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1996
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
RADIOCOMMUNICATIONS
AMENDMENT BILL 1996
EXPLANATORY
MEMORANDUM
(Circulated
by authority of Senator the Hon. Richard Alston, Minister for Communications and
the Arts)
79455 Cat. No. 96 5394 5 ISBN 0644
479574
RADIOCOMMUNICATIONS AMENDMENT BILL
1996
OUTLINE
This Bill amends the Radiocommunications Act 1992 (the Principal
Act) to prepare for changes to the regulation of telecommunications in Australia
provided for in the Telecommunications Bill 1996 and related Bills. It
also makes various minor policy changes to improve the mechanisms for management
of the radiofrequency spectrum.
The amendments in Schedule 1 of the Bill
will:
1. provide a mechanism for the price-based allocation of encumbered
radiofrequency spectrum and the later clearance of incumbents (items 1, 4-7,
9-17, 19-22, 24, 33, 41 and 43-46);
2. apply rules in the Trade
Practices Act 1974 (TPA) that relate to anti-competitive acquisitions to the
issuing of radiocommunications licences and to third party authorisations under
those licences (items 2, 18, 25, 28-31, 38 and 42);
3. enable the
Minister to set limits for the acquisition of spectrum or licences in
price-based allocation processes (items 21, 35-37, 92 and 93);
4. extend
the maximum period for spectrum licences from 10 to 15 years (item
23);
5. support the Spectrum Management Authority’s standards
making power so that it encompasses, within the limits of Commonwealth
constitutional power, a range of devices capable of causing, or being affected
by, electromagnetic interference (items 3, 50-63, 66-71 and
80-82);
6. extend the radiocommunications standards making power to allow
the setting of health and safety standards to protect people from the operation
of radiocommunications devices (items 47, 63-65 and 83);
7. remove
provisions for technical licence specifications as these have been found to be
an unnecessary regulatory mechanism (items 8, 26, 27, 39, 40, 48, 49, 72-79,
86, 87 and 90); and
8. other minor technical amendments (items 32, 34,
84, 85, 88, 89, 91 and 94).
The Schedule 1 amendments primarily have the
objective of making available spectrum for telecommunications services, in
particular for mobile services but also for radiocommunications customer access
networks (also known as wireless local loop systems). These technologies will
be very important for the introduction of further competition in the provision
of telephone services, both in the mobile market itself and in competition with
fixed-line services. To meet the future demand for mobile services and other
telecommunications uses of radiofrequency spectrum and to facilitate the
development of competition in the post 1 July 1997 telecommunications
environment, it is necessary to be able to make additional spectrum available as
soon as possible. The amendments allow this to be achieved by enabling spectrum
to be planned and allocated before current users are cleared. These users can
be cleared later as new networks are established.
Access to spectrum is
becoming a major competitive factor in telecommunications so the amendments will
ensure that the anti-competitive acquisition rules in the TPA are applied to the
allocation and issue of licences for the spectrum, in the same way as they
currently apply to the trading in those licences. Third party authorisations
are another important means of gaining access to spectrum and the amendments
will also apply the relevant rules to these authorisations.
To provide
opportunities for the growth of competition beyond those which might flow from
the application of the TPA, the amendments provide a Ministerial power to set
ownership limits on spectrum or licences allocated to any person or a specified
person as part of a particular price-based allocation of radiocommunications
licences. Such limits would only apply to the issue of licences; after issue,
the TPA alone would apply.
FINANCIAL IMPACT STATEMENT
These amendments would not of themselves directly affect resource
requirements of the SMA. They are also not expected to significantly affect the
amount of revenue to be derived from the allocation of spectrum, although by
enabling the allocation of spectrum while encumbered they should bring forward
the time at which such revenue is received from when it would otherwise have
been received.
NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the Act
to be cited as the Radiocommunications Amendment Act
1996.
Clause 2 - Commencement
This clause provides for
the commencement of the Act. The Act, including Schedule 1, commences on the
day the Act receives the Royal Assent. The early commencement of Schedule 1
will enable the allocation of spectrum for telecommunications services to
proceed without delay.
Clause 3 - Schedule(s)
Clause 3
provides for the Radiocommunications Act 1992 (the Principal Act) to be
amended as provided for in the Schedules.
SCHEDULE 1 - AMENDMENTS
Radiocommunications Act 1992
Item 1 - After
paragraph 4(c)
Section 4 of the Principal Act provides an outline of
the Act as a reading guide. This item inserts a new paragraph 4(ca) to reflect
the changes to Chapter 3 of the Principal Act, relating to the re-allocation of
spectrum, made by other items of Schedule 1.
Item 2 - Section
5
Section 5 of the Principal Act defines terms used in the Act. This
item inserts in section 5 the new term ‘ACCC’ and defines it as the
Australian Competition and Consumer Commission. This new term is used in new
provisions inserted by items 21 and 35 relating to application of the TPA to
licence allocation, issue and third party authorisations.
Item 3 -
Section 5
Section 5 of the Principal Act defines terms used in the
Act. The SMA is currently implementing an electromagnetic compatibility (EMC)
regime to regulate interference between non-radiocommunications devices or
between a non-radiocommunications and a radiocommunications device. As part of
this regime, the SMA will need to make standards applying to a wide range of
electrical and electronic equipment. Items 50-63, 66-71 and 80-82 insert
provisions to support the SMA’s power to make such standards so that it
encompasses, within the limits of Commonwealth constitutional power, a range of
devices capable of causing, or being affected by, electromagnetic interference
for the purposes of the EMC regime (see the notes on those items for a
discussion of these powers).
This item inserts a new term into section 5,
‘EMC standard’, which is defined to mean a standard made solely for
the purpose of the EMC standards-making provisions: s.162(3)(b) or
s.162(3)(e).
Item 4 - Section 5 (definition of marketing
plan)
Section 5 of the Principal Act defines terms used in the
Act. This item makes a formal amendment to the definition of marketing
plan, consequential to amendments in other items of Schedule 1, to include a
reference to a marketing plan made under new section 39A (see the notes relating
to item 46 for a discussion of proposed new section 153M).
Item 5 -
Section 5
Section 5 of the Principal Act defines terms used in the
Act. This item inserts a new term ‘re-allocation deadline’ (and a
self-explanatory definition) into section 5. This new term is used in new
provisions inserted by item 46 relating to a new spectrum re-allocation
process.
Item 6 - Section 5
Section 5 of the Principal Act
defines terms used in the Act. This item inserts a new term ‘re-allocation
period’ (and a self-explanatory definition) into section 5. This new term
is used in new provisions inserted by items 43, 44 and 46 relating to a new
spectrum re-allocation process.
Item 7 - Section 5
Section
5 of the Principal Act defines terms used in the Act. This item inserts a new
term ‘spectrum re-allocation declaration’ (and a self-explanatory
definition) into section 5. This new term is used in new provisions inserted by
items 41 and 43-46 relating to a new spectrum re-allocation
process.
Item 8 - Section 5 (definition of technical licence
specification)
Section 5 of the Principal Act defines terms used
in the Act. All the provisions in the Principal Act relating to technical
licence specifications (TLSs) are to be removed as they are an unnecessary
regulatory mechanism. There has been some doubt about the appropriate head of
power for setting generic licence conditions relating to technical matters, that
is, whether it should be done by specifying TLSs, or by determining licence
conditions under paragraph 107(1)(g) of the Principal Act. It is considered
that the power under paragraph 107(1)(g) would be sufficient authority to impose
generic technical requirements on licensees. The SMA is converting all existing
TLSs into paragraph 107(1)(g) licence condition determinations.
This item
deletes the definition of ‘technical licence specification’ from
section 5.
Item 9 - At the end of subsection 29(3)
Section
29 of the Principal Act provides an outline of Chapter 2 of that Act as a
reading guide. This item inserts a new paragraph (c) into subsection 29(3) to
reflect the changes to Part 2.2 of the Principal Act, relating to the making of
marketing plans for spectrum that is subject to re-allocation, made by other
items of Schedule 1.
Item 10 - Subsection 36(2)
Section 36
of the Principal Act enables the Minister to designate parts of the spectrum to
be allocated by issuing spectrum licences. This item amends subsection 36(2) to
change a discretion, for a designation to specify the area, or areas, to which a
designation applies, into a requirement. This will assist in determining
whether a section 36 designation overlaps with a re-allocation declaration made
under new section 153B (see item 46). It is intended that an area specified in
a designation may be the whole of Australia or any part of
Australia.
