legislative instruments—
Proposal to remake
Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000
Radiocommunications (Transfer of Apparatus Licences) Determination 2000
Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2005
Consultation paper
OCTOBER 2014
Canberra
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acma | 1
Contents (Continued)
Background
Brief details of what the legislative instruments do
Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000
Radiocommunications (Transfer of Apparatus Licences) Determination 2000
Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2005
Proposed changes to the legislative instruments
Draft Radiocommunications (Limitation of Authorisation of Third Party Users and Transfer of Apparatus Licences) Determination 2014
Draft Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2014
Issues for comment
Making a submission
acma | 1Background
Under Part 6 of theLegislative Instruments Act 2003, most legislative instruments ‘sunset’ (that is, they are automatically repealed) on the 1 April or 1 October that first occurs 10 years after they are registered on the Federal Register of Legislative Instruments. This is an automatic process applying to most legislative instruments regardless of their particular content.
The following legislative instruments made by the Australian Communications and Media Authority (the ACMA) are due to sunset:
Name of instrument / Sunset dateRadiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000 / 1 October 2015
Radiocommunications (Transfer of Apparatus Licences) Determination 2000 / 1 October 2015
Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2005 / 1 October 2015
The ACMA has formed the preliminary view that each of these instrumentsis operating efficiently and effectively and, as such, continues to form a necessary and useful part of the legislative framework.
The ACMA considers that further efficiencies will be achieved by combining the Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000 and the Radiocommunications (Transfer of Apparatus Licences) Determination 2000. The ACMA considers that the instrumentsare similar in their purpose and that combining the content of the two instruments into one, consolidated instrument will benefit stakeholders.
The ACMA proposes to remake the instruments with only such minor, necessary changes as are referred to below, so that their ongoing effect is preserved. It is intended that the instruments will be retitled:
Radiocommunications (Limitation of Authorisation of Third Party Users and Transfer of Apparatus Licences) Determination 2014
Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2014.
Brief details of what the legislative instruments do
Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000
The Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000 (Third Party Users Determination) is made under section 115 of the Radiocommunications Act 1992 (the Act).
The purpose of the Third Party Users Determination is to specify the circumstances in which persons must not be authorised by apparatus licensees to operate radiocommunications devices. The circumstances where a licensee must not authorise another person to operate a radiocommunications device are as follows:
where the licensee is an exempt person[1], and the other person is not an exempt person
where the licensee is an eligible person[2], and the other person is not an eligible person or an exempt person
where the licence authorises the operation of a radiocommunications device for the provision of an international broadcasting service, and there is no International Broadcasting Licence (IBL) in force that authorises the provision of that service
the Australian Broadcasting Corporation (ABC) or the Special Broadcasting Service Corporation (SBS), as licensee of an apparatus licence, must not authorise another person to operate a radiocommunications device under that licence if the other person intends to provide aninternational broadcasting service[3] or a broadcasting service within Australia[4]
where the licence authorises the licensee to operate a radiocommunications device that is used in the provision of an exempt broadcasting service, andthe other person intends to use the device for a purpose other than the provision of an exempt broadcasting service[5].
The instrument has the effect of ensuring that a person cannot use the secondary market to obtain authorisation to operate a device under an apparatus licence, where they would not have been granted the licence by the ACMA had they applied for it.
Radiocommunications (Transfer of Apparatus Licences) Determination 2000
The Radiocommunications (Transfer of Apparatus Licences) Determination 2000 (Transfer of Apparatus Licences Determination) is made under section 131AC of the Act.
The purpose of the Transfer of Apparatus Licences Determination is to specify the types of apparatus licences and the specified circumstances in which an apparatus licence is not transferable under Part 3.3 Division 8 of the Act.The circumstances where a licensee must not transfer an apparatus licence to another person are as follows:
where the licensee is an exempt person, and the other person is not an exempt person
where the licensee is an eligible person, and the other person is not an eligible person or an exempt person
where the licensee is authorised to operate a radiocommunications device for theprovision of an international broadcasting service, and there is no relevant international broadcasting licence (IBL) in force in relation to the proposed international broadcasting service
an apparatus licence that authorises the ABC or SBS to provide a broadcasting service to locations outside Australia is not transferable if the proposed transferee intends to operate a radiocommunciations device under the licence to provide an international broadcasting serviceor a broadcasting service within Australia
where the licence authorises the licensee to operate a radiocommunications device that is used in an exempt broadcasting service, and the proposed transferee intends to use the device for a purpose other than the provision of an exempt broadcasting service.
