Telecoms, Media & Internet Laws and Regulations Report 2024 Australia

1.1        Please describe the: (a) telecoms, including internet; and (b) audio-visual media distribution sectors in your jurisdiction, in particular by reference to each sector’s: (i) annual revenue; and (ii) 3–5 most significant market participants.

Telecoms, including internet

The Australian telecommunications industry experienced significant shifts in 2022 and 2023 due to the lasting impacts of COVID-19, the 5G network rollout, and the National Broadband Network (NBN) implementation.  Industry revenue is expected to increase from AUD $34 billion in 2023 to $37 billion by 2028, with increased demand for home fixed-line services and mobile services.  Data consumption has also risen, leading to investments in reliable mobile network structures to satisfy demand.

The NBN, a public-funded fixed-line multi-technology network, is available for 12.3 million homes and businesses, with 8.6 million currently connected to an NBN plan.  Household spending on telecommunications services is still the largest market segment in Australia, followed by businesses and Government.

Revenues are concentrated in the top four market participants, accounting for 80% of revenue in 2022–2023.  Telstra leads with a 36.5% market share, followed by Singtel Optus (18.1%), NBN Co (16.7%) and TPG Telecom (8.3%).  Due to the concentration of market power, the Australian Competition and Consumer Commission (ACCC) actively monitors and in some cases objects to deals that may reduce competition, such as the blocked Telstra-TPG mobile network sharing proposal in 2022.

Audio-visual media distribution

The Free-to-Air (FTA) television broadcasting industry in Australia is projected to struggle in the coming years, with viewership decreasing due to competition from alternative media platforms.  FTA revenue has fallen 0.3% from 2019 to 2024, sitting at AUD $5.2 billion in 2023.  Revenue is expected to fall further through 2024–2029.  The FTA market is concentrated, with Seven West Media Limited, Nine Entertainment, and the Australian Broadcasting Corporation (ABC) holding over 80% of the market share.  FTA relies heavily on sports broadcasting, reality TV shows and news to drive viewership.

Pay TV has also contracted in recent years, with viewership diverted to Subscription Video-on-Demand (SVOD), as well as the rise of telco-tainment.  Foxtel stays the dominant player in Pay TV, with over 4.1 million subscribers as of October 2023.

SVOD platforms have become more popular, taking viewership away from FTA and Pay TV industries.  The demand for SVOD increased during the COVID-19 pandemic, and the rollout of the NBN improved internet connectivity.

Netflix dominates the SVOD market in Australia, followed by Stan, Binge, Disney+ and Amazon Prime Video.  Foxtel Group’s Kayo Sports has 1.1 million Australian subscribers.

SVOD services are expected to continue growing, although growth may slow as the market approaches saturation.  The focus may shift towards incorporating advertisements for other revenue.  Technological advances, including faster broadband speeds and 5G networks, will make internet publishing and broadcasting services more accessible, increasing demand and revenue.  However, greater competition may limit pricing and revenue growth.

1.2        List the most important legislation which applies to the: (a) telecoms, including internet; and (b) audio-visual media distribution sectors in your jurisdiction and any significant legislation on the horizon such as the regulation of online harms, regulation of social media or artificial intelligence (please list the draft legislation and policy papers).

The object of regulation in the telecommunications market is to promote access by customers to innovative and affordable services by increasing competition in the telecommunications industry and protecting the interests of consumers.  The principal legislation governing these sectors are:

• the Telecommunications Act 1997 (Cth) (Telecommunications Act) – deals with licensing and the rights and obligations of carriers and service providers;
• the Broadcasting Services Act 1992 (Cth) (BSA) – regulates broadcasting (including digital television services), subscription services, online content (for Internet Service Providers (ISPs)), narrow casting and datacasting;
• the Radiocommunications Act 1992 (Cth) – regulates radio-frequency spectrum management and licensing; and
• the Competition and Consumer Act 2010 (Cth) (CCA) – provides both general competition regulation and a telecommunications-specific competition regulation regime.

The telecommunications (including internet) sector is also subject to:

• the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) (TCPSS Act) – establishes the Universal Service Obligation (USO) and consumer protection regulation;
• the Assistance and Access Act 2018 (Cth) – allows intelligence agencies and law enforcement to issue specific notices and requests to ‘designated communication providers’, requiring them to provide access to end-to-end encrypted communications;
• the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act) – regulates interception and law enforcement, prohibits telecommunication service providers from disclosing information about their customers’ use of telecommunications services, and was recently amended to include data retention obligations;
• the Telecommunications Sector Security Reforms – establishes a regulatory framework to improve management of national security risks (i.e., espionage, sabotage and foreign interference) to Australia’s telecommunications industry;
• the National Broadband Network Companies Act 2011 (Cth) – governs the ownership, control and reporting obligations of NBN Co; and
• the Online Safety Act 2021 (Cth).  Please see question 6.5 below for further details of this legislation.

