EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Radiocommunications Act 1992
Radiocommunications (Charges) Amendment Determination 2021 (No.1)
Authority
The Australian Communications and Media Authority (the ACMA) has made the Radiocommunications (Charges) Amendment Determination 2021 (No.1) (the instrument) under subsection 60(1) of the Australian Communications and Media Authority Act 2005 (the ACMA Act) and subsection 33(3) of the Acts Interpretation Act 1901 (the AIA).
Subsection 60(1) of the ACMA Act provides that the ACMA may, by written instrument, make determinations fixing charges for services provided by the ACMA, and any matter in relation to which expenses are incurred by the ACMA under the ACMA Act, the Telecommunications Act 1997, the Telecommunications (Consumer Protection and Service Standards) Act 1999, the Radiocommunications Act 1992 (the Radiocommunications Act), the Broadcasting Services Act 1992, or any instrument made under one of these Acts (other than the ACMA Act), specifying the persons by whom, and the times when, the charges are payable.
Subsection 33(3) of the AIA relevantly provides that where an Act confers a power 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.
Purpose and operation of the instrument
The Radiocommunications (Charges) Determination 2017 (the Charges Determination) sets out the charges payable to the ACMA for expenses it incurs, and services it provides, in relation to the Radiocommunications Act. Charges must not be such as to amount to taxation. The Charges Determination sets out by whom and when a charge is payable, and in which circumstances.
As a result of the Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020 (the Reform Act), the ACMA has made new accreditation rules under section 266 of the Radiocommunications Act, as amended. The ACMA has made the Radiocommunications Accreditation (General) Rules 2021 (the Accreditation Rules), which effectively replace the Radiocommunications (Accreditation – Prescribed Certificates) Principles 2014 (the Accreditation Principles). The Accreditation Principles were made under section 266 of the Radiocommunications Act, as in force before the commencement of the Reform Act.
The Accreditation Rules govern the process by which the ACMA accredits people (APs) to perform specific activities under the Radiocommunications Act, a process that was previously governed by the Accreditation Principles (the AP scheme).
The Charges Determination includes charges relating to the AP scheme. To ensure that charges applicable to the AP scheme continue to apply after the Accreditation Rules commence, consequential minor amendments to the Charges Determination are required. Those amendments are discussed in more detail in 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 amends the Charges Determination to incorporate the Accreditation Rules and the Radiocommunications Act.
Acts and legislative instruments can be accessed, free of charge, from the Federal Register of Legislation: www.legislation.gov.au.
In accordance with section 14 of the LA and section 10 of the AIA, the Act and legislative instrument are incorporated as in force from time to time.
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 19 March 2021 to 16 April 2021. A draft instrument was published on the ACMA website and key stakeholders were invited to comment. One submission was received, which supported the proposed amendments.
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 a result 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 amends a small number of definitions and references in the Charges Determination to ensure that existing charges relating to the AP scheme continue to apply following the making of the Accreditation Rules.
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 (Charges) Amendment Determination 2021 (No.1)
Section 1 Name
This section provides for the instrument to be cited as the Radiocommunications (Charges) Amendment Determination 2021 (No.1).
Section 2 Commencement
This section provides for the instrument to commence on the later of the occurrence of the following events: the day after the day the instrument is registered on the Federal Register of Legislation, or when the Accreditation Rules commence.
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 ACMA Act that authorises the making of the instrument, namely subsection 60(1) of the ACMA Act.
Section 4 Amendments
This section provides that the instrument specified in Schedule 1 is amended as set out in the applicable items of the Schedule.
Schedule 1–Amendments
Radiocommunications (Charges) Determination 2017 (F2017L00328)
Item 1 Section 5, definition of accredited person
This item repeals the definition of accredited person, which is newly defined as a person who holds an accreditation of a kind specified in the Accreditation Rules.
Item 2 Section 5
This item inserts a definition for the term Accreditation Rules into section 5.
Item 3 Section 5, definition of frequency assignment certificate
This item repeals and substitutes the definition of frequency assignment certificate with a new definition which provides that frequency assignment certificates are certificates issued under section 100(4A) of the Act.
Item 4 Section 5
This item inserts a definition for the term General Licensing Accreditation into section 5. General Licensing Accreditation is defined by reference to its meaning in the Accreditation Rules.
Item 5 Part 10 of Schedule 2 (table item 10.4, column 2)
This item amends item 10.4 of Part 10 of Schedule 2 to the Charges Determination (which specifies the applicable charge for the issue of accreditations) by omitting the words ‘an accreditation of a particular kind’ and substituting ‘General Licensing Accreditation’, to reflect the terminology used in the Accreditation Rules to describe the new kind of accreditation that will be issued to APs.