The Transfer of Apparatus Licence Determination has the effect of ensuring that a person cannot use the secondary market to obtain an apparatus licence that they would not otherwise be granted through primary legislation had they applied to the ACMA for it.
Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2005
The Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2005 (Trading Rules for Defence Determination) is made under sections 86 and 88 of the Act.
The purpose of the Trading Rules for Defence Determination is to specify the rules for the trading by Defence of its 20 GHz band (20.2 GHz - 21.2 GHz) and 30 GHz band (30 GHz - 31 GHz) spectrum licences.
Spectrum in the 20 GHz band and 30 GHz band is specified (in the Australian Radiofrequency Spectrum Plan 2013) in all regions, for the purpose of fixed and mobile satellite services, space to Earth and Earth to space, respectively. By specifying the standard trading unit (STU) for Defence spectrum licences in the 20 GHz and 30 GHz bands, the instrument ensures that spectrum in those bands maintains compatibility with the technical frameworks for the spectrum licences, and remains usable for satellite communications in line with its allocated use.
The instrument prohibits Defence from trading in units less than the relevant STU. However, the instrument provides thatDefence may apply to the ACMA for a STU to be varied.
Proposed changes to the legislative instruments
Draft Radiocommunications (Limitation of Authorisation of Third Party Users and Transfer of Apparatus Licences) Determination 2014
The ACMA considers that the Third Party Users Determination and the Transfer of Apparatus Licences Determination are complementary, in that the instruments restrict the transfer of apparatus licences or third party authorisation for the operation of radiocommunications devices under an apparatus licence in similar circumstances.
For these reasons, the ACMA considers that the two instruments can be consolidated into a single instrument. The proposed new instrument would be titled“Radiocommunications (Limitation of Authorisation of Third Party Users and Transfer of Apparatus Licences) Determination 2014”.
In the consolidated instrument, the ACMA does not propose to amend the circumstances in which persons must not be authorised by apparatus licensees to operate radiocommunications devices, or the circumstances in which an apparatus licence is not transferable. The only changes proposed to be made are minor and machinery in nature and considered necessary for the purposes of revoking and replacing the extant instruments with a consolidated single instrument andto clarify the operation of certain provisions.
Other minor changes proposed are to:
replace references to legislative provisions, legislation or bodies which are outdated
update the name and commencement clauses
update definitions
rewording text for clarification or consistency.
The draft of the proposed consolidated instrumentis on the ACMA website.
Draft Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2014
The ACMA proposes to remake the Trading Rules for Defence Determination in its current form, without any significant changes, so that its ongoing effect is preserved.
The minor changes proposed are to:
replace references to legislation or legislative provisions which are outdated
insert a revocation clause, and update the name and commencement clauses
update definitions
rewording text for clarification orconsistency
remove unnecessary provisions
reword text to clarify the meaning of a ‘standard trading unit’.
The draft Trading Rules for Defence Determination is on the ACMA website.
Issues for comment
As discussed in this paper, the ACMA considers that these instruments continue to form a necessary and useful part of the legislative framework.
The ACMA proposes to remake the Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000 and the Radiocommunications (Transfer of Apparatus Licences) Determination 2000 into a single consolidated instrument before the sunset date referred to above, without any significant changes, so that the ongoing effect of the operative provisions of both instruments is preserved.
The ACMA welcomes comments from affected stakeholders on the ACMA’s proposal to remake the Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000 and the Radiocommunications (Transfer of Apparatus Licences) Determination 2000 into a single, consolidated instrumentand without any significant changes, on the basis that the instruments are operating efficiently and effectively.
The ACMA proposes to remake the Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2005 before the sunset date referred to above, without any significant changes, so that its ongoing effect is preserved.
The ACMA welcomes comments from affected stakeholders on the ACMA’s proposal to remake the Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2005 with the proposed minor amendments, and without any significant changes, on the basis that the instrument is operating efficiently and effectively.
The ACMA will carefully consider any submissions received on issues raised in this paper. The ACMA will not provide a formal response to submissions but will provide links to submissions on its website.
Making a submission
Submissions should be directed to:
By email:
By mail:Manager
Spectrum Licensing Policy Section
The Australian Communications and Media Authority
PO BOX 78
Belconnen ACT 2616
The closing date for submissions is 7 December 2014.