1.3        List the government ministries, regulators, other agencies and major industry self-regulatory bodies which have a role in the regulation of the: (a) telecoms, including internet; (b) audio-visual media distribution sectors; (c) social media platforms; and (d) artificial intelligence in your jurisdiction.

Telecommunications, internet and audio-visual media distribution is regulated by the Government.  The key bodies are:

• the Minister for Communications, Minister for Cyber Security and the Minister for the Arts – are responsible for overseeing and implementing policies and programmes related to Australia’s communication infrastructure, services and digital technologies;
• the Attorney-General’s Department – administers the TIA Act, but does not investigate crimes;
• the ACCC – promotes competition within the telecommunications industry and ensures that the consumers’ interests are protected;
• the Australian Communications and Media Authority (ACMA) – oversees the regulation of the technical and non-competition aspects of the telecommunications industry, including the development of and the monitoring of compliance with industry codes of practice;
• the eSafety Commissioner – is responsible for promoting and enhancing online safety for all Australians; and
• the Telecommunications Industry Ombudsman – provides an independent dispute resolution service for telephone and internet complaints.

The key non-government industry bodies are:

• the Communications Alliance – provides a unified voice for the Australian communications industry and its members in facilitating open, effective and ethical competition between service providers and in providing a forum for the telecommunications industry;
• Broadcast Australia – owns and operates multimedia transmission infrastructure in Australia, and provides digital television and digital and analogue radio for the ABC and the Special Broadcasting Service and other commercial broadcasters;
• the Australian Communications Consumer Action Network – a Government-funded communications consumer organisation that represents individuals, small businesses and not-for-profit groups as consumers of communications products and services; and
• the Australian Information Industry Association – a representative body and advocacy group for the digital ecosystem.

1.4        In relation to the: (a) telecoms, including internet; and (b) audio-visual media distribution sectors: (i) have they been liberalised?; and (ii) are they open to foreign investment including in relation to the supply of telecoms equipment?  Are there any upper limits?

Liberalisation in the telecommunications and audio-visual media distribution sectors in Australia has led to increased competition.  The retail providers’ competition is driven by the construction of the NBN network, regulatory focus by the ACCC, digitisation and the shift towards mobile telecommunications services.  The rise of SVOD platforms, such as Netflix, Stan, Binge and Kayo Sports, intensifies competition in the FTA and Pay TV industries.

The Treasurer of Australia oversees foreign investment decisions and administers the Australian Foreign Investment Policy.  The Foreign Investment Review Board (FIRB) assists in implementing the Foreign Acquisitions and Takeovers Act 1975 (Cth) and advises the Treasurer.

The telecommunications sector is sensitive concerning foreign investment, with lower thresholds and stricter requirements.  The Telstra Corporation Act 1991 (Cth) restricts aggregate foreign ownership in Telstra to 35% of non-Commonwealth-owned shares and individual foreign ownership to 5%, subject to exemptions.  The Communications Minister may impose additional carrier licence conditions related to foreign investment.  Since 2021, all foreign investments in telecommunication Carriers and Carriage service providers (CSPs) require FIRB approval.

Foreign investment in NBN Co is prohibited until privatisation, and may be subject to restrictions, including ownership or control limitations imposed by the Communications Minister.  Further details on foreign ownership of media companies are outlined below at question 5.3.

2.1        Is your jurisdiction a member of the World Trade Organization?  Has your jurisdiction made commitments under the GATS regarding telecommunications and has your jurisdiction adopted and implemented the telecoms reference paper?

Australia is a member of the World Trade Organization (WTO).  Australia has made commitments under the General Agreement on Trade in Services (GATS), the Fourth Protocol on Basic Telecommunications, and adopted the WTO Basic Telecommunications Reference Paper.

Australia’s commitments under GATS in relation to telecommunications are outlined in a ‘Schedule of Specific Commitments’ submitted to the WTO and include key commitments in areas such as Market Access, Independent Regulatory Authority, the USO, Interconnection and Access and Competition Safeguards.

2.2        How is the provision of telecoms (or electronic communications) networks and services regulated?

The provision of telecommunications networks and services are regulated under a combination of the legislation (listed in question 1.2 above), regulatory bodies (listed in question 1.3 above), Government policies and industry codes and standards such as:

• The NBN: The NBN is a Government-owned company responsible for building and operating Australia’s wholesale fixed-line broadband network.  The NBN operates under a specific regulatory framework to ensure equitable access for all service providers.
• The USO: The USO is a Government policy that ensures all Australians have reasonable access to Standard Telephone Services (STSs) and payphones, regardless of their location.
• Privacy Laws: Telecommunication providers in Australia must comply with privacy laws, such as the Privacy Act 1988 (Cth), which govern the handling of personal information.
• Industry Codes and Standards: The telecommunications industry in Australia develops and adheres to various codes of practice and standards (such as the Telecommunications Consumer Protections (TCP) Code, Mobile Premium Services Code, Customer Service Guarantee, Network Reliability Framework, and Communications Alliance Codes and Guidelines).  These codes cover areas such as customer service, billing, complaints handling and network performance.