Item 11 - At the end of section 36
This item
inserts 3 new subsections, (6), (7) and (8), into section 36 of the Principal
Act to provide for the situations where a section 36 designation and a related
marketing plan overlap with a re-allocation declaration under proposed new
section 153B (see item 46). An overlap can occur where both instruments cover
the same part of the spectrum and the same specified area in relation to that
spectrum (see new subsection (6) and paragraphs (7)(a), (b) and (c)).
New
subsection (6) provides that the Minister must not make a section 36 designation
that overlaps wholly or partly with a re-allocation declaration during the
re-allocation period.
New subsection (7) provides for a section 36
designation to cease to have effect where it overlaps with a re-allocation
declaration. The designation and related marketing plan cease to have effect at
the beginning of the re-allocation period, but only to the extent that they
overlap with the re-allocation declaration (paragraphs (d) and
(f)).
However, new subsection (8) provides that new subsection (7) does
not prevent an apparatus licensee from accepting an offer of a spectrum licence
under section 56 of the Principal Act (relating to the conversion of apparatus
licences to spectrum licences) where the offer was made before the beginning of
the re-allocation period referred to in subsection (7).
It should be
noted that where the SMA has already allocated a spectrum licence to a person
under subsection 62(1) of the Principal Act prior to the commencement of the
re-allocation period, the SMA will be able to issue that spectrum licence to the
person (see new section 153P under item 46).
Note also that should the
Minister revoke or vary a re-allocation declaration so that any overlap between
a section 36 designation and a re-allocation declaration is removed, the
revocation or variation will not have the effect of reviving any part of a
section 36 designation which previously overlapped with the declaration and had
therefore ceased to have effect.
Item 12 - Paragraph
38(1)(b)
Section 38 of the Principal Act deals with the preparation
of conversion plans. This item is consequential to the amendment at item 11 and
replaces paragraph 38(1)(b) with a new paragraph to require conversion plans to
specify the areas in which operation of radiocommunications devices would be
authorised by spectrum licences issued in accordance with the
plan.
Item 13 - Paragraph 39(1)(b)
Section 39 of the
Principal Act deals with the preparation of marketing plans. This item is
consequential to the amendment at item 11 and replaces paragraph 39(1)(b) with a
new paragraph to require marketing plans to specify the areas in which operation
of radiocommunications devices would be authorised by spectrum licences issued
under the plan.
Item 14 - After section 39
39A -
Marketing plans - re-allocation of spectrum
This item inserts a new
section 39A into the Principal Act to provide for the SMA to make a marketing
plan for issuing spectrum licences for spectrum and areas covered by a spectrum
re-allocation declaration under new section 153B (see item 46).
The
requirement to make a marketing plan under new section 39A (subsection (2)) will
only arise if a re-allocation declaration states that part of the spectrum
should be re-allocated through issuing spectrum licences (subsection
(1)).
The marketing plan may relate to the issue of spectrum licences
which do not apply to the whole of the area to which the declaration applies
(subsection (4)). The matters that may be indicated in a marketing plan include
the same matters that, under subsection 39(4), may be indicated under a
marketing plan made under section 39 of the Principal Act (subsection
(5)).
A marketing plan may also indicate the procedures that are to be
followed in issuing spectrum licences, for example, by a form of auction,
tender, or for a pre-determined or pre-negotiated price (subsection (7)). This
allows flexibility in setting the allocation procedures to take account of
different characteristics of different parts of the spectrum and consequent
differences in the market interest for the licences to be issued.
A
marketing plan must be consistent with the spectrum plan made under section 30
of the Principal Act, or any frequency band plan made under section 32 of the
Principal Act that relates to the same spectrum (subsection (8)).
Item
15 - Subsection 41(2)
This item provides for a cross-reference
amendment to subsection 41(2) of the Principal Act consequential to the
insertion of new section 39A under item 14.
Item 16 - After subsection
45(6)
Section 45 of the Principal Act provides an outline of Chapter
3 of the Act as a reading guide. This item inserts a new subsection (6A) into
section 45 to reflect the insertion of new Part 3.6 under item 46 relating to
the making of re-allocation declarations.
Item 17 - Paragraph
51(2)(b)
Section 51 of the Principal Act provides an outline of Part
3.2 of the Act as a reading guide. This item omits the reference to
‘unencumbered spectrum’ from paragraph 51(2)(b), to reflect
amendments made by other items of Schedule 1 relating to the re-allocation of
encumbered spectrum by issuing spectrum licences.
Item 18 - At the end
of subsection 51(2)
Section 51 of the Principal Act provides an
outline of Part 3.2 of the Act as a reading guide. This item inserts a new
paragraph (d) into subsection 51(2) of the Principal Act to reflect the
insertion of new Subdivision D relating to the application of section 50 of the
TPA to the issue of spectrum licences, and third party authorisations under
those licences (see items 25 and 28).
Item 19 - Paragraph
52(1)(b)
Section 52 of the Principal Act applies Subdivision A of
Division 1 of Part 3.2 (relating to the issuing of spectrum licences in
substitution for apparatus licences) to apparatus licences covered by a
conversion plan. This item is consequential to the amendment at item 12 and
replaces paragraph 52(1)(b) with a new paragraph to take into account that
conversion plans will be required to specify the areas in which operation of
radiocommunications devices would be authorised by spectrum licences issued in
accordance with the plans.
Item 20 - Subdivision B of Division 1 of
Part 3.2 (heading)
This item is a formal consequential
amendment.
Item 21 - At the end of section 60
Section 60 of
the Principal Act provides for the SMA to determine procedures for allocating
spectrum licences. This item inserts a new subsection (5) into section 60 to
allow allocation procedures to impose limits on what a person, or a group of
persons, may be allocated under the price-based allocation procedures. The
purpose for setting limits can be for competition policy reasons, for example to
promote competition or avoid adverse effects on competition. Any limits set may
relate to the same factors taken into consideration in the application of the
TPA. The anti-competitive provisions of the TPA alone would apply to any
post-allocation trading in licences or spectrum.
For all the limits, in
determining the application of the limit to a person, the person’s current
holdings may be taken into account, that is, all the spectrum covered by
spectrum licences and apparatus licences (if the limit is so expressed) that
authorise the person to operate a radiocommunications device.
Limits may
be imposed on:
• the aggregate parts of the spectrum that may be
used by any one person, or a specified person, as a result of the allocation of
spectrum licences under the procedures (paragraph (a))
− in determining
the application of this limit to a person, what will be taken into account will
include not only those licences for which the person is the licensee, but also
any authorisations the person has from other licensees to operate under their
licences;
• the aggregate parts of the spectrum that may be used by
the members of a specified group of persons (paragraph (b))
− the same
factors will be taken into account as for paragraph (a).
New subsection
(6) makes it clear that limits may be expressed in relation to particular parts
of the spectrum so that different limits may be specified for different parts of
the spectrum ((a)); specified geographical areas ((b)); and/or a specified
population reach ((c)). The limits do not have to apply across the whole
spectrum.
New subsection (7) allows procedures determined under
subsection (1) to provide for the SMA to give the ACCC specified information.
This supports the application of section 50 of the TPA to the allocation and
issue of licences (see item 28) by allowing the SMA to provide information to
the ACCC during an allocation procedure. The ACCC will then be better informed
when considering whether the issue, or proposed issue, of a licence to a
particular person would be a contravention of section 50 of the TPA.
New
subsection (8) puts it beyond doubt that new subsections (5), (6) and (7) are
not meant to limit what may be specified in the allocation
procedures.
New subsections (9) and (10) make it clear that the power to
impose limits under new subsection (5) may only be exercised at the direction of
the Minister. New subsection (9) prevents the SMA from imposing any limits
unless directed to do so by the Minister under new subsection (10). New
subsection (10) allows the Minister to give the SMA a written direction in
relation to the power to impose limits.
New subsection
(11) requires a ministerial direction under new subsection (10) to be
Gazetted.
New subsection (12) requires the SMA to exercise its powers
under subsection (1), in determining allocation procedures, consistently with
any directions from the Minister under new subsection (10).
New
subsection (13) makes it clear that new subsection (10) is not meant to limit
any of the Minister’s other powers of direction under the Act.
New
subsection (14) requires the SMA to consult with the ACCC on the types of
information provision requirements that might be specified in the allocation
procedures under new subsection (7).
Item 22 - At the end of section
62
Section 62 of the Principal Act relates to the allocation and
issue of spectrum licences. This item inserts a new subsection (3) into section
62 to provide that where the SMA has allocated a spectrum licence under new
section 153M (which relates to the re-allocation of spectrum as spectrum
licences) it may defer the issue of the licence to the new licensee until the
frequencies to be covered by the licence become available for use by the new
licensee. The purpose for this new provision is to assist new licensees. If
the licence were to be issued at allocation time, part of the period of the
licence would be of no real value to the new licensee because of the time it
could take for existing services to vacate the spectrum. In some cases the use
of the licence would not become viable until towards the end of that licence
period.
