EXPLANATORY STATEMENT
Issued by the Australian Communications and Media Authority
Radiocommunications (Datacasting Transmitter Licence Allocation) Revocation Determination 2012
Radiocommunications Act 1992
Purpose
The Radiocommunications (Datacasting Transmitter Licence Allocation) Revocation Determination 2012 (the Determination) revokes the Radiocommunications (Datacasting Transmitter Licence Allocation) Determination 2001.
Legislative Provisions
The Determination is made under section 106 of the Radiocommunications Act 1992 (the Act). Under section 106, the Australian Communications and Media Authority (the ACMA) may determine, in writing, a price-based allocation system for allocating and/or issuing specified transmitter licences.
Subsection 33(3) of the Acts Interpretation Act 1901 provides that:
[w]here an Act confers a power to make, grant or issue any instrument of a legislative or administrative character [...] 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.
Background
In January 2001, the Australian Communications Authority (the ACA) made, under section 106 of the Act, the Radiocommunications (Datacasting Transmitter Licence Allocation) Determination 2001 (the 2001 Determination).
The 2001 Determination provides a system for the allocation (by auction) of apparatus licences which, if allocated and issued, would authorise the operation of transmitters (using channels in the 533-826 MHz band) for the purpose of providing datacasting services in geographic areas across Australia.
The 2001 Determination was made in anticipation of a datacasting transmitter licence allocation that was scheduled to occur on 21 May 2001. However, the ACA was directed by the then Minister, on 9 May 2001, to cancel that auction. The power to direct the ACA in such a manner is conferred on the Minister by section 4.27 of the 2001 Determination.
The 2001 Determination was registered on the Federal Register of Legislative Instruments on 28 April 2005 and remains current.
In 2006, Parliament passed the Broadcasting Legislation Amendment (Digital Television) Act 2006 which amended the Act and the Broadcasting Services Act 1992 to provide for the allocation of two new types of datacasting transmitter licences on unallocated television channels across Australia (known as “channel A datacasting transmitter licences” and “channel B datacasting transmitter licences”). To ensure that the licence allocation system for the channel A and channel B datacasting transmitter licences were not affected by the allocation system set out in the 2001 Determination, the then Minister directed the ACMA to revoke the 2001 Determination (by way of the Radiocommunications (Datacasting Transmitter Licence Limits) Direction No. 1 of 2007 (the Minister’s direction)). The ACMA has not yet revoked the 2001 Determination.
The Minister has since directed the ACMA to clear parts of the broadcasting services bands for the purposes of the digital dividend (Australian Communications and Media Authority (Realising the Digital Dividend) Direction 2010).
The ACMA must revoke the 2001 Determination in accordance with the Minister’s direction. It is appropriate to do so at this time because the spectrum in the digital dividend covers, in part, the spectrum which was the subject of apparatus licences to be allocated under the 2001 Determination.
Operation
The Determination makes provision for the revocation of the 2001 Determination.
Consultation
No consultation has been undertaken on the revocation of the 2001 Determination. The Minister’s direction requires the ACMA to revoke the 2001 Determination, and has been publicly available since it was registered on the Federal Register of Legislative Instruments in 2007. The ACMA has also consulted widely on proposals to allocate the digital dividend spectrum by allocating spectrum licences, which would prevent the allocation of at least some apparatus licences under the 2001 Determination. The ACMA has not been made aware of any concerns regarding the Minister’s direction, and is not intending to conduct any allocations of datacasting transmitter licences under the 2001 Determination.
Regulation Impact
The ACMA consulted with the Office of Best Practice Regulation (the OBPR) on the requirement for a Regulation Impact Statement (RIS) for the Determination. The OBPR advised that the Determination (OBPR issue reference ID 14370) does not warrant the preparation of a RIS.
Documents incorporated into the Determination by reference or otherwise referred to
The Determination incorporates the following documents by reference, or otherwise refers to them:
> Radiocommunications Act 1992
> Radiocommunications (Datacasting Transmitter Licence Allocation) Determination 2001
These instruments and Acts can be found on the Australian Government’s ComLaw website (http://www.comlaw.gov.au/).
Detailed Description of the Instrument
Details of the instrument are in Attachment A.
Statement of Compatibility with Human Rights
In accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the ACMA has prepared a Statement of Compatibility with Human Rights (the Statement of Compatibility) to consider the human rights implications of the Determination. The Statement of Compatibility concludes that the content of this legislative instrument does not raise any human rights issues, and is therefore regarded as being compatible with human rights. The Statement of Compatibility prepared for this instrument is provided in Attachment B.
ATTACHMENT A
detailed description of the instrument
Section 1 Name of instrument
This section names the Determination as the Radiocommunications (Datacasting Transmitter Licence Allocation) Revocation Determination 2012.
Section 2 Commencement
This section provides that the Determination commences on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 Revocation
This section states that the Radiocommunications (Datacasting Transmitter Licence Allocation) Determination 2001 is revoked.
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Radiocommunications (Datacasting Transmitter Licence Allocation) Revocation Determination 2012
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Radiocommunications (Datacasting Transmitter Licence Allocation) Revocation Determination 2012 (the Determination) revokes the Radiocommunications (Datacasting Transmitter Licence Allocation) Determination 2001 (the 2001 Determination).
The 2001 Determination was made in anticipation of a datacasting transmitter licence allocation (by auction) that was scheduled to occur on 21 May 2001. However, the Australian Communications Authority was directed by the then Minister, on 9 May 2001, to cancel that auction.
The 2001 Determination was registered on the Federal Register of Legislative Instruments on 28 April 2005 and remains current.
In 2007, the Minister directed the ACMA to revoke the 2001 Determination (by way of the Radiocommunications (Datacasting Transmitter Licence Limits) Direction No. 1 of 2007 (the Minister’s direction)). The ACMA has not yet revoked the 2001 Determination.
The Minister has since directed the ACMA to clear parts of the broadcasting services bands for the purposes of the digital dividend (Australian Communications and Media Authority (Realising the Digital Dividend) Direction 2010).
The ACMA must revoke the 2001 Determination in accordance with the Minister’s direction. It is appropriate to do so at this time because the spectrum in the digital dividend covers, in part, the spectrum which was the subject of apparatus licences to be allocated under the 2001 Determination.
Human Rights Implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.