2.3        Who are the regulatory and competition law authorities in your jurisdiction?  How are their roles differentiated?  Are they independent from the government?  Which regulator is responsible for social media platforms?  What statutory basis do they have?

Regulatory authorities for the telecommunications sector in Australia are the ACMA and the ACCC.  The ACMA primarily focuses on the regulation of the communications and media industries in Australia; this includes telecommunications, broadcasting, radiofrequency spectrum and online content.  The ACCC is a broader regulatory body that oversees competition and consumer protection across various industries, including telecommunications.

The ACMA and the ACCC function independently from the Government except where the Minister for Communications has residual regulatory powers.

The eSafety Commissioner is a regulatory body established under the Online Safety Act 2021 (Cth) which overlooks social media platforms.

2.4        Are decisions of the national regulatory authority able to be appealed?  If so, to which court or body, and on what basis?

Decisions made by the ACCC can be appealed to the Federal Court of Australia (FCA) or the Australian Competition Tribunal (ACT) on the following grounds:

• The FCA: Appeals to the Federal Court can be made on various grounds, including errors of law, procedural irregularities, or disputes over facts.  It is important to establish that there is a legitimate legal basis for challenging the ACCC’s decision.
• The ACT: In certain cases, parties may appeal decisions made by the ACCC to the ACT.  This option is available for specific types of decisions, such as merger authorisations and access disputes.

Decisions made by the ACMA can be appealed to the Administrative Appeals Tribunal (AAT) on grounds of merits, and to the FCA for judicial review on grounds of administrative law.

2.5        What types of general and individual authorisations are used in your jurisdiction?  Please highlight those telecom-based authorisations needed for the installation and/or maintenance of infrastructure?

The ACMA identify Carriers and CSPs as the two main types of organisations involved in the provision of services to the public.  The Telecommunications Act distinguishes between them as being:

• carriers – entities that own telecommunications infrastructure on which carriage and content services are provided to the public and hold a carrier licence;
• CSPs – entities that have direct contact with consumers and use carriage services to supply phone and/or internet services to the public; and
• content service providers – who supply content services to the public.

The ACMA issue carrier licences to carriers that require carrier licences to install and/or maintain telecommunications infrastructure for supply to the public.

2.6        Please summarise the main requirements of your jurisdiction’s general authorisation.

An entity wishing to become a carrier must apply for an individual carrier licence (or otherwise complete a nominated carrier declaration).  The application requirements are:

• the applicant must be a corporation, eligible partnership or a public body;
• the application must be made in writing in the form approved by the ACMA; and
• any applicable fee must be paid (including any annual carrier licence charges).

Defence and intelligence operations, transport authorities, broadcasters and electricity supply bodies under the Telecommunications Act are exempt from requiring a carrier licence.  The ACMA may refuse to grant a carrier licence to an applicant under certain circumstances, including if the applicant is disqualified (e.g., failure to pay any applicable charges), and must not grant a carrier licence if it is deemed to be prejudicial to security and/or as directed by the Attorney-General.  CSPs and content providers are not required to be licensed, but are still subject to the Telecommunications Act.

2.7        In relation to individual authorisations, please identify their subject matter, duration and ability to be transferred or traded.  Are there restrictions on the change of control of the licensee?

Carrier licences (as described above in question 2.6) may be cancelled by the ACMA or surrendered by the carrier licence holder through written notice to the ACMA.  There are no express prohibitions for the transfer of carrier licences, a carrier may apply to the ACMA for a nominated carrier declaration, allowing the owner(s) of one or more network units to nominate a carrier to supply carriage services.

2.8        Are there any particular licences or other requirements (for example, in relation to emergency services) in relation to VoIP services?

VoIP providers in Australia do not require any licences to operate, but they are regulated by the ACMA under the Telecommunications Act and the TCPSS Act.

VoIP providers are included in the definition of CSPs.  Accordingly, under the Telecommunications (Emergency Call Service) Determination 2019, VoIP providers have obligations to provide access to emergency services if they provide a STS (which most VoIP providers do).

2.9        Are there specific legal or administrative provisions dealing with access and/or securing or enforcing rights to public and private land in order to install telecommunications infrastructure?

The Telecommunications Act and Telecommunications Code of Practice guide the way in which telecommunication infrastructure is installed, inspected and maintained, and balances the needs of carriers with the rights of landowners, occupiers and residents on public and private land.

The Act allows carriers to install ‘low-impact facilities’ on land without seeking approvals from local, state or territory governments, and in some cases, without landowner consent.  Carriers may be required to pay an amount for any financial loss or damage to the landowners caused by the carriers when entering and inspecting the land or installing or maintaining a low-impact facility.

