EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Radiocommunications Act 1992
Radiocommunications (Allocation of Transmitter Licences – High Powered Open Narrowcasting Licences) Amendment Determination 2022 (No.1)
Authority
The Australian Communications and Media Authority (the ACMA) has made the Radiocommunications (Allocation of Transmitter Licences – High Powered Open Narrowcasting Licences) Amendment Determination 2022 (No.1) (the instrument) under subsection 106(1) of the Radiocommunications Act 1992 (the Act). The instrument amends the Radiocommunications (Allocation of Transmitter Licences – High Powered Open Narrowcasting Licences) Determination 2014 (F2014L00426) (the Determination).
Under subsection 106(1) of the Act, the ACMA may determine, in writing, a price‑based allocation system for allocating and/or issuing specified transmitter licences. Paragraph 106(2)(c) provides that a system determined under subsection 106(1) may require the payment of an application fee.
Section 33 of the Acts Interpretation Act 1901 relevantly provides that where an Act confers powers to make a legislative instrument, the power shall be construed as including a power exercisable in the like manner, and subject to the like conditions (if any), to repeal, rescind, revoke, amend or vary any such instrument. The instrument amends the Determination.
Purpose and operation of the instrument
The Determination determines a price-based allocation system for the allocation of high powered open narrowcasting (HPON) licences. Prior to the amendment made by the instrument, section 9 of the Determination provided that the application fee payable for considering applications under the Determination was the charge fixed by the Radiocommunications (Charges) Determination 2017.
The instrument amends the Determination to make a minor consequential amendment to section 9 of the Determination, as a result of the revocation of the Radiocommunications (Charges) Determination 2017 and the making of the Radiocommunications (Charges) Determination 2022 (the Charges Determination). The purpose of the amendment is to update the reference in section 9 of the Determination to refer to the Charges Determination.
A provision-by-provision description of the instrument is set out in the notes at Attachment A.
The instrument is a legislative instrument for the purposes of the Legislation Act 2003 (the LA). Under section 10 of the Legislation (Exemption and Other Matters) Regulation 2015, section 42 of the LA (disallowance of legislative instruments) does not apply to the Determination which is made under subsection 106(1) of the Act.
According to the explanatory statement for the Legislation (Exemption and Other Matters) Regulation 2015 and the explanatory memorandum to the Legislative Instruments Bill 2003, exposure of determinations made under subsection 106(1) of the Act to disallowance could cause commercial delay or commercial uncertainty. The Determination involves the allocation of potentially valuable licences by auction. If the Determination were subject to disallowance, there is a potential for disruption to that allocation process, and to the legitimate plans of commercial entities participating in that process.
Documents incorporated by reference
The instrument incorporates the following Act and legislative instrument by reference, as in force from time to time:
· the Act; and
· the Radiocommunications (Charges) Determination 2022.
Commonwealth legislation can be accessed, free of charge, on the Federal Register of Legislation (http://www.legislation.gov.au).
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. Further, the ACMA consulted with the Australian Competition and Consumer Commission (ACCC) prior to making the instrument, in order to ensure that it complied with the requirements in section 106 of the Act. The ACCC indicated that it had no concerns with the proposed amendment to the Determination.
The ACMA consulted the public, including industry stakeholders, on the making of the instrument. Between 27 June 2022 and 25 July 2022, the ACMA conducted a consultation process inviting submissions on a number of proposed changes to fees for services determined under various cost recovery arrangements, including the Charges Determination. The consultation was facilitated through the release of a consultation package which included draft instruments and a draft Cost Recovery Implementation Statement (CRIS) on the ACMA’s website. As a part of that consultation, the ACMA noted that a consequential amendment would be made to the Determination.
The ACMA received five submissions in response to the consultation paper. None of the submissions related to the changes proposed in the instrument.
No changes were made to the instrument as a result of the consultation.
Regulatory impact assessment
A preliminary assessment of the proposal was conducted by the Office of Best Practice Regulation (OBPR) based on information provided by the ACMA for the purposes of determining whether a Regulation Impact Statement (RIS) would be required. OBPR considered that the proposal was unlikely to have more than a minor regulatory impact on business and advised that the preparation of a RIS was not required (see OBPR reference number 22-01877).
Statement of compatibility with human rights
The requirement to prepare a Statement of Compatibility with Human Rights only applies in respect of disallowable legislative instruments (see subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011).
The instrument is not subject to disallowance (see item 29 in the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015, made under paragraph 44(2)(b) of the LA).
Attachment A
Notes to the Radiocommunications (Allocation of Transmitter Licences – High Powered Open Narrowcasting Licences) Amendment Determination 2022 (No.1)
Section 1 Name
This section provides for the instrument to be cited as the Radiocommunications (Allocation of Transmitter Licences – High Powered Open Narrowcasting Licences) Amendment Determination 2022 (No. 1) (the instrument).
Section 2 Commencement
This section provides for the instrument to commence on the later of the start of the day after the day it is registered on the Federal Register of Legislation and immediately after the Radiocommunications (Charges) Determination 2022 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 that authorises the making of the instrument, namely subsection 106(1) of the Radiocommunications Act 1992.
Section 4 Amendment
This section provides that the Radiocommunications (Allocation of Transmitter Licences – High Powered Open Narrowcasting Licences) Determination 2014 (the Determination) is amended as set out in the Schedule.
Schedule – Amendment
Item 1 amends section 9 of the Determination to omit “2017”, and substitute “2022”. This amendment ensures that the provision refers to the correct instrument which fixes the charge for applications made under the Determination, namely, the Radiocommunications (Charges) Determination 2022 (Charges Determination). The Charges Determination, which commences on 1 October 2022, replaces the Radiocommunications (Charges) Determination 2017. The charge for the making of an application under the Determination ($471) is specified in item 2.3.1 of Schedule 1 to the Charges Determination. The explanatory statement to the Charges Determination provides more information about the application fee.