ACMA's cybersecurity functions should be passed to AGD: Comms Dept

'Urgent reform' is needed to modernise the ACMA, overhaul its legislation, and reform the regulatory regime in order to keep up with the changing communications landscape, the government's review has said.

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(Image: Screenshot by Corinne Reichert/ZDNet)

The Australian Communications and Media Authority (ACMA) must be modernised to deal with an increasingly digitised and connected society, the Department of Communications has recommended, while simultaneously saying that its cybersecurity functions should be handed over to the Attorney-General's Department (AGD).

The ACMA's cybersecurity functions -- such as enforcing anti-spam legislation and investigating complaints about online content and gambling -- along with its staff and funding would be transferred to the AGD in order to be integrated with the Australian Cyber Security Centre (ACSC) under the department's recommendation.

"The review has considered the programs against the broad parameters of the Contestability Program and considers there is scope to increase the effectiveness of these initiatives by linking them more closely with Commonwealth government initiatives with similar objectives," the Department of Communications' Review of the Australian Communications and Media Authority: Final Report, completed in October 2016 and published on Monday, said.

"The review considers the existing resources of the ACMA devoted to cybersecurity would be best transferred to the Attorney-General's Department to be collocated within the ACSC. This is more likely to contribute to a coordinated Commonwealth outreach strategy and clear messaging on cybersecurity awareness.

"In addition, it may lead to better reporting of cybersecurity risks."

Such a move would additionally fulfil the government's commitment to improve coordination and information sharing under its Cyber Security Strategy, the department noted, with the ACMA also currently running "cybersecurity outreach" programs such as the Australian Internet Security Initiative (AISI), and sending out phishing alerts and a cybersecurity news e-bulletin along with running the spam and cybersecurity public awareness website.

"The ACMA already supplies data from the AISI daily to the AFP to support cybercrime investigations," the department explained.

"It also supplies AISI data to the ACC, which drew heavily on this resource in the first Australian Cyber Security Centre Threat Report, published in July 2015. Transfer of these cybersecurity programs to the ACSC would allow them to be integrated with other relevant Australian government cybersecurity initiatives to enhance their effectiveness in protecting consumers and business from cyber threats."

The review into the ACMA, announced by Prime Minister Malcolm Turnbull during his tenure as communications minister back in 2015, was undertaken due to the recognition that the Australian telecommunications industry is "barely recognisable" from what it was when the ACMA was formed in 2005.

These "radical changes" occurred due to the widespread availability of high-speed mobile and fixed-line broadband, as well as through "new and disruptive services", the virtualisation of physical telecommunications infrastructure, and increasingly sophisticated consumer devices, the department said.

While finding that the ACMA has been able to fulfil its regulatory function, the department said these changes mean further clarity and cohesion must be given to its remit, responsibilities, and overall role -- especially in regards to overlap between the agency and the government.

The government should provide the ACMA with clearer policy guidelines, the recommendations said.

"There is a lack of clarity as to decisions which are best made by the regulator and those which are policy decisions for the government, particularly in areas that are increasingly contested such as spectrum allocation," the department said.

"These have made the ACMA's job increasingly difficult in making regulatory judgements and the allocation of its resources, resulting in some frustration for the regulator and the industry."

The ACMA must be able to act quickly and decisively, the department argued, especially due to the influx of Internet of Things (IoT) and machine-to-machine devices coming in, which will need spectrum allocations dealt with more efficiently by giving the regulator a more defined and certain set of obligations.

"The increasing demand for mobile devices (including from the device-to-device nature of the 'Internet of Things') means spectrum allocation decisions are becoming more contentious, as pressure to meet new spectrum uses must be balanced with reallocation demands from existing users," the review said.

"As demand for spectrum grows, so too does the risk of interference to licensed services. Furthermore, management of spectrum by regulators and service providers is made increasingly difficult, particularly given the increasing scarcity of the spectrum resource as demand growth accelerates."

The recommendations also stated that the communications minister should provide the ACMA with an annual statement on expectations, with the ACMA to publish a statement of intent in response; the ACMA should improve its "timeliness and transparency" through a reporting process; any international spectrum delegations should be led by the Department of Communications; the ACMA should look into whether the industry could self-regulate technical standards, the Public Number Database, the Do Not Call Register, and spam; and the government should question whether the ATO could take over the ACMA's revenue collection functions.

The department further detailed that the ACMA's remit should cover all parts of communications, including infrastructure, transport, devices, applications, and content; functions should be changed to improve efficiency; cross-appointment arrangements between the ACMA and the Australian Competition and Consumer Commission (ACCC) should be strengthened; the skills within the ACMA's members should be described under legislation, with more full-time members; the ACMA Act should be changed to allow the ACMA to establish sub-boards of experts to provide advice; the ACMA should analyse its cost base; the ACMA's remit should include the functions of the Classification Board; and the ACMA should handle all complaints and investigations into online gambling, including enforcing civil penalties.

The department said the government should additionally review the process by which revenue is collected from the communications industry, and look into streaming services and whether these "new business models and OTT services are contributing appropriately".

The department also made far-reaching comments about the burden a heavy regulatory regime itself imposes on society, saying the government should conduct a coordinated program of overall regulatory reform to improve the system.

"Modernising the regulator alone is not sufficient for an industry as vital as communications," the department said.

"The ageing regulatory regime maintains a distinction in many areas between technologies which no longer exist and places excessive emphasis on traditional sectors to achieve public policy outcomes. This distorts investment decisions and the incentives to innovate for local businesses, especially when faced with increasing competition from overseas-based OTT services.

"The extensive, highly detailed legislative regime also imposes significant process requirements on the regulator, with limited and often ineffective enforcement tools. This can constrain the ACMA's ability to move faster, be more agile and responsive."

The government must therefore "build a contemporary framework for the regulation of the rapidly changing communications sector with the objective of supporting the sector in its ambitions, while delivering on social and economic objectives to the benefit of all Australians", the department said.

The Communications Alliance welcomed the review, saying the government should implement the recommendations quickly.

"Moves to strengthen the authority through more full-time members, provide for the deputy chair to take on more of a CEO-like role, set clearer objectives for the regulator, and press for greater self-regulation are all positive steps," Comms Alliance CEO John Stanton said.

"But government should move expeditiously to put new arrangements in place, given the long period of organisational 'limbo' within which the ACMA has had to operate."

Meanwhile, Shadow Communications Minister Michelle Rowland questioned why it took two years for the review to occur considering the review itself promotes timeliness.

While Labor welcomed the parts of the review criticising the current approach taken by the government, the opposition party said the proposal that the Department of Communications head up any international spectrum policy delegations is "one example that illustrates the government's ongoing confusion about institutional responsibilities and capabilities in spectrum management".

"What is needed is an expert and properly resourced regulator; however, the 2017-18 Budget made no provision for preparatory work for spectrum review implementation by the ACMA. Without proper funding, spectrum reform may suffer in terms of quality and speed," Rowland said.

Rowland last week similarly said that the ACMA must be properly resourced in order to carry out the spectrum reform agenda, while pointing towards the lack of preparatory work mentioned in the 2017-18 Federal Budget.

The Australian government unveiled its partial draft Radiocommunications Bill 2017 alongside a consultation package on the proposed legislation, spectrum pricing, and Commonwealth spectrum holdings on Thursday after announcing plans to do so back in 2015.

"Ultimately, the ACMA will be responsible for the important and monumental task of designing and developing new spectrum management arrangements," Rowland said on Friday.

"It is concerning that the regulator is expected to prepare for this change on the smell of an oily rag."

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