When installing large telecommunications infrastructure, carriers usually need to obtain local-council planning permission, as well as follow the relevant state and territory planning laws.

Further, the Telecommunications Code of Practice 2021 requires carriers to notify affected landowners of intended activities, provide an opportunity to object on certain grounds, and provide installation certificates to verify safe installation of ‘certifiable facilities’.

2.10      How is wholesale interconnection and access mandated?  How are wholesale interconnection or access disputes resolved?

Carrier licences in Australia require carriers to provide connectivity between all carrier networks.  Networks built after 1 January 2021 with download speeds over 25Mbps must operate on an open-access, wholesale-only, and non-discriminatory basis.

The ACCC can declare a carriage service to promote competition and connectivity, requiring carriers and CSPs to make declared services available to access seekers and provide equivalent service quality and billing information.  Access to telecommunications services requires ACCC declaration or acceptance of a special access undertaking (SAU).  A SAU or access agreement (for NBN Co) may be submitted to the ACCC, setting out the terms and conditions of providing access to an access seeker.  SAUs are subject to acceptance by the ACCC.

Interconnection or access disputes are resolved through ACCC determinations or ministerial pricing determinations.

2.11      Which operators are required to publish their standard interconnection contracts and/or prices?

NBN Co, NBN Tasmania Limited, NBN Co Spectrum Pty Ltd, and any companies over which NBN Co can exercise control, must publish a standard access agreement or provide an access undertaking to the ACCC for certain services.

Other telecommunication service providers must provide certain information about the services, and any standard form contracts free of charge to consumers in accordance with the TCP Code.

2.12      Looking at fixed, mobile and other services, are charges for interconnection (e.g. switched services) and/or network access (e.g. wholesale leased lines) subject to price or cost regulation and, if so, how?

The ACCC can set default ‘up front’ price terms and issue access determinations.  To the extent of inconsistency, access agreements will prevail over both access determinations and SAUs.

2.13      Are any operators subject to: (a) accounting separation; (b) functional separation; and/or (c) legal separation?

Telstra is subject to a Structural Separation Undertaking, which commenced on 6 March 2012, in relation to involvement in the deployment of the NBN network, which Telstra undertakes to:

• progressively migrate its fixed-line voice and broadband customers onto the wholesale NBN network; and
• promote equivalence and transparency, and ensure that wholesale customers gain access to key input services during the transition from Telstra’s copper and HFC networks to the NBN network.

Operators of superfast carriage networks built, upgraded, altered or extended to residential and small business users after 1 January 2011 must offer services on a wholesale-only basis (see question 2.9 above), which imposes structural separation on providers who also offer retail services.

The ACCC can make record-keeping rules for accounting separation; however, none are in existence after the revocation of the Telstra Accounting Separation Record Keeping Rules in 2014.

Additionally, on 7 April 2022, TPG’s joint functional separation undertaking was accepted by ACCC and came into force on 7 October 2022.

2.14      Describe the regulation applicable to high-speed broadband networks.  On what terms are passive infrastructure (ducts and poles), copper networks, cable TV and/or fibre networks required to be made available?  Are there any incentives or ‘regulatory holidays’?

NBN Co was established with a wholesale-only, open access mandate (subject to certain exceptions) and the terms and conditions around its access are currently regulated by the ACCC.

Regarding passive infrastructure sharing, carriers are required to provide access to their passive infrastructure to other carriers on request under the Facilities Access Code.  Certain developers are also required to install certain fixed-line facilities and provide access to carriers, to support telecommunications rollout in new developments.

While there are no such ‘regulatory holidays’, small providers of some high-speed internet services (supplying less than 12,000 customers) are not regulated under the same regime.

2.15      Are retail price controls imposed on any operator in relation to fixed, mobile, or other services?

The ACCC may set price and non-price terms and conditions of access to declared services, including by setting a maximum price.  The ACCC may require telecommunication service providers to adhere to established access pricing principles.

The Minister for Communications may also make price control determinations for specific carriers (such as the retail price controls imposed on provider Telstra, which was subsequently repealed in 2015).

2.16      Is the provision of electronic communications services to consumers subject to any special rules (such as universal service) and if so, in what principal respects?

Registered industry codes maintained by the ACMA set out certain minimum standards and requirements in relation to the advertising of services, billing practice and information, credit management practice, transfer of telecommunications services between providers, the complaint handling process and privacy.  For example, telecommunication service providers are required to provide Critical Information Summaries for products and services it provides to consumers.

The ACMA also sets out procedures for transferring (porting) telephone numbers between providers and enabling consumers to choose a preferred provider for pre-selectable services.

