EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Radiocommunications Act 1992
Radiocommunications Accreditation (Transition) Rules 2021
Authority
The Australian Communications and Media Authority (the ACMA) has made the Radiocommunications Accreditation (Transition) Rules 2021 (the instrument) under item 29 of Schedule 5 to the Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020 (the Reform Act).
Item 29 of Schedule 5 to the Reform Act provides that the ACMA may, by legislative instrument, make rules (transitional accreditation rules) prescribing matters required or permitted by Part 2 of Schedule 5 to the Reform Act.
Purpose and operation of the instrument
The Accredited Persons scheme (AP scheme) was established in 1996 by one of the ACMA’s predecessor agencies, the Australian Communications Authority, using its powers in Part 5.4 of the Radiocommunications Act 1992 (the Act). The broad objective of the scheme is to improve the efficiency of spectrum management by devolving specific activities to accredited persons. Accredited persons perform frequency assignment, coordination and registration activities, namely:
- the issue of Frequency Assignment Certificates (FACs), which state that the operation of a radiocommunications device on a proposed frequency would satisfy any conditions set out in a determination made by the ACMA; and
- the issue of Interference Impact Certificates (IICs), which state that the operation of a radiocommunications device proposed to be registered in relation to a spectrum licence satisfies any conditions set out in a determination made by the ACMA.
The AP scheme is a critical element of the ACMA’s licensing framework. The technical coordination and frequency assignment required for approximately 98% of all apparatus licences issued by the ACMA is undertaken by accredited persons. The technical coordination and interference assessment required for all spectrum licence device registrations is undertaken by accredited persons.
The Radiocommunications (Accreditation – Prescribed Certificates) Principles 2014 (the Accreditation Principles), made under subsection 266(1) of the Act, specify the kinds of accreditations that may be given by the ACMA under Part 5.4 of the Act.
Schedule 5 to the Reform Act will repeal and replace provisions in Part 5.4 of the Act. Relevantly, section 266 of the Act will be replaced by a provision enabling the ACMA to make ‘accreditation rules’. Because the Reform Act does not include transitional provisions for the Accreditation Principles, the effect of the changes will be that, upon commencement of Schedule 5 to the Reform Act, the Accreditation Principles will no longer have effect. To support the AP scheme, the ACMA must make accreditation rules. The ACMA has made the Radiocommunications Accreditation (General) Rules 2021 (the Accreditation Rules) for this purpose.
Item 26 of Schedule 5 to the Reform Act does provide for the continuity of accredited persons’ accreditation if the ACMA makes transitional accreditation rules. The instrument ensures that accredited persons accredited in accordance with the Accreditation Principles will continue to be accredited under the Act. The instrument identifies which kinds of accreditation, specified in the Accreditation Principles, are taken to correspond with kinds of accreditation specified in the Accreditation Rules, for the purposes of item 26.
A provision-by-provision description of the instrument is set out in the notes at Attachment A.
The instrument is a disallowable legislative instrument for the purposes of the Legislation Act 2003 (the LA).
Documents incorporated by reference
The instrument incorporates by reference the following Acts and legislative instruments:
• the Accreditation Principles;
• the Accreditation Rules;
• the Act;
• the Reform Act.
The Acts and legislative instruments listed above can be accessed, free of charge, from the Federal Register of Legislation: www.legislation.gov.au.
In accordance with section 14 of the LA, each of the above Acts or instruments is incorporated as in force at the time that Schedule 5 to the Reform Act commences, save for the Accreditation Principles, which are incorporated as in force immediately before the commencement of Schedule 5 to the Reform Act.
Consultation
Before the instrument was made, the ACMA was satisfied that consultation was undertaken to the extent appropriate and reasonably practicable, in accordance with section 17 of the LA.
Public consultation was conducted on the instrument from 9 March 2021 to 6 April 2021. A consultation paper and the draft instrument, along with other draft instruments related to the AP scheme, were published on the ACMA website and key stakeholders were invited to comment. Nine submissions were received on the draft instruments related to the AP scheme. Three of these submissions addressed the instrument: two were supportive, but the third proposed that none of the draft instruments relating to the AP scheme be made, as the submitter did not agree with two proposals that were introduced by one of the instruments.