Item 23 - Subsection 65(3)
Subsection 65(3) of the
Principal Act allows spectrum licences to be issued for a period of up to 10
years. This item amends subsection 65(3) to allow a maximum period of 15 years.
This has been done in response to concerns that 10 years is an inadequate period
to recover the investment in the necessary infrastructure.
Item 24 -
At the end of section 66
Section 66 of the Principal Act imposes
requirements for core conditions of spectrum licences. This item inserts a new
subsection (5) into section 66 to provide that where the SMA has allocated a
spectrum licence under new section 153M (which relates to the re-allocation of
spectrum as spectrum licences) it may provide for the progressive operation of
radiocommunications devices under the licence. This provision has been included
because when a spectrum licence is issued under the spectrum re-allocation
process, the suite of frequencies covered by the licence may include some
frequencies that will not become available for use by the new licensee until
they are vacated by the incumbent licensee. In these cases, instead of multiple
licences having to be issued in a piecemeal fashion as those frequencies become
available, a single licence may be issued which takes account of the dates on
which the frequencies covered by the licence will become available to the new
licensee.
Item 25 - After section 68
Part 3.2 of the
Principal Act deals with spectrum licences. Section 68 provides for a spectrum
licensee to authorise other persons to operate under the authority of the
licensee’s spectrum licence. This item inserts a new section 68A to
provide for the application of parts of the TPA to such
authorisations.
68A - Authorisation under spectrum licence is to be
treated as acquisition of asset
New section 68A deems the
authorisation, under subsection 68(1) of the Principal Act, of a person to
operate a radiocommunications device under a spectrum licence to be the
acquisition of an asset by that person for the purposes of section 50 and
subsections 81(1), and (1A) and 88(9), 89(5A) and 90(9) of the TPA. These TPA
provisions are concerned respectively with: prohibiting asset acquisitions that
have the effect of substantially lessening competition in a market (section 50),
divestiture orders where there has been a contravention of section 50 (section
81); the granting by the ACCC of authorisations to acquire assets where such
acquisition would otherwise be in breach of section 50 (subsection 88(9)), the
confidentiality of information regarding the cash consideration for the
acquisition of an asset (subsection 89(5A)); and the public benefit in an
authorisation under subsection 88(9) being granted to allow a person to acquire
an asset which would otherwise be a contravention of section 50 (subsection
90(9)). New section 68A has been inserted in recognition that authority to
operate under radiocommunications licences can be an important aspect of
commercial strategy in dynamic communications markets.
Item 26 -
Section 70
Section 70 of the Principal Act provides for TLSs to be
specified in spectrum licences. As all references to TLSs are being removed
from the Act (see notes on item 8), this item repeals section 70.
Item
27 - Subsection 71(2)
Section 70 of the Principal Act is to be
repealed by item 25. As a consequence, the reference to section 70 in
subsection 71(2) of the Act is to be omitted by this item.
Item 28 -
After section 71
Part 3.2 of the Principal Act deals with spectrum
licences. This item inserts a new Subdivision D into Division 1 of this Part to
provide for certain matters concerning the application of the TPA to allocation
and issue of spectrum licences.
Subdivision D - Rules about section 50
and related provisions of the Trade Practices Act
71A - Issue of
spectrum licence is to be treated as acquisition of asset
New section
71A deems the issue of a spectrum licence to a person to be the acquisition of
an asset for the purposes of section 50 and subsections 81(1), 88(9), 89(5A) and
90(9) of the TPA. These TPA provisions are concerned respectively with:
prohibiting asset acquisitions that have the effect of substantially lessening
competition in a market (section 50); divestiture orders where there has been a
contravention of section 50 (subsection 81(1)); the granting by the ACCC of
authorisations to acquire assets where such acquisition would otherwise be in
breach of section 50 (subsection 88(9)); the confidentiality of information
regarding the cash consideration for the acquisition of an asset (subsection
89(5A)); and the public benefit in an authorisation under subsection 88(9) being
granted to allow a person to acquire an asset which would otherwise be a
contravention of section 50 (subsection 90(9)). New section 71A has been
inserted in recognition that the acquisition of radiocommunications licences can
be an important aspect of commercial strategy in dynamic communications
markets.
It should be noted that items 25 and 42 apply subsection 81(1A)
of the TPA to third party authorisations under spectrum and apparatus licences
respectively. Subsection 81(1A) of the TPA allows a court in a divestiture
action to declare that the acquisition of an asset in contravention of section
50 of the TPA is void from the day the acquisition occurred, whereupon the
vendor is required to repay to the acquirer any amount paid to the vendor for
the acquisition. It would be inappropriate to apply such a declaration to a
situation where: the SMA has collected fees from a licensee, where the fees are
the aggregate of amounts imposed as tax and of other amounts which are to
recover the SMA’s costs in processing the licence application; and the
licensee has already held the licence for part of the period covered by the tax.
It would also be unacceptable to subject the Commonwealth to the further costs
of having to re-allocate the licence the issue of which would be treated as void
because of a subsection 81(1A) declaration. For these reasons subsection 81(1A)
of the TPA has not been applied to the issue of a licence under the Principal
Act.
While the insertion of section 71A affects licence issue in terms of
the application of the TPA, it does not have the effect of applying the TPA to
the SMA when it issues licences. The SMA’s immunity from the TPA is
maintained.
Item 29 - Section 83
Section 83 of the
Principal Act applies the content provisions of Subdivision C of Division 1 to
re-issued spectrum licences. This item amends section 83 to apply also new
Subdivision D of Division 1, relating to the application of the TPA to the issue
of spectrum licences (inserted by item 28), to re-issued spectrum
licences.
Item 30 - Section 83
This item is a formal
amendment consequential to item 29.
Item 31 - After subsection 87(2)
(before the note)
Section 87 of the Principal Act provides for the
issue of new spectrum licences by the SMA to facilitate the trading in spectrum
licences. Where one licensee sells part of its licence to another person, it
would be necessary to issue a new licence to that person with conditions that
reflect that part of the licence it has acquired.
This item amends
section 87 by inserting a new subsection (3) to apply new Subdivision D of
Division 1, relating to the application of the TPA to the issue of spectrum
licences (inserted by item 28), to the issue of new licences under section
87.
Item 32 - After subsection 98(2)
Section 98 of the
Principal Act provides for the SMA to determine types of transmitter and
receiver licences for the purposes of issuing apparatus licences. This assists
in the administration of apparatus licensing by allowing the categorisation of
apparatus licences. This item inserts a new subsection (2A) into section 98 to
make it clear that any references in the Act to ‘types’ of apparatus
licences means types of licences as determined under section 98.
Item
33 - At the end of subsection 100(5)
Subsection 100(5) of the
Principal Act allows the SMA, in deciding whether to issue an apparatus licence
to a person, to take into account whether the person has had an apparatus
licence cancelled in the 2 years before the licence application.
This
item qualifies subsection 100(5) by inserting words to the effect that the SMA
may not take into account any cancellations done under new section 153J (to be
inserted by item 46) at the end of a re-allocation period. New section 153J
provides for the automatic cancellation of affected licences at the end of the
relevant re-allocation period.
Item 34 - Subsection
106(1)
This item amends subsection 106(1) of the Principal Act to
insert words that allow a distinction to be drawn between
‘allocating’ and ‘issuing’ an apparatus licence under a
price-based allocation system. Essentially, ‘allocation’ means
identifying the successful applicant or bidder for a licence under the
allocation system; whereas ‘issuing’ means administratively
providing the licence to that successful applicant or bidder. Such a
distinction is already recognised in sections 60 and 62 which relate to the
price-based allocation, and subsequent issue, of spectrum
licences.
Item 35 - After subsection 106(2)
Section 106 of
the Principal Act provides for the SMA to determine a price-based allocation
system for issuing apparatus licences. This item inserts a new subsection (3)
to permit allocation procedures to impose limits on what a person, or a group of
persons, may be allocated under the price-based allocation procedures - this is
similar to the effect of item 21. The purpose for setting limits can be for
competition policy reasons, for example to promote competition or avoid adverse
effects on competition. Any post-allocation trading in licences would be subject
to the TPA.
For all the limits, in determining the application of the
limit to a person, the person’s current holdings can be taken into
account, that is, all apparatus licences and spectrum licences (if the limit is
so expressed) which authorise the person to operate a radiocommunications device
(including by means of a third party authorisation).