2.17      How are telephone numbers and network identifying codes allocated and by whom?

The ACMA makes the Numbering Plan under the Telecommunications Act, setting out the framework for the numbering of, and use of numbers in connection with the supply of, carriage services in Australia.  The Numbering Plan sets out the framework for the numbering of carriage services in Australia and how these numbers are used.  It governs the rules for the allocation, transfer, surrender, portability and use of different types of numbers in connection with the supply of carriage services in Australia.

The ACMA allocates telephone numbers to providers, and they issue telephone numbers to their customers, who then become the ‘Rights of Use’ (ROU) holder for that number.  The customer ROU is only retained while the number is connected to an active service.

2.18      Are there any special rules which govern the use of telephone numbers?

The Numbering Plan sets out rules including:

• the numbers for public and non-public use;
• the specification of and restrictions on the use of certain types of numbers;
• the requirement for carriers or CSPs to implement number portability; and
• rates chargeable on types of numbers.

Industry codes by the Communications Alliance set out additional requirements and procedures that govern the use of telephone numbers.

2.19      Are there any special rules relating to dynamic calling line identification presentation?

Dynamic calling line identification presentation is legal under the Telecommunications Act, unless it is done for an unlawful or malicious purpose, most commonly to conduct scams or ID spoofing.

2.20      Are there any obligations requiring number portability?

The ACCC requires that all local, mobile and freephone and local rate services be portable – enabling a customer to change provider and keep their number.

The Mobile Number Portability Industry Code (C570:2009) incorporating amendment No.1/2015 outlines procedures for porting a mobile number and covers speed of portability between telecommunication service providers and includes obligations on carriers to ensure the number is ported within certain timeframes.

3.1        What authority regulates spectrum use?

In Australia, the ACMA is the regulatory authority responsible for managing the radiofrequency spectrum.  The ACMA oversees the planning, allocation, licensing and regulation of the spectrum to ensure its efficient and effective use.

3.2        How is the use of radio spectrum authorised in your jurisdiction?  What procedures are used to allocate spectrum between candidates – i.e. spectrum auctions, comparative ‘beauty parades’, etc.?

The specific process and requirements depend on the type of service, device or system involved.  The process for obtaining authorisation involves the following steps:

• Spectrum planning: the ACMA develops a spectrum plan that outlines the allocation of frequency bands for various services and applications.
• Licensing: to use specific portions of the radio spectrum, individuals or organisations may be required to obtain a licence, including:

  • apparatus licences (authorising the use of specific frequencies for radio communication devices);
  • spectrum licences (the right to use a specific frequency band within a defined geographic area).  Spectrum licences are typically awarded through a competitive process, such as an auction; and
  • class licences (cover a wide range of low-powered devices and services that operate within specific frequency bands).

• Frequency assignment: depending on the type of licence, the ACMA assigns specific frequencies or frequency bands to the licensee.
• Licence conditions: licensees must comply with various conditions, including technical standards, operational requirements and payment of licence fees.
• Spectrum sharing and coordination: in some cases, the ACMA may facilitate spectrum sharing arrangements or coordinate the use of spectrum with other countries.

There are procedures used to allocate spectrum, including:

• Spectrum auctions: interested parties bid on the rights to use specific frequency bands within defined geographic areas.
• Comparative ‘beauty parades’: these involve evaluating competing applications based on specific criteria, such as technical and financial capabilities, proposed services and public interest benefits.
• Administrative allocation: in some cases, the ACMA may directly allocate spectrum licences to applicants.
• First-come, first-served basis: for apparatus licences, the ACMA may allocate spectrum on a first-come, first-served basis (subject to meeting minimum criteria).
• Pre-defined rules for class licences: certain low-powered devices and services are covered by class licences, which do not require individual applications or allocations.

3.3        Can the use of spectrum be made licence-exempt?  If so, under what conditions?  Are there penalties for the unauthorised use of spectrum?  If so, what are they?

In Australia, the use of certain portions of the radio spectrum can be made licence-exempt through class licences.  The ACMA creates class licences that cover a wide range of low-powered devices and services operating within specific frequency bands and technical parameters.

Users of these licence-exempt devices and services do not need to apply for an individual licence.  However, users must comply with the technical and operational requirements outlined in the relevant class licence to avoid causing interference to other licensed spectrum users.

Penalties for unauthorised spectrum use can include:

• infringement notices;
• court-imposed penalties (fines);
• equipment seizure;
• licence cancellation or suspension; and
• remedial directions.

3.4        If licence or other authorisation fees are payable for the use of radio frequency spectrum, how are these applied and calculated?

In Australia, licence or other authorisation fees are payable for the use of radio frequency spectrum and these fees are applied and calculated by the ACMA.  The fees are intended to cover the cost of managing and regulating the radio frequency spectrum and can vary depending on the type of licence, frequency band, geographical area and other factors.