The ACMA has decided to make the instruments related to the AP scheme. No changes were made to the instrument as a result of the consultation.
Regulatory impact assessment
The Office of Best Practice Regulation (OPBR) has confirmed that the Review of the Radiofrequency Spectrum Management Framework undertaken by the then Department of Communications and the Arts (the Department), in conjunction with the ACMA, and certified by the Department, meets the requirements of a Regulation Impact Statement (RIS).
OBPR advised the ACMA that, for instruments which are designed to maintain existing arrangements under the Act, and which are implemented as part of the Reform Act, no further RIS is required so long as the ACMA provided a copy of the instrument to OBPR before it was made (OBPR ID 43339). The ACMA provided a copy to OBPR on 1 June 2021.
Statement of compatibility with human rights
Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule-maker in relation to a legislative instrument to which section 42 (disallowance) of the LA applies to cause a statement of compatibility with human rights to be prepared in respect of that legislative instrument.
The statement of compatibility set out below has been prepared to meet that requirement.
Overview of the instrument
The instrument ensures that kinds of accreditation specified under the Accreditation Principles are taken to correspond to kinds of accreditation specified in the Accreditation Rules. In each case, the instrument provides that the relevant kind of accreditation specified under the Accreditation Principles will be taken to correspond with the General Licensing Accreditation specified in paragraph 7(1)(a) of the Accreditation Rules, as in force at the time that Schedule 5 to the Reform Act commences.
Human rights implications
The ACMA has assessed whether the instrument is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.
Having considered the likely impact of the instrument and the nature of the applicable rights and freedoms, the ACMA has formed the view that the instrument does not engage any of those rights or freedoms.
Conclusion
The instrument is compatible with human rights as it does not raise any human rights issues.
Attachment A
Notes to the Radiocommunications Accreditation (Transition) Rules 2021
Section 1 Name
This section provides for the instrument to be cited as the Radiocommunications Accreditation (Transition) Rules 2021.
Section 2 Commencement
This section provides for the instrument to commence at the same time as Schedule 5 to the Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020 (the Reform Act).
In accordance with section 4 of the Acts Interpretation Act 1901, the instrument may be made before Schedule 5 to the Reform Act commences, but does not take effect until that Schedule commences.
The Federal Register of Legislation may be accessed free of charge at www.legislation.gov.au.
Section 3 Authority
This section identifies the provision of the Reform Act that authorises the making of the instrument, namely item 29 of Schedule 5 to the Reform Act.
Section 4 Repeal of this instrument
This section provides that the instrument is repealed on the first anniversary of its commencement.
Section 5 Definitions
This section defines a number of key terms used throughout the instrument.
Section 6 Transition of existing accreditation
This section provides that it is made for the purposes of paragraph 26(1)(c) of Schedule 5 to the Reform Act, which allows the ACMA to specify that a kind of accreditation in force immediately before the commencement of Schedule 5 is taken to correspond to an accreditation of a specified kind that could be given under subsection 263(1) of the Act immediately after the commencement of Schedule 5. Subsection 263(2) of the Act (as in force immediately after the commencement of Schedule 5 to the Reform Act) provides that an accreditation is to be given in accordance with the accreditation rules made under section 266 of the Act (i.e., the Radiocommunications Accreditation (General) Rules 2021 (Accreditation Rules).
This section further provides that the kinds of accreditation specified in each of paragraphs 5(a), (b) and 5(c) of the Radiocommunications (Accreditation – Prescribed Certificates) Principles 2014 are taken, for the purposes of item 26 of Schedule 5, to correspond to the General Licensing Accreditation as defined in the Accreditation Rules. The effect of this is that any person who is accredited before the commencement of Schedule 5 is taken to have the General Licensing Accreditaiton, from the commencement of Schedule 5.