied it when it was received;

(d) a description of the substance received;

(e) that he or she has analysed or examined the substance;

(f) the date on which the analysis or examination was carried out;

(g) the method used in conducting the analysis or examination;

(h) the results of the analysis or examination;

is admissible in any proceeding for an offence against a provision of this Act as prima facie evidence of the matters in the certificate and the correctness of the results of the analysis or examination.”;

(b) by adding at the end the following subsection:

“(6) Subsection (5) does not entitle a person to require an analyst to be called as a witness for the prosecution unless:

(a) the prosecutor has been given at least 5 days notice of the person’s intention to require the analyst to be so called; or

(b) the Court, by order, allows the person to require the analyst to be so called.”.

PART 10—AMENDMENT OF THE SHIPS (CAPITAL GRANTS)
ACT 1987

Principal Act

36. In this Part, “Principal Act” means the Ships (Capital Grants) Act 19879.

Interpretation

37. Section 3 of the Principal Act is amended by omitting the definitions of “ship” and “tanker” and substituting the following definitions:

“ ‘ship’ means any kind of vessel:

(a) that is used; or

(b) that is in the course of construction and is intended to be used;

wholly or primarily in navigation by water, however propelled or moved, and includes:

(d) an air-cushion vehicle, or similar craft; or

(e) an off-shore industry mobile unit (within the meaning of the Navigation Act 1912);

but does not include an off-shore industry mobile unit (within the meaning of that Act) that is not self-propelled;

‘tanker’ means a ship that is constructed or adapted, or that is in the course of construction or adaptation, primarily to carry oil or other liquids in bulk in its cargo spaces;”.

PART 11—AMENDMENTS OF THE TELECOMMUNICATIONS
ACT 1989

Principal Act

38. In this Part, “Principal Act” means the Telecommunications Act 198910.

Minister may give directions to AUSTEL

39. Section 111 of the Principal Act is amended by inserting in subsection (1) “, varying or cancelling” after “issuing” (wherever occurring).

Insertion of new section

40. After section 114 of the Principal Act the following section is inserted:

Disconnection of customer equipment for which there is no permit

“114a. Where:

(a) a person has under his or her control customer equipment connected to a telecommunications network; and

(b) there is no permit in force for connection of the customer equipment to a telecommunications network; and

(i) there is no permit in force for the connection of the customer equipment to a telecommunications network; and

(ii) the person must disconnect the customer equipment from any telecommunications network to which it is connected within 7 days, or such longer period as is specified in the notice, after the notice is given;

the person is guilty of an offence if he or she fails to comply with the notice.

Penalty: $12,000.”.

Sale or supply of customer equipment for which there is no permit

41. Section 115 of the Principal Act is amended by omitting “informing the other person” and substituting “notifying the other person in writing, in the form prescribed by the regulations,”.

Action for unauthorised connection to telecommunications network of customer equipment or customer cabling

42. Section 143 of the Principal Act is amended:

(a) by inserting after subparagraph (1) (a) (ii) the following subparagraph:

“(iia) has under his or her control customer equipment connected to a telecommunications network that, contrary to section 114a, has not been disconnected from the network;”;

(b) by omitting paragraph (1) (b) and substituting the following paragraph:

“(b) as a result of:

(i) the connection of the customer equipment or customer cabling to the network; or

(ii) the customer equipment or customer cabling being used while it was so connected; or

(iii) the customer equipment not being disconnected from the network; or

(iv) the customer equipment being used after it was required to be disconnected from the network;

damage is caused to the network, or the carrier operating the network suffers a loss or incurs a liability;”.

Insertion of new section

43. After section 180 of the Principal Act the following section is inserted:

AUSTEL may waive fees

“180a. AUSTEL may, in its discretion, on behalf of the Commonwealth, wholly or partly waive a fee that would otherwise be payable by a person under section 4 of the Telecommunications (Application Fees) Act 1989.”.

Insertion of new section

44. After section 181 of the Principal Act the following section is inserted:

Liability to taxation

“181a. (1) Subject to subsection (2), AUSTEL is not subject to taxation under a law of the Commonwealth or of a State or Territory and, in particular, is not subject to sales tax.

“(2) The regulations may provide that subsection (1) does not apply in relation to taxation under a specified law.”.

PART 12—AMENDMENTS OF OTHER ACTS

Amendments of other Acts

45. The Acts specified in the Schedule are amended as set out in the Schedule.

SCHEDULE Section 45

AMENDMENTS OF OTHER ACTS

Australian Airlines (Conversion to Public Company) Act 1988

Schedule 2:

Omit “Australian National Airlines Amendment Act 1987”, substitute “Australian National Airlines Amendment Act 1988”.

Civil Aviation Amendment Act 1990

Subsection 42 (2):

Omit “by the Authority” (first occurring), substitute “under the Public Service Act 1922”.

Federal Airports Corporation Amendment Act 1990

Item 1 of the Schedule:

Omit “17 (1) (a)”, substitute “17 (1) (b)”.

Protection of the Sea Legislation Amendment Act 1986

Paragraph 20 (2) (b):

Omit “and” (first occurring), substitute “and,”.