• Apparatus licences: fees for apparatus licences are generally calculated based on a combination of factors, including the frequency band, geographical location and the type of service provided.
• Spectrum licences: fees for spectrum licences are generally determined through a competitive process, such as an auction or a ‘beauty parade’ (mentioned above).  The winning bidder or applicant is required to pay the licence fee, which is often a one-time payment for the duration of the licence (usually 15 years) and/or an annual spectrum access charge, calculated based on factors such as the population density and the amount of spectrum being used.
• Class licences: there are no fees associated with class licences.
• Licence renewal and variation fees: if a licensee wishes to renew or vary their licence, they may be required to pay a renewal or variation fee.

3.5        What happens to spectrum licences if there is a change of control of the licensee?

If there is a change of control of a spectrum licensee, the licensee must inform the ACMA about the change (within 30 days of becoming aware of a change of control).

Upon receiving notification, the ACMA reviews the new ownership structure to ensure that the licensee continues to meet the eligibility criteria and licence conditions.  The ACMA may also assess whether the change of control has any implications for competition or the public interest.

3.6        Are spectrum licences able to be assigned, traded or sub-licensed and, if so, on what conditions?

Spectrum licences can be assigned, traded or sub-licensed, subject to certain conditions and the approval of the ACMA.

The ability to assign, trade or sub-license spectrum licences may not apply to all types of licences, such as apparatus licences or class licences.  The specific conditions and requirements for these licences may vary and should be referred to in the relevant legislation or licence documentation.

4.1        Describe the legal framework for cybersecurity.  Are there any specific requirements in relation to telecoms operators?

The legal framework for cybersecurity in Australia consists of federal and state laws, regulations and policies.  Key components include: the Criminal Code Act 1995 (Cth), which establishes internet-based offences; the Privacy Act 1988 (Cth), regulating personal information handling; the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth), introducing a mandatory notification scheme for data breaches; the Telecommunications Act and the TIA Act, governing telecommunications carriers and lawful interception of communications; and the Assistance and Access Act 2018 (Encryption Act) (Cth), allowing authorities to access encrypted communications.  Additionally, the Cyber Security Strategy outlines Australia’s approach to enhancing cybersecurity, and various state and territory laws address cybercrimes and enforcement powers.

The Security of Critical Infrastructure Act 2018 (Cth) was amended in December 2021, providing specific requirements for carriers and CSPs, including:

• reporting to the Australian Cyber Security Centre of the Australian Signals Directorate if a cybersecurity incident has a relevant impact on a critical infrastructure asset; and
• providing the Cyber and Infrastructure Security Centre of the DHA certain information about critical infrastructure assets so it can be included in a register.

It is likely that further cybersecurity mechanisms will be introduced to safeguard information held by telecommunication providers following a cyber-attack on one of Australia’s largest telecommunication providers in September 2022.

4.2        Describe the legal framework (including listing relevant legislation) which governs the ability of the state (police, security services, etc.) to obtain access to private communications.

The key legislation relevant to the ability of the state to access and intercept private communications are the:

• TIA Act, which protects the privacy of Australians by prohibiting interception of communications and access to stored communications;
• Telecommunications Act, which requires that carriers and CSPs provide assistance to relevant agencies for the purposes of law enforcement and national security;
• Surveillance Devices Act 2004 (Cth) (SD Act), which governs the use of surveillance devices by enforcement agencies; under the SD Act, an eligible enforcement agency can apply for a warrant to use a surveillance device to investigate a relevant offence;
• Australian Security Intelligence Organisation Act 1979 (Cth), which provides the Australian Security Intelligence Organisation with various powers, including the ability to obtain computer access warrants and surveillance device warrants;
• Crimes Legislation, which include various search and information-gathering powers for law enforcement officers, including the ability to access data held in a computer or other data storage device; and
• Encryption Act, which allows intelligence agencies and law enforcement to issue specific notices and requests to ‘designated communication providers’ requiring them to provide access to end-to-end encrypted communications.

4.3        Summarise the rules which require market participants to maintain call interception (wire-tap) capabilities.  Does this cover: (i) traditional telephone calls; (ii) VoIP calls; (iii) emails; and (iv) any other forms of communications?

The Telecommunications Act requires carriers and CSPs (which include ISPs and VoIP service providers) to ensure that their networks are capable of interception by specific authorities and to prepare annual interception capability plans.

There is an ongoing obligation to disclose to the ACMA any technological changes that would have an adverse material impact on their abilities to fulfil these obligations.

These interception capabilities are mandated with respect to ‘communications’ – broadly defined to include traditional telephone calls, VoIP calls and emails, as well as various other forms of communications.

4.4        How does the state intercept communications for a particular individual?

If a state authority wishes to intercept communications for a particular individual, it must first obtain a warrant from a court or tribunal.  Such warrant must specify the restrictions imposed, such as the time the warrant is in force.