Limits may be
imposed on:
• the number of transmitter licences that may be
allocated to any person, or a specified person (paragraph (a));
and
• the total number of transmitter licences that may be
allocated to members of a specified group of persons (paragraph
(b))
− this limit is not applied to members of the group individually,
but applies to the group as a whole. As an example, a limit of 5 licences for
groups would not allow each person in a group to hold 5 licences. The number of
licences held by each member would be added to the number of licences held by
other members so that the total could not exceed 5.
This item also
inserts new subsection (4), to make it clear that limits may be expressed in
relation to: particular parts of the spectrum so that different limits may be
specified for different parts of the spectrum, that is, the limits do not have
to apply across the whole spectrum (paragraph (a)); different specified areas
(paragraph (b)); and/or specified population reaches (paragraph (c)).
Paragraphs (b) and (c) reflect the expectation that limits will be imposed for
reasons related to competition policy, so that these paragraphs will allow
different limits to be imposed in relation to different markets.
This
item also inserts a new subsection (5) into section 106 to provide that a
price-based allocation system, determined for the allocation of apparatus
licences covered by new section 153N (which relates to the re-allocation of
spectrum as apparatus licences) may allow the SMA to defer the issue of a
licence to a new licensee until the frequency to be covered by the licence
becomes available for use by the new licensee. The purpose for this new
provision is to assist new licensees. If the licence were to be issued at
allocation time, part of the period of the licence would be of no real value to
the new licensee because of the time it would take for existing services to
vacate the spectrum. In some cases the licence would not become viable until
towards the end of that licence period.
New subsection (6) allows a
system determined under subsection (1) to provide for the SMA to give the ACCC
specified information. This supports the application of section 50 of the TPA
to the issue of licences (see item 38) by allowing the SMA to provide
information to the ACCC during an allocation procedure. The ACCC will then be
better informed when considering whether the issue, or proposed issue, of a
licence to a particular person would be a contravention of section 50 of the
TPA.
Another new subsection inserted by this item, subsection (7), puts
it beyond doubt that subsection (2) and new subsections (3), (4) and (5) are not
meant to limit what may be specified in a price-based allocation
system.
New subsections (8) and (9) make it clear that the power to
impose limits under new subsection (3) may only be exercised at the direction of
the Minister. New subsection (8) prevents the SMA from imposing any limits
unless directed to do so by the Minister under new subsection (9). New
subsection (9) allows the Minister to give the SMA a written direction in
relation to the power to impose limits.
New subsection (10) requires a
ministerial direction under new subsection (9) to be Gazetted.
New
subsection (11) requires the SMA to exercise its powers under subsection (1), in
determining allocation procedures, consistently with any directions from the
Minister under new subsection (9).
New subsection (12) requires the SMA
to consult with the ACCC on the types of information provision requirements that
might be specified in the allocation procedures under new subsection
(6).
Item 36 - Subsection 106(3)
This item is a formal
amendment consequential upon the previous item.
Item 37 - At the end
of section 106
Section 106 of the Principal Act provides for the SMA
to determine a price-based allocation system for issuing apparatus licences.
This item inserts a new subsection (14) to permit the Minister to direct the
SMA, in determining an allocation system, to restrict the eligibility of
applicants under such a system to a particular class of applicants. The class
of applicants that may be the subject of such a direction is restricted to that
where the Principal Act or another law requires a person who operates a
transmitter, of the type to be issued under the system, to be within a specified
class of persons.
New subsections (15) and (16) require the SMA to comply
with any such direction from the Minister, and provide for a direction to be a
disallowable instrument.
New subsection (17) makes it clear that new
subsections (9) and (14) are not meant to limit any of the Minister’s
other powers of direction under the Act.
Item 38 - After section
106
This item inserts a new section into the Principal Act to provide
for certain matters concerning the application of the TPA to the allocation and
issue of apparatus licences.
106A - Issue of apparatus licence is to
be treated as acquisition of asset of a person for the purposes of section 50 of
the Trade Practices Act
New subsection 106A(1) deems the issue of an
apparatus licence to a person to be the acquisition of an asset for the purposes
of section 50 and subsections 81(1), 88(9), 89(5A) and 90(9) of the TPA. These
TPA provisions are concerned respectively with: prohibiting asset acquisitions
that have the effect of substantially lessening competition in a market (section
50); divestiture orders where there has been a contravention of section 50
(subsection 81(1)); the granting by the ACCC of authorisations to acquire assets
where such acquisition would otherwise be in breach of section 50 (subsection
88(9)); the confidentiality of information regarding the cash consideration for
the acquisition of an asset (subsection 89(5A)); and the public benefit in an
authorisation under subsection 88(9) being granted to allow a person to acquire
an asset which would otherwise be a contravention of section 50 (subsection
90(9)). The insertion of new subsection 106A(1) recognises that the acquisition
of radiocommunications licences can be an important aspect of commercial
strategy in dynamic communications markets.
It should be noted that items
25 and 42 apply subsection 81(1A) of the TPA to third party authorisations under
spectrum and apparatus licences respectively. Subsection 81(1A) of the TPA
allows a court in a divestiture action to declare that the acquisition of an
asset in contravention of section 50 of the TPA is void from the day the
acquisition occurred, whereupon the vendor is required to repay to the acquirer
any amount paid to the vendor for the acquisition. It would be inappropriate to
apply such a declaration to a situation where: the SMA has collected fees from a
licensee, where the fees are the aggregate of amounts imposed as tax and of
other amounts which are to recover the SMA’s costs in processing the
licence application; and the licensee has already held the licence for part of
the period covered by the tax. It would also be unacceptable to subject the
Commonwealth to the further costs of having to re-allocate the licence the issue
of which would be treated as void because of a subsection 81(1A) declaration.
For these reasons subsection 81(1A) of the TPA has not been applied to the issue
of a licence under the Principal Act.
While new subsection 106A(1)
affects licence issue in terms of the application of the TPA, it does not have
the effect of applying the TPA to the SMA when it issues licences. The
SMA’s immunity from the TPA is maintained.
New subsection 106A(2)
provides that the application of the TPA to the issue of apparatus licences
under new subsection 106A(1) is not to extend to the issue, under section 102 of
the Principal Act, of a transmitter licence to a broadcasting services bands
licensee within the meaning of the Broadcasting Services Act 1992.
Essentially, the issue of a licence under section 102 is automatic because the
SMA is required to issue a transmitter licence to a person who has been granted
a broadcasting services bands licence.
New section 106A does not,
however, apply to the renewal of an apparatus licence (new subsection 106A(3)).
The renewal of a licence is no more than maintaining the status quo; it is other
changes in circumstances such as the trading in licences that are more likely to
raise competition issues.
Item 39 - Paragraph
107(1)(e)
Paragraph 107(1)(e) of the Principal Act provides that it
is a standard condition of an apparatus licence that the operation of
radiocommunications devices under the licence must be in accordance with any TLS
specified in the licence. All references to TLSs are being repealed - see item
8. This item repeals paragraph 107(1)(e).
Item 40 - Subsection
107(2)
This item is a formal amendment consequential to the amendment
at item 39.
Item 41 - At the end of section 107
Section 107
of the Principal Act relates to the standard licence conditions of apparatus
licences. This item inserts a new subsection (5) into section 107 to provide
that where the SMA has allocated an apparatus licence under new section 153N
(which relates to the re-allocation of spectrum as apparatus licences) it may
provide for the progressive operation of radiocommunications devices under the
licence. This provision has been included because sometimes when an apparatus
licence is issued under the spectrum re-allocation process, the frequency or
suite of frequencies covered by the licence will include a frequency or some
frequencies that will not become available for use by the new licensee until
they are vacated by the incumbent licensee. In these cases, instead of multiple
licences having to be issued in a piecemeal fashion as those frequencies become
available, a single licence may be issued which takes account of the dates on
which the frequencies covered by the licence will become available to the new
licensee.
New subsection (6) makes it clear that new subsection (5) is
not meant to limit the operation of subsection 107(1).
Item 42 - After
section 114
This item inserts a new section into the Principal Act to
provide for certain matters concerning the application of the TPA to third party
authorisations under apparatus licences.