Telecommunications and Postal Services (Transitional Provisions and
Consequential Amendments) Act 1989

Paragraph 44 (h):

Add at the end “(first occurring)”.

Section 53:

Omit “officer”, substitute “employee”.

The items in Part 2 of the Schedule that amend the Australian Security Intelligence Organization Act 1979:

Omit “Postal Services Act 1975” (wherever occurring), substitute “the Postal Services Act 1975”.

The item in Part 2 of the Schedule that amends the Schedule to the Sea Installations Act 1987:

Omit “Air Navigation (Charges) Act 1952”, substitute “AUSSAT Act 1984”.

NOTES

1. No. 50, 1920, as amended. For previous amendments, see No. 93, 1936; Nos. 6 and 89, 1947; No. 80, 1950; No. 39, 1960; No. 72, 1961; No. 8, 1963; No. 93, 1966; No. 79, 1971; Nos. 130 and 216, 1973; No. 124, 1974; No. 91, 1977; No. 19, 1979; No. 27, 1980; No. 80, 1982; No. 39, 1983; Nos. 69 and 108, 1984; No. 69, 1986; No. 63, 1988; Nos. 6 and 45, 1989; and No. 23, 1990.

2. No. 101, 1952, as amended. For previous amendments, see No. 87, 1957; No. 49, 1960; No. 78, 1962; No. 97, 1963; No. 95, 1964; Nos. 107 and 125, 1965; No. 48, 1966; No. 79, 1967; No. 84, 1968; No. 75, 1969; No. 105, 1970; No. 100, 1972; No. 179, 1973; No. 114, 1974; Nos. 5 and 124, 1976; No. 176, 1978; No. 142, 1979; No. 138, 1980; No. 123, 1981; Nos. 77 and 80, 1982; No. 107, 1984; Nos. 76 and 168, 1986; Nos. 57 and 63, 1988; and No. 29, 1989.

3. No. 33, 1942, as amended. For previous amendments, see No. 39, 1946; No. 64, 1948; No. 80, 1950; No. 41, 1951; No. 12, 1953; No. 82, 1954; Nos. 33, 65 and 92, 1956; No. 36, 1960 (as amended by No. 32, 1961); No. 96, 1962; No. 82, 1963; Nos. 67 and 121, 1964; Nos. 38 and 120, 1965; No. 57, 1966; No. 47, 1967; No. 69, 1968; Nos. 21 and 31, 1969; Nos. 8, 72 and 136, 1971; No. 49, 1972; Nos. 50 and 216 1973; No. 55, 1974; No. 56, 1975; Nos. 89, 157 and 187, 1976; No. 160, 1977; Nos. 36, 52 and 210, 1978; Nos. 143 and 177, 1980; Nos. 61, 113 and 153, 1981; No. 154, 1982; Nos. 7, 37, 39, 91 and 136, 1983; Nos. 10, 63, 72, 163 and 165, 1984; Nos. 66 and 191, 1985; Nos. 2 and 76, 1986; Nos. 68, 79, 80, 134 and 184, 1987; Nos. 56, 99, 109, 146 and 147, 1988; Nos. 29, 31 and 63, 1989; and No. 23, 1990.

4. No. 63, 1988, as amended. For previous amendments, see No. 55, 1988; Nos. 6 and 21, 1989; and No. 25, 1990.

5. No. 4, 1986, as amended. For previous amendments, see Nos. 55, 57, 63, 99 and 150, 1988; Nos. 6 and 21, 1989; and No. 26, 1990.

6. No. 65, 1989, as amended. For previous amendments, see No. 23, 1990.

7. No. 4, 1913, as amended. For previous amendments, see No. 32, 1919; No. 1, 1921; No. 8, 1925; No. 8, 1926; No. 49, 1934; No. 30, 1935; No. 1, 1943; No. 80, 1950; No. 109, 1952; No. 96, 1953; No. 46, 1956; No. 36, 1958; No. 96, 1961; No. 1, 1965; No. 93, 1966; No. 60, 1967; No. 62, 1968; Nos. 1 and 117, 1970; No. 28, 1972; No. 216, 1973; Nos. 92 and 157, 1976; Nos. 97 and 155, 1979; Nos. 70 and 87, 1980; Nos. 10, 36, 61 and 74, 1981; No. 80, 1982; Nos. 39, 40, 84 and 136, 1983; No. 72, 1984; Nos. 65 and 193, 1985; Nos. 76, 132, 163 and 167, 1986; No. 141, 1987; Nos. 34, 57, 87, 99 and 127, 1988; Nos. 6 and 63, 1989; and No. 23, 1990.

8. No. 41, 1983, as amended. For previous amendments, see No. 72, 1984; No. 65, 1985; Nos. 81 and 167, 1986; No. 141, 1987; Nos. 57 and 99, 1988; No. 6, 1989; and No. 23, 1990.

9. No. 74, 1987, as amended. For previous amendments, see No. 6, 1989; and No. 23, 1990.

10. No. 53, 1989, as amended. For previous amendments, see No. 23, 1990.

[Minister’s second reading speech made in—

House of Representatives on 7 November 1990

Senate on 15 November 1990]