A warrant in respect of a telecommunications service may be issued if the judge or nominated AAT member is satisfied that there are reasonable grounds for suspecting that a particular person is using, or is likely to use, the service and information that would likely be obtained by intercepting under a warrant communications made to or from the service that would likely assist with the investigation by the law enforcement authority of a serious offence(s).

In some limited circumstances, such as emergencies, a warrant is not required.

4.5        Describe the rules governing the use of encryption and the circumstances when encryption keys need to be provided to the state.

Australia’s Telecommunications and Other Legislation Amendment (Assistance and Access) Act 2018 (Cth) grants authorities certain powers regarding encryption.  This Act allows law enforcement and security agencies to compel technology companies and service providers to assist in decrypting communications or provide access to encrypted data.

Designated authorities can issue Technical Assistance Requests or Technical Assistance Notices to request or compel assistance from technology companies.  In cases where cooperation is not voluntary, a Technical Capability Notice can be issued, compelling a company to build a capability to assist in decrypting communications.

Regarding encryption keys, the Act allows authorities to request assistance from a designated communications provider in providing access to encrypted information.  This could include providing necessary information or assistance to decrypt data.

4.6        Are there any specific cybersecurity requirements on telecoms, cloud providers or social media platforms?  (If so, please list the relevant legislation.)

As outlined in question 4.1 above, the relevant cybersecurity requirements imposed on telecommunication providers will be dependent on the provider and the service it is providing; the legislation most likely to impact telecommunication providers and social media platforms are the Telecommunications Act, the TIA, the SOCI Act, the Criminal Code Act 1995 (Cth) and the Online Safety Act 2021 (Cth).

4.7        What data are telecoms or internet infrastructure operators obliged to retain and for how long?

Carriers and ISPs are required to record and store the following information about a communication:

• the subscriber of, and accounts, services, telecommunications devices and other relevant services relating to, the relevant service;
• the source and destination of a communication;
• the date, time and duration of a communication; and
• the type of communication and relevant service used,

for a minimum of two years.  Authorised agencies do not require a warrant to access this information.

The TIA Act also establishes a system of preserving certain stored communications held by a carrier.  These must be retained for as long as an authority-issued preservation order specifies.

The ACCC (through the Internet Activity Record Keeping Rule) requires biannual collection and analysis of internet activity data following the discontinuation of the Australian Bureau of Statistics Internet Activity survey.

5.1        How is the distribution of audio-visual media regulated in your jurisdiction?

In Australia, there is a broad regulatory framework that covers the distribution of audio-visual media.  This includes a combination of various Government legislation, regulatory bodies and industry codes of practice.

The key regulator for the distribution of audio-visual media is the ACMA and is responsible for the:

• regulation of broadcasting, internet, radiocommunications and telecommunications;
• allocating, administering and enforcing broadcasting licences;
• administering cross-media ownership and control restrictions;
• overseeing the compliance of content providers with the relevant legislation, codes and standards; and
• drafting and enacting industry standards and codes.

The BSA sets out the regulatory framework for broadcasting services in Australia, in particular broadcasting licences, content standards, ownership restrictions and the National Classification Scheme.

Beyond the BSA, the Copyright Act 1968 (Cth) (Copyright Act) provides protection for creators and owners of audio-visual works, ensuring that their rights are respected and are fairly compensated for the use of their content.  The CCA, which is administered by the ACCC, broadly covers the fair trading and competition in Australia, through the provision of consumer protections.

5.2       Is content regulation (including advertising, as well as editorial) different for content broadcast via traditional distribution platforms as opposed to content delivered over the internet or other platforms?  Please describe the main differences.

Content regulation for the internet and other platforms is generally less strict and prescriptive due to the varying ways content can be distributed on the internet.  The Australian Government recently introduced new legislation and codes to regulate online content which include:

• The creation of eSafety under the Online Safety Act 2021 (Cth), which sets a clear set of expectations for online service providers that makes them accountable for the safety of people who use their services.  The Act also requires the industry to develop new codes to regulate illegal and restricted content.
• Updates to Schedules 5 and 7 of the BSA, introducing the Online Content Scheme, which is designed to protect consumers from harmful material.  The Scheme applies to content accessed through the internet, mobile phones and convergent devices, and applies to content delivered through emerging content services, such as subscription-based internet portals, chat rooms, live audio-visual streaming and link services.  It prohibits the distribution of content that has been classified or is likely to be classified with age restrictions.

The Australian Association of National Advertisers Code of Ethics is a self-regulatory code that applies to advertising across all media platforms, including the internet.  It provides guidelines for responsible advertising, ensuring that advertisements are legal, decent, honest and truthful.

5.3        Describe the different types of licences for the distribution of audio-visual media and their key obligations.

Licences are provided by the ACMA under the BSA; key licences that are granted for the distribution of audio-visual media include:

• commercial television broadcasting licences;
• community broadcasting licences;
• subscription television broadcasting licences;
• international broadcasting licences;
• datacasting licences; and
• open and subscription narrow-casting licences.