114A - Authorisation under
apparatus licence is to be treated as acquisition of asset of person for the
purposes of section 50 of the Trade Practices Act
New subsection
114A(1) deems the authorisation of a person, under subsection 114(1) of the
Principal Act, to operate a radiocommunications device under an apparatus
licence, to be the acquisition of an asset for the purposes of section 50 and
subsections 81(1), and (1A) and 88(9), 89(5A) and 90(9) of the TPA. These TPA
provisions are concerned respectively with: prohibiting asset acquisitions that
have the effect of substantially lessening competition in a market (section 50),
divestiture orders where there has been a contravention of section 50 (section
81); the granting by the ACCC of authorisations to acquire assets where such
acquisition would otherwise be in breach of section 50 (subsection 88(9)), the
confidentiality of information regarding the cash consideration for the
acquisition of an asset (subsection 89(5A)); and the public benefit in an
authorisation under subsection 88(9) being granted to allow a person to acquire
an asset which would otherwise be a contravention of section 50 (subsection
90(9)).
New subsection 114A(1) has been inserted in recognition that the
acquisition of radiocommunications licences can be an important aspect of
commercial strategy in dynamic communications markets. It is also in
recognition that a third party authorisation can be just as important as the
holding of a radiocommunications licence in such a strategy.
Item 43 -
After subsection 130(2)
Section 130 of the Principal Act provides for
the renewal of apparatus licences. This item inserts a new subsection (2A) into
section 130 to provide that where a licence is affected by a re-allocation
declaration under new section 153E, and the licence is due to expire after the
end of the re-allocation period, the licence must not be renewed (see item 46
regarding the new re-allocation process provisions). The reason for this
amendment is that in these situations, ordinarily, the new licence covering the
same part of spectrum allocated under the re-allocation process, will authorise
operation on the relevant frequency or frequencies upon the expiry of the old
licence.
Item 44 - After subsection 130(4)
Section 130 of
the Principal Act provides for the renewal of apparatus licences. This item
inserts a new subsection (4A) into section 130 to provide that where a licence
is affected by a re-allocation declaration under new section 153E, the licence
must not be renewed for a period that extends beyond the end of the
re-allocation period (see item 46 regarding the new re-allocation process
provisions). The reason for this is that new section 153J provides that such a
licence will automatically be cancelled at the end of the re-allocation
period.
Item 45 - At the end of subsection
147(1)
Subsection 147(1) of the Principal Act requires certain
details to be specified, in relation to each issued apparatus licence, in a
Register of Radiocommunications Licences that the SMA is required to establish
and maintain under section 143.
This item inserts a new paragraph (f)
into subsection 147(1) to require the SMA to include a note against each
apparatus licence that is affected by a re-allocation declaration that the
licence is so affected.
Item 46 - After Part 3.5
This item
inserts a new Part 3.6 into the Principal Act to provide for the re-allocation
of spectrum that is occupied by apparatus licences. The new Part is to allow
for the smooth and timely removal of apparatus licences from parts of spectrum
that are needed for new, or different, and higher priority uses or users.
Rather than having to clear spectrum before allocating it to other uses or
users, the SMA will be able to re-allocate occupied spectrum while providing a
period by which the incumbent licences have to move. This will avoid the delays
incurred by clearing spectrum prior to re-allocation, and the risks of clearing
spectrum unnecessarily or too early in relation to the demand for its new
use.
PART 3.6 - RE-ALLOCATION OF ENCUMBERED
SPECTRUM
153A - Outline of this Part
New section 153A
provides an outline of Part 3.6 to assist the reader.
153B - Spectrum
re-allocation declaration
New section 153B allows the Minister to
make a written declaration that a part, or parts of the spectrum, is subject to
re-allocation in relation to a specified area or areas (new subsections (1) and
(3)).
The declaration must be made in relation to a specified period, the
‘re-allocation period’, which runs for at least 2 years, and which
must commence within 28 days after the date of the declaration (new subsection
(4)). The ‘re-allocation period’ is relevant as the time at the end
of which the old licences, which were issued after the commencement of new Part
3.6, will automatically be cancelled. Any old licences issued before the
commencement of new Part 3.6 will expire at the end of their term (and not be
renewed) even if the term extends beyond the end of the re-allocation
period.
The declaration must also specify a ‘re-allocation
deadline’ (new subsection (5)) which is relevant as the time by which the
spectrum covered by the declaration must be re-allocated, otherwise, the
declaration lapses (see new section 153L).
However, spectrum which is
occupied by spectrum licences may not be the subject of a re-allocation
declaration (new subsection (7)). Only spectrum occupied by apparatus licences,
or unoccupied spectrum, may be covered by a re-allocation declaration (new
subsection (8)). The reason for allowing unoccupied spectrum to be covered is
to facilitate the re-allocation of contiguous blocks of spectrum, rather than
fragmented parts that are separated by intervals of unoccupied
spectrum.
The declaration must state what form of licences are to be
issued when re-allocating the spectrum, which may be spectrum or apparatus
licences, or a combination of these (new subsection (6)).
New subsection
(9) has been included to make it clear that separate parts of the spectrum may
be covered by the one declaration even if those parts adjoin. This becomes
relevant for provisions such as new section 153L which provides that if a part
of spectrum covered by a declaration has not been re-allocated by the
re-allocation deadline, the declaration is automatically revoked in respect of
that part of the spectrum, but only that part - any adjoining part or other part
covered by the same declaration is not affected and will still be subject to the
declaration. It is also relevant for new section 153K which prevents the
Minister from revoking or varying a declaration in relation to a part of the
spectrum where the SMA has begun to allocate that part.
153C -
Spectrum re-allocation declaration - special provisions relating to the 900 MHz
Band Plan
The 900 MHz Band Plan (the Plan), Statutory Rules 1992 No
47 is a frequency band plan made under section 32 of the Principal Act.
Frequency band plans specify the purpose for which parts of the spectrum covered
by the band plan may be used, and conversely, purposes for which they may not be
used (after certain dates). The Plan provides that certain blocks of
frequencies in the 800 MHz bands, currently used for AMPS mobile phone services
provided by Telstra, must cease to be used for that purpose by certain specified
dates, the principal date being 1 January 2000 (see Table 4 of the Plan). The
SMA is developing a plan for the clearance of these bands by certain dates
before that specified in the Plan. The SMA proposes to amend the Plan to change
the cessation dates specified in Table 4 to accord with the clearance plan when
agreed.
During public consultation on a draft of this Bill, there was
general industry support for the sale of the recovered 800 MHz spectrum at
around the same time as the allocation of the 1.8 GHz spectrum (which is
proposed to be the subject of the first re-allocation declaration made under new
section 153B). It is therefore proposed that the recovered 800 MHz spectrum be
able to be re-allocated under new Part 3.6.
The purpose of the new
section 153C is to allow the cessation dates specified in Table 4 to be taken to
be the end of the re-allocation period for the relevant recovered spectrum, even
where this would result in a re-allocation period of less than 2
years.
New subsection 153C(1) applies new section 153C to a part of the
spectrum covered by Table 4 of the Plan where that part is also specified in a
re-allocation declaration.
New subsection 153C(2) requires that a
declaration referred to in new subsection (1) should not specify any other part
of the spectrum unless it is also covered by Table 4 of the Plan and is subject
to the same cessation date. The reason for this is that the scheme under new
Part 3.6 is based on there being only one re-allocation period specified in a
re-allocation declaration, particularly for the purposes of new sections 153J,
153K and new subsection 153Q(2).
New subsection 153C(3) requires the
re-allocation period specified in the declaration referred to in subsection (1)
to cease immediately before the cessation date specified in Table 4 of the
Plan.
New subsection 153C(4) provides that the requirement in new
subsection 153B(5) that a re-allocation deadline be specified in the declaration
does not apply to a declaration referred to in new subsection (1).
New
subsection 153C(5) defines terms for the purposes of new section
153C.
153D - Spectrum re-allocation declaration - ancillary
provisions
New section 153D(1) requires the Minister to give the SMA
a copy of the re-allocation declaration made under new subsection
153B(1).
When the SMA receives a copy of a declaration from the Minister,
it must notify affected licensees (defined in new section 153E) that the
declaration has been made either by giving each licensee a notice or by
publishing the notice in the major newspapers, and make copies of the
declaration available (new subsection (2)).
Re-allocation declarations
are disallowable instruments (new subsection (3)).
153E - Affected
apparatus licences and licensees
New section 153E defines the term
‘affected apparatus licensee’ (new subsection (2)), and provides an
explanation of when an apparatus licence is taken to be ‘affected’
by a re-allocation declaration (new subsection (1)).
153F - Minister
may make a spectrum re-allocation declaration only after receiving the
SMA’s recommendation
The Minister may not make a re-allocation
declaration unless the SMA has given the Minister a recommendation that the
Minister make a declaration (new subsection 153F(1)). The SMA’s
recommendation must have been given to the Minister within 180 days prior to the
Minister making a declaration. The Minister is not bound by the SMA’s
recommendation (new subsection (3)), but must take it into account in deciding
whether to make a declaration (new subsection (2)).