Each submission should specify:
the name of the individual or organisation making the submission
their contact details (such as a telephone number, postal address or email address).
A submitter may claim confidentiality over their name or contact details (seePublication of submissions below) or may make a submission anonymously or through use of a pseudonym(see Privacy below).
Effective consultation
The ACMA is committed to ensuring the effectiveness of its stakeholder consultation processes, which are an important source of evidence for its regulatory development activities. To assist stakeholders in formulating submissions to its formal, written consultation processes, it has developed the following guide: Effective consultation: A guide to making a submission. This guide provides information about the ACMA’s formal, written, public consultation processes and practical guidance on how to make a submission.
Publication of submissions
In general, the ACMA publishes all submissions it receives, including any personal information in the submissions (such as names and contact details of submitters).The ACMA prefers to receive submissions which are not claimed to be confidential. However, the ACMA accepts that a submitter may sometimes wish to provide information in confidence. In these circumstances, submitters are asked to identify the material (including any personal information) over which confidentiality is claimed and provide a written explanation for the claim.The ACMA will consider each confidentiality claim on a case-by-case basis. If the ACMA accepts a claim, it will not publish the confidential information unless authorised or required by law to do so.
Release of submissions where authorised or required by law
Any submissions provided to the ACMA may be released under the Freedom of Information Act 1982 (unless an exemption applies) or shared with other Australian Government agencies and certain other parties under Part 7A of the Australian Communications and Media Authority Act 2005. The ACMA may also be required to release submissions for other reasons including for the purpose of parliamentary processes or where otherwise required by law (for example, under a court subpoena). While the ACMA seeks to consult submitters of confidential information before that information is provided to another party, the ACMA cannot guarantee that confidential information will not be released through these or other legal means.
Privacy
The Privacy Act 1988 imposes obligations on the ACMA in relation to the collection, security, quality, access, use and disclosure of personal information. These obligations are detailed in the Australian Privacy Principles that apply to organisations and Australian Government agencies.
The ACMA may only collect personal information if it is reasonably necessary for, or directly related to, one or more of its functions or activities.
The purposesfor which personal information is being collected (such as the names and contact details of submitters) are to:
contribute to the transparency of the consultation process by clarifying, where appropriate, whose views are represented by a submission
enable the ACMA to contact submitters where follow-up is required or to notify them of related matters (except where submitters indicate they do not wish to be notified of such matters).
The ACMA will not use the personal information collected for any other purpose, unless the submitter has provided their consent or the ACMA is otherwise permitted to do so under the Privacy Act.
Submissions in response to this paper are voluntary. As mentioned above, the ACMA generally publishes all submissionsit receives, including any personal information in the submissions. If a submitter has made a confidentiality claim over personal information which the ACMA has accepted, the submission will be published without that information.The ACMA will not release thepersonal information unless authorised or required by law to do so.
If a submitter wishes to make a submission anonymously or through use of a pseudonym, they are asked to contact the ACMA to see whether it is practicable to do so in light of the subject matter of the consultation. If it is practicable, the ACMA will notify the submitter of any procedures that need to be followed and whether there are any other consequences of making a submission in that way.
Further information on the Privacy Act and the ACMA’s privacy policy is available at The privacy policy contains details about how an individual may access personal information about them that is held by the ACMA, and seek the correction of such information. It also explains how an individual may complain about a breach of the Privacy Act and how the ACMA will deal with such a complaint.
acma | 1[1]“Exempt person” means a person who is exempt, under regulation 5 of the Radiocommunications Taxes Collection Regulations 1985, from the payment of tax in respect of apparatus licenses.
[2]“Eligible person” in defined in the Radiocommunications (Transmitter Licence Tax) Determination 2003 (No. 2).
[3]“International broadcasting service” is defined in section 18A of the Broadcasting Services Act 1992.
[4]In remaking the Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000, the ACMA is proposing to amend subsection 5(4) such that the apparatus licences the subject of the provision are those used to provide “broadcasting service[s] to locations outside of Australia”. This proposed amendment is to clarify the operation of the provision such that it more accurately reflects the intention set out in the Explanatory Statement to theRadiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000and also to align the drafting of subsection 5(4) with the equivalent provision at subsection 5(4) of theRadiocommunications (Transfer of Apparatus Licences) Determination 2000.
[5]“Exempt broadcasting service” is defined in subsection 18A(3) of the Broadcasting Services Act 1992.