Key obligations for these licences include, complying with all requirements under the BSA, adhering to the relevant industry codes of practice, advertising restrictions, restriction of media that has been classified and minimum local content quotas.

Additionally, the ACMA may write further licence conditions for any of the above licences.

The BSA includes various ownership limitations which act in conjunction with the licence conditions, including that:

• a person cannot control commercial television broadcasting licences reaching more than 75% of the Australian population;
• a person cannot control a commercial television licence, a commercial radio licence and an associated newspaper licence in one commercial licence area;
• a person cannot have control of more than one commercial television broadcasting licence in a licence area;
• a person cannot have control of more than two radio broadcasting licences in a single radio licence area; and
• media acquisitions that would result in less than five independent media operations in a metropolitan commercial licence area, or four in a regional licence area, are prevented.

5.4        Are licences assignable?  If not, what rules apply?  Are there restrictions on change of control of the licensee?

Commercial broadcasting and subscription television broadcasting licences are assignable, while international broadcasting licences are not assignable.

Datacasting and community broadcasting licences are assignable to other entities that meet the licensing requirements and subject to approval of the ACMA.

6.1        How have the courts interpreted and applied any defences (e.g. ‘mere conduit’ or ‘common carrier’) available to protect telecommunications operators and/or internet service providers from liability for content carried over their networks?

ISPs that supply services to the public are covered by safe harbour provisions in the Copyright Act.  These are similar to the defences of ‘mere conduit’ or ‘common carrier’.  There are four categories that are covered by these provisions:

• acting as a conduit for internet activities by providing facilities for transmitting, routing or providing connections for copyright material;
• caching through an automatic process;
• storing copyright material on their systems or networks; and
• referring users to an online location.

The High Court of Australia held in Roadshow Films Pty Ltd v iiNet Limited [2012] HCA 16 that iiNet was not liable for authorising its customers for infringement of copyrighted films downloaded over BitTorrent.  The High Court held that iiNet had no direct power to prevent the infringement and that it did not authorise the infringement by its subscribers.

6.2        Are telecommunications operators and/or internet service providers under any obligations (i.e. to provide information, inform customers, disconnect customers) to assist content owners whose rights may be infringed by means of file-sharing or other activities?

Under s115A of the Copyright Act, a party can seek an injunction from the Federal Court requiring CSPs and online search engine providers to block and disable access to websites and locations outside of Australia.  The party seeking the injunction must prove that the online location or search result:

• infringes, or facilitates an infringement, of the copyright; and
• has the primary purpose or the primary effect of infringing, or facilitating an infringement, of copyright (whether or not in Australia).

The Court may make injections that require online search engine providers and CSPs to take reasonable steps to block or not provide search results that include certain domain names, URLs and IP addresses that provide access to the online location that had originally been blocked by an injunction.

These injections have been successfully applied for and granted with their introduction in 2018, with them being granted as recently as September 2023 in Roadshow Films Pty Limited v Telstra Corporation Limited (Extension of Orders) [2023] FCA 1167.

6.3        Are there any ‘net neutrality’ requirements?  Are telecommunications operators and/or internet service providers able to differentially charge and/or block different types of traffic over their networks?

While there are no specific net neutrality requirements in Australia, the existing competition and consumer protection laws, overseen by the ACCC, work to support a fair and competitive market, preventing ISPs and telecommunications operators from engaging in anti-competitive or harmful network management practices.

6.4        Are telecommunications operators and/or internet service providers under any obligations to block access to certain sites or content?  Are consumer VPN services regulated or blocked?

Powers exist under the Online Safety Act 2001 (Cth) (see question 6.5) and parties can seek injunctions from the Federal Court (see question 6.2) to block access to certain sites or content.

Furthermore, the Australian Government or Agencies can direct an ISP to block access to certain sites to disrupt the operation of illegal online services. 

6.5        Is there any regulation applicable to companies that act as ‘intermediaries’ or ‘platforms’ in their role of connecting consumers with goods, services, content, or are there any proposals for such regulation?  Include any proposals or legislation regulating social media platforms in relation to online content or safety.

The Australian Government has introduced the Online Safety Act 2001 (Cth), which puts responsibility on online service providers to ensure that users are safe while using their services.  It addresses cyberbullying, non-consensual sharing of intimate images, and access to harmful material.  In 2023, the eSafety Commissioner published Online Safety Codes for five different sectors being Social Media Services, App Distribution Services, Hosting Services, Internet Carriage Services and Equipment providers.  Compliance with these codes is to begin on 16 December 2023.

The eSafety Commissioner also issued an enforcement action against a number of social media companies for failing to adequately supply information when requested.

This chapter has been written by a member of ICLG’s international panel of experts,
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