153G - SMA may
recommend that the Minister make a spectrum re-allocation
declaration
New subsection 153G(1), allows the SMA to make a
recommendation to the Minister to make a declaration, and, if it does so, it
must specify the re-allocation period the SMA proposes (new subsection (2)).
The SMA is not limited in the matters that may be covered by the recommendation
(new subsection (3)).
153H - Comments by potentially-affected
apparatus licensees on recommendation
New section 153H requires the
SMA to consult with potentially-affected licensees before recommending that the
Minister make a re-allocation declaration. The SMA is required to give those
licensees at least 28 days in which to comment on the terms of the proposed
recommendation (new subsection (2)), details of which must be included in the
SMA’s notice to the licensees (new subsection (1)). In preparing the
final version of the recommendation, the SMA is required to have regard to any
comments made by affected licensees (new subsection (3)). The SMA is not
limited in the matters that may be covered by the final recommendation (new
subsection (4)).
The SMA has been engaged in ongoing consultations with
apparatus licensees operating in the 1.8 GHz band. These licensees are likely
to be affected by the first re-allocation declaration proposed to be made in
order to make that spectrum available for the expansion of mobile and other
telecommunications services. New subsection (5) allows the Minister to exempt
the SMA from the requirements set out in new subsections (1) to (4) where the
Minister is satisfied that any consultation undertaken by the SMA, from 1 July
1996 to the commencement of new section 153H, may reasonably be regarded as
equivalent to the requirements of those new subsections. This will expedite the
re-allocation process in relation to the 1.8 GHz band and facilitate making that
spectrum available in time to allow the new services to be established by late
1998 or early 1999.
New subsection 153H(6) defines terms used in this new
section.
153J - Effect of spectrum re-allocation
declaration
New section 153J provides that an apparatus licence
affected by a re-allocation declaration ceases to have effect at the end of the
re-allocation period (subsection (2)). This applies only to a licence where the
licence continues to be affected by the declaration at the end of that period
(subsection (1)). Thus, where a licence is affected by a declaration, and,
before the end of the re-allocation period, the conditions of the licence are
varied so that the licence is no longer affected (eg. by a change in operating
frequency), the licence will run for its normal term, it will not be cancelled
under this clause.
However, not all affected licences will
automatically be cancelled under this provision. This new section applies only
to licences that were issued after new Part 3.6 comes into effect (paragraph
(1)(b)); it does not apply to licences that were issued before new Part 3.6
comes into effect. The reason for this distinction is that, for the former
licences, the licensees would be aware that the issue of their licences were
subject to the possibility that a re-allocation declaration could be made in
respect of the spectrum in which they operate under their licences at any time
during the term of the licences. Whereas, in the case of the latter licences,
the licensees could not have been aware of such a possibility because at the
time their licences were issued, there was no statutory power to make a
re-allocation declaration with the resulting automatic cancellation of the
affected licences at the end of the re-allocation period.
153K -
Revocation and variation of spectrum re-allocation declaration
New
section 153K provides for timing limitations on the revocation and variation of
spectrum re-allocation declarations.
The Minister is prevented from
revoking a declaration where the SMA has begun allocating licences in respect of
a part of the spectrum covered by the declaration (new subsection (1)) (see the
notes relating to the meaning of ‘part of the spectrum’ in new
subsection 153B(9)).
The Minister is prevented from varying a declaration
where the SMA has begun allocating licences in respect of an area covered by the
declaration, and the variation relates to that area (subsection (2)).
The
SMA is taken to have begun allocating licences if it has published
advertisements relating to the auction or tender of the licences, or invites
applications for the allocation of the licences (subsection (3)). This
limitation has been imposed on the Minister’s power to revoke or vary
re-allocation declarations because it is recognised that considerable resources
may be expended by persons in preparing applications for participation in
auctions, tenders or other methods of allocating licences. The limitation will
ensure that such resources are not wasted because of changes to declarations
after the allocation processes have commenced.
However, the Minister is
not prevented from varying a declaration by extending the re-allocation deadline
where the Minister considers there are special circumstances warranting such an
extension (subsection (4)). This provision has been included because it is
recognised that there may be some unforeseen circumstances which cause delays in
a re-allocation process, but which should not result in the frustration of that
process.
153L - Automatic revocation of spectrum re-allocation
declaration if no licence allocated by re-allocation deadline
New
section 153L provides for the automatic revocation of a spectrum re-allocation
declaration if the SMA has not allocated a licence in respect of a part of the
spectrum covered by the declaration before the re-allocation deadline
(subsections (1) and (2)). Where a declaration is revoked under this clause,
the SMA must notify the affected licensee(s) in writing as soon as practicable
after the revocation (subsection (3)). This will ensure that, where
re-allocation is to proceed, affected licensees will have at least 12 months in
which to negotiate an agreement with the new licensee to remain in the spectrum,
or arrange relocation to another part of the spectrum, before the affected
licensee’s licence is cancelled automatically under new section 153J at
the end of the re-allocation period, or expires at the end of its
term.
The restriction on revocation provided by new
section 153K does not affect the operation of an automatic revocation under this
new section (subsection (4)).
Subsection 33(3) of the Acts
Interpretation Act 1901 would allow the Minister to revoke a declaration.
New subsection (5) makes it clear that new section 153L is not to be taken to
limit the operation of subsection 33(3). Consequently, it will be possible for
the Minister to revoke a declaration in relation to a part of the spectrum
covered by the declaration as long as the SMA has not begun to re-allocate that
part (see new section 153K).
153M - Re-allocation by means of issuing
spectrum licences
New section 153M provides that, where a
re-allocation declaration requires spectrum to be re-allocated as spectrum
licences (subsection (1)), those licences must be issued according to the
marketing plan made under new section 39A (subsection (2)).
153N -
Re-allocation by means of issuing apparatus licences
New section 153N
provides that, where a re-allocation declaration requires spectrum to be
re-allocated as apparatus licences (subsection (1)), those licences must be
issued according to a price-based allocation system determined under section
106, as amended by items 34 to 37 (subsection (2)).
153P - Restriction
on issuing spectrum licences for parts of the spectrum subject to
re-allocation
New section 153P places restrictions on the issue of
spectrum licences for spectrum affected by a re-allocation declaration
(subsection (1)). The SMA is prevented from issuing a licence in relation to
affected spectrum during the re-allocation period unless the licence is issued
under new section 153M in accordance with a marketing plan made under new
section 39A (paragraphs (2)(a), (b) and (c)). However, this restriction does
not apply where the SMA has already allocated a spectrum licence to a person
under section 62 of the Principal Act before the beginning of the re-allocation
period, as a result of a previously conducted allocation procedure determined
under section 60 of the Principal Act (paragraph (2)(d)).
153Q -
Restriction on issuing apparatus licences for parts of the spectrum subject to
re-allocation
New section 153Q places restrictions on the issue of
apparatus licences for spectrum affected by a re-allocation declaration
(subsection (1)). During the re-allocation period the SMA is prevented from
issuing an apparatus licence in relation to spectrum specified in the
declaration unless the licence is issued under new section 153N in accordance
with a price-based allocation system determined under section 106 of the
Principal Act (paragraphs (2)(a), (b) and (c)). However, this restriction does
not apply to the renewal of an apparatus licence under Division 7 of Part 3.3 of
the Principal Act (paragraph (2)(d)) or where special circumstances justify the
issuing of the licence (paragraph (2)(e)).
After the end of the
re-allocation period, the SMA is prevented from issuing an apparatus licence in
relation to the specified spectrum unless the SMA considers there are special
circumstances to justify doing so (subsection (3)).
Item 47 - At the
end of subsection 155(2)
Section 155 of the Principal Act sets out
the objects of Part 4.1 of the Act which is concerned with a system for
technical regulation of equipment that uses, or is affected by, radio
transmissions.
This item inserts a new paragraph (f) into subsection
155(2) to provide that it is intended that the system protect the health and
safety of persons operating, working on, using services supplied by, or likely
to be affected by, radiocommunications transmitters or receivers. This provision
is related to the amendment at item 63 which inserts a new paragraph into
subsection 162(3) of the Principal Act to allow the SMA to make standards for
the purpose of protecting the health and safety of such persons.
Item
48 - Paragraph 156(e)
This item removes paragraph 156(e) which is
concerned solely with TLSs. All references to TLSs are being removed from the
Principal Act (see item 8).
Item 49 - Paragraph 156(f)
This
item removes the reference to TLSs in paragraph 156(f). All references to TLSs
are being removed from the Principal Act (see item 8).
Item 50 - After
subsection 157(1)
Section 157 of the Principal Act makes it an
offence for a person, without reasonable excuse, to cause a radio emission to be
made by a transmitter the person knows is a non-standard transmitter, that is, a
transmitter that does not comply with a standard that applies to the
transmitter.
Item 63 amends section 162 of the Principal Act to allow the
SMA, in combination with paragraph 162(3)(b), to make standards for the purposes
of an electromagnetic compatibility (EMC) regime. The regime is intended to
apply to all devices, that is, radiocommunications transmitters, other
transmitters, radiocommunications receivers, and any other things any use or
function of which is capable of being interfered with by radio
emission.
However, to ensure that the regime does not extend beyond the
limits of the Commonwealth’s constitutional power, the enforcement action
that can be taken in relation to breaches of those standards is limited to
situations within the limits of that power.
This item inserts a new
subsection (2) into section 157 to give the offence the maximum scope under
available heads of constitutional power in situations where there is a breach
solely because of non-compliance with an EMC standard ie. when the requirements
in the standard are not included for the purposes of paragraph 162(3)(a), (c),
(d) or (f).
Item 51 - Subsection 157(2)
This item is a
formal amendment consequential to the insertion of new subsection 157(2) under
item 50.
Item 52 - Subsection 158(1)
Section 158 of the
Principal Act makes it an offence for a person, without reasonable excuse, to
possess for the purposes of operation a transmitter the person knows to be
non-standard.
This item is a formal amendment which applies the offence
provision in section 158 to breaches relating to devices generally, not just
transmitters. The amendment complements the amendment at item 63 which amends
section 162 of the Principal Act to allow the SMA, in combination with paragraph
162(3)(b), to make standards for the purposes of an electromagnetic
compatibility (EMC) regime. The EMC regime is to apply to all devices, that is,
radiocommunications transmitters, other transmitters, radiocommunications
receivers, and any other things any uses or functions of which are capable of
being interfered with by radio emission.
Item 53 - After subsection
158(1)
Section 158 of the Principal Act makes it an offence for a
person, without reasonable excuse, to possess for the purposes of operation a
transmitter the person knows to be non-standard.
Item 63 amends section
162 of the Principal Act to allow the SMA, in combination with paragraph
162(3)(b), to make standards for the purposes of an electromagnetic
compatibility (EMC) regime. The regime is to apply to all devices, that is,
radiocommunications transmitters, other transmitters, radiocommunications
receivers, and any other things any use or function of which is capable of being
interfered with by radio emission.
However, to ensure that the regime
does not extend beyond the limits of the Commonwealth’s constitutional
power, the enforcement action that can be taken in relation to breaches of those
standards is limited to situations within the limits of that power.
This
item inserts a new subsection (2) into section 158 to give the offence the
maximum scope under available heads of constitutional power in situations where
there is a breach solely because of non-compliance with an EMC standard ie. when
the requirements in the standard are not included for the purposes of paragraph
162(3)(a), (c), (d) or (f).
Item 54 - Subsection
158(2)
This item is a formal amendment consequential to the insertion
of new subsection 158(2) under item 53.
Item 55 - Subsection
158(2)
This item is a formal amendment that complements the amendment
at item 56.
Item 56 - Subsection 158(2)
This item is a
formal amendment which applies the offence provision in section 158 to breaches
relating to devices generally, not just transmitters. The amendment complements
the amendment at item 63 which amends section 162 of the Principal Act to allow
the SMA, in combination with paragraph 162(3)(b), to make standards for the
purposes of an electromagnetic compatibility (EMC) regime. The EMC regime is to
apply to all devices, that is, radiocommunications transmitters, other
transmitters, radiocommunications receivers, and any other things any use or
function of which is capable of being interfered with by radio
emission.
Item 57 - Subsection 158(2)
This item is a formal
amendment that complements the amendment at item 56.
Item 58 - Section
159
Section 159 of the Principal Act supplements the offence
provision in section 158 relating to possession of non-standard
transmitters.
Section 158 is amended by item 53 to apply the offence in
that section to breaches relating to EMC standards (see item 63 which inserts a
new power into section 162 of the Principal Act to make standards relating to an
EMC regime). Section 158 is also amended by item 56 to apply the offence
provision in section 158 to breaches relating to devices generally, not just
transmitters.
This item is a formal amendment that complements the
amendment at item 56.
Item 59 - Subsection 159(1)
This item
is a formal amendment that complements the amendment at item 56.
Item
60 - After subsection 160(1)
Section 160 of the Principal Act makes
it an offence for a person, without reasonable excuse, to supply a device that
the person knows to be non-standard.
Item 63 amends section 162 of the
Principal Act to allow the SMA, in combination with paragraph 162(3)(b), to make
standards for the purposes of an electromagnetic compatibility (EMC) regime.
The regime is to apply to all devices, that is, radiocommunications
transmitters, other transmitters, radiocommunications receivers, and any other
things any use or function of which is capable of being interfered with by radio
emission.
However, to ensure that the regime does not extend beyond the
limits of the Commonwealth’s constitutional power, the enforcement action
that can be taken in relation to breaches of those standards is limited to
situations within the limits of that power.
This item inserts a new
subsection (2) into section 160 to give the offence the maximum scope under
available heads of constitutional power in situations where there is a breach
solely because of non-compliance with an EMC standard ie. when the requirements
in the standard are not included for the purposes of paragraph 162(3)(a), (c),
(d) or (f).
Item 61 - Subsection 160(2)
This item is a
formal amendment consequential to the insertion of new subsection 160(2) under
item 60.
Item 62 - Paragraph 162(3)(c)
Paragraph 162(3)(c)
of the Principal Act allows the SMA to make standards establishing for the
operation of radiocommunications devices an adequate level of immunity from
electromagnetic disturbance caused by the use of devices other than
radiocommunications devices.
Item 63 amends subsection 162(3) of the
Principal Act by inserting a new paragraph (e) to allow the SMA, in combination
with paragraph 162(3)(b), to make standards for the purposes of an
electromagnetic compatibility (EMC) regime. The regime is to apply to all
devices, that is, radiocommunications transmitters, other transmitters,
radiocommunications receivers, and any other things any use or function of which
is capable of being interfered with by radio emission. As a consequence,
paragraph 162(3)(c) is to be amended so it will not overlap with the new
paragraph (e). The reference in paragraph 162(3)(c) to
‘radiocommunications devices’ is to be replaced by
‘radiocommunications transmitters or radiocommunications
receivers’.
Item 63 - At the end of subsection
162(3)
Section 162 of the Principal Act allows the SMA to make
standards concerning the performance of, and the maximum permitted level of
radio emissions from, devices.
Subsection 162(3) places restrictions on
what requirements may be included in standards.
In this item, the
SMA’s standards-making power is supported so that it encompasses within
the limits of Commonwealth Constitutional power, a range of devices capable of
causing, or being subject to, electromagnetic interference (EMI), through
compliance of equipment with EMC-based technical standards. This will enable
the SMA, subject to constitutional limitations, to regulate interference between
non-radiocommunications devices or between a non-radiocommunications device and
a radiocommunications device.
This item inserts 2 new paragraphs (e) and
(f) into subsection 162(3) to allow standards to include requirements which:
establish for devices adequate levels of immunity from electromagnetic
disturbance caused by other devices (paragraph (e)); and protect the health and
safety of persons operating, working on, using services supplied by, or
reasonably likely to be affected by, radiocommunications transmitters or
receivers (paragraph (f)).
EMC standards
New paragraph (e)
will support the full implementation of an EMC regime by the SMA for the control
of EMI between electronic and electrical devices offered for sale in Australia.
The regime is modelled on recently introduced European Community Directives
aimed at limiting EMI.
The effects of EMI can be dramatic, causing poor
performance in affected equipment and even elimination of function. The
manifestations of EMI can range from disturbance to television and radio
reception to malfunctioning of industrial equipment. The request by airlines to
refrain from mobile phone and laptop PC use in flight is to avoid EMI to
aircraft navigation systems.
The EMC regime seeks to ensure that
electronic devices and appliances operate as intended, and do not cause
interference to other devices. Under the regime devices would be required to
conform to standards made under current s.162(3)(b) and new paragraph (e) which
respectively limit the amount of unintentional electromagnetic radiation
emitted, and require minimum levels of immunity from electromagnetic
disturbances.
Health and safety standards
New paragraph (f)
will allow the SMA to make standards for radiocommunications transmitters or
receivers to protect the health and safety of persons operating, working on,
using services supplied by, or are reasonably likely to be affected by,
radiocommunications transmitters or receivers.
The CSIRO has reported to
the SMA that the long-term human health effects of extended exposure to low
levels of electromagnetic radiation (EMR) are not known. Under the Principal
Act, the SMA has no power to enforce compliance with any standard for exposure
to EMR. New paragraph (f) will enable the SMA to make standards to protect the
health and safety of persons in relation to radiocommunications transmitters or
receivers.
Item 64 - At the end of subsection 163(1)
This
item inserts a note after subsection 163(1) of the Principal Act as a reading
aid to alert the reader to the fact that the standards making procedures
required by section 163 can be overridden by the SMA in cases of urgency under
proposed section 163A.
Item 65 - After section 163
Section
163 of the Principal Act requires the SMA to comply with certain specified
procedures for making standards. The procedures basically require a process of
public consultation on a proposed standard.
This item inserts a new
section 163A into the Principal Act to exempt the SMA from having to comply with
the consultation procedures required by section 163 where the SMA is satisfied
that it is necessary to make a standard as a matter of urgency to protect the
health or safety of persons in relation to the operation of radiocommunications
transmitters or receivers.
The inclusion of new section 163A is one of
the measures being taken to align the technical regulation of
radiocommunications under the Principal Act with that of telecommunications
under the proposed Telecommunications Bill 1996. The Telecommunications Bill
will include a clause based on section 248 of the Telecommunications Act
1991 which provides for the making of technical standards in an emergency.
The insertion of new section 163A is also consistent with the power under
subsection 33(6) of the Principal Act to make a spectrum plan or frequency band
plan in urgent circumstances.
Item 66 - Division 4 of Part 4.1
(heading)
This item (as well as items 67 to 71 (inclusive)) is a
formal amendment consequential to the amendments at items 52 to 57 (inclusive)
which relate to the introduction of an EMC standards regime. The amendment in
this item has the effect of deleting the reference to ‘transmitters’
in the heading to Division 4 of Part 4.1 and substituting it with
‘devices’.
Item 67 - Paragraph 166(b)
Item 68 -
Section 166
Item 69 - Subsections 167(2) and (3)
Item 70 -
Section 172
Item 71 - Paragraph 173(1)(a)
These items are
formal amendments consequential to the amendments at items 52 to 57 (inclusive)
which relate to the introduction of an EMC standards regime. The amendments in
items 67 to 71 delete references to ‘transmitter’ (and its
derivatives) and substitute them with references to ‘device’ and its
derivatives.
Item 72 - Division 6 of Part 4.1
This item
repeals Division 6 of Part 4.1 which provides for the SMA to determine technical
licence specifications (TLSs).
Some doubt had arisen as to which was the
appropriate statutory power to be exercised in order to impose conditions
relating to technical matters on licences. The range of options were the making
of standards under section 162; the imposition and variation of licence
conditions under sections 107, 108 or 111; or the specification in a licence of
a TLS (see paragraph 107(1)(e)). In order to remove this doubt it was decided
to remove all references to TLSs from the Principal Act on the basis that the
powers under sections 107, 108, 111 and 162 provide the SMA with all the
necessary tools requiring compliance with technical matters.
Item 73 -
Subsection 182(1)
This item is a formal amendment consequential to
the amendment at item 74.
Item 74 - Paragraph 182(1)(b)
Item
75 - Subsection 182(1B)
Item 76 - Paragraph 182(1B)(b)
Item
77 - Paragraph 182(4A)(b)
Item 78 - Subsection 184(1)
Item
79 - Paragraph 184(2)(a)
These items are formal amendments
consequential to the amendment at item 72 which removes the power of the SMA to
make TLSs.
Item 80 - At the end of section 186
Item 81 - At
the end of section 187
Item 82 - At the end of section
187A
These items amend sections 186, 187 and 187A to provide for
additional, effectively separate, modes of operation that may be relied on if
those sections were found to be unconstitutional. The items insert new
subsections 186(2) to (4); 187(2) to (4); and 187A(2) to (4) (respectively) to
allow the application of the offences in sections 186, 187 and 187A to breaches
relating to EMC standards to be severable by a court. This will mean that where
a court has found those sections to be constitutional, they would operate by
virtue of section 15A of the Acts Interpretation Act 1901 as a
‘consistent workable and effective body of provisions’, even where
the original provisions were invalid (see Strickland v Rocla Concrete Pipes
Ltd (1971) 124 CLR 469; per Barwick CJ, 492-493; per Menzies J, 503-506;
Walsh J, 516-519).
Item 83 - At the end of section
190(2)
Subsection 190(1) of the Principal Act allows the SMA to make
a declaration that the operation or supply, or the possession for the purpose of
operation or supply, of a specified device is prohibited for the reasons set out
in the declaration. Subsection 190(2) restricts the range of devices that may
be declared to devices that are designed to have an adverse effect on
radiocommunications; or would be likely substantially to interfere with
radiocommunications or disrupt or disturb radiocommunications.
This item
supplements the amendment at item 63 which allows the making of standards to
protect the health or safety of persons in relation to the operation of
radiocommunications transmitters or receivers. This item inserts a new
paragraph (c) into subsection 190(2) to allow a radiocommunications transmitter
or radiocommunications receiver to be declared where its operation would be
reasonably likely to have adverse effect on the health or safety of
persons.
Item 84 - After paragraph 233(k)
Section 233 of
the Principal Act sets out the functions of the SMA.
This item inserts a
new paragraph (ka) into section 233 to provide that another function of the SMA
is to provide services or facilities, on a commercial basis, where the provision
of the services or facilities: relates to radiocommunications (subparagraph
(ka)(i)); utilises the SMA’s spare capacity (subparagraph (ka)(ii)); or
maintains or improves the specialised technical skills of the SMA’s staff
in relation to radiocommunications or telecommunications (subparagraph
(ka)(iii)). This will enable for example the SMA to charge a commercial rate
for the use of its conference rooms when those rooms are available for non-SMA
use, and to charge for the staff used to assist in the provision of training for
commercial organisations.
However, the provision of services or
facilities under this new paragraph (ka) is not permitted to impede the
performance of any of the SMA’s other functions (see item
85).
Item 85 - At the end of section 233
This item
supplements the amendment at item 84 which permits the SMA to provide services
and facilities on a commercial basis. This item inserts new subsection 233(2)
to provide that the provision of services and facilities under new subsection
233(1)(ka) is not permitted to impede the performance of any of the SMA’s
other functions.
This item also inserts new subsection 233(3) to provide
a definition of ‘telecommunications’ as used in new subparagraph
233(1)(ka)(iii).
Item 86 - Subsection 238(2)
Item 87 -
Paragraph 262(2)(a)
These items are formal amendments consequential
to the amendment at item 72 which removes the power of the SMA to make
TLSs.
Item 88 - Section 293
This item supplements the
amendment at item 89 which inserts a new subsection into section 293 of the
Principal Act to make it clear that charges determined under that section must
reasonably relate to expenses incurred or to be incurred by the SMA, and not
amount to taxation. This item removes the requirement that charges be
restricted to cost recovery.
Item 89 - At the end of section
293
Section 293 of the Principal Act allows the SMA to make
determinations
fixing charges for certain matters.
This item inserts
a new subsection 293(2) to make it clear that any charges determined must
reasonably relate to the expenses incurred or to be incurred by the SMA in
relation to those matters, and must not amount to taxation.
This item
also inserts a new subsection 293(3) to make it clear that any charges the SMA
makes on a commercial basis, as permitted by new paragraph 233(1)(ka) (see item
84), are not subject to the restrictions or requirements of section
293.
Item 90 - Paragraph 303(h)
This item is a formal
amendment consequential to the amendment at item 72 which removes the power of
the SMA to make TLSs.
Item 91 - Section 312
This is a
formal consequential cross-reference amendment.
Item 92 - Continuity
of section 60 determinations
This item supplements the amendment at
item 21 which amends section 60 of the Principal Act relating to the
determination of allocation procedures for allocating spectrum
licences.
This item makes it clear that the amendments to section 60 are
not to affect the continuity of any section 60 determination in force
immediately before the commencement of this item.
Item 93 - Continuity
of section 106 determinations
This item supplements the amendments at
items 34 to 37 which amend section 106 of the Principal Act relating to the
determination of price-based allocation systems for allocating apparatus
licences.
This item makes it clear that the amendments to section 106 are
not to affect the continuity of any section 106 determination in force
immediately before the commencement of this item.
Item 94 - Continuity
of section 293 determinations
This item supplements the amendments at
items 88 and 89 which amend section 293 of the Principal Act relating to the
determination of charges by the SMA for certain matters.
This item makes
it clear that the amendments to section 293 are not to affect the continuity of
any section 293 determination in force immediately before the commencement of
this item.