Explanatory Statement
Issued by the authority of the Minister for Communications, Urban Infrastructure, Cities and the Arts
Radiocommunications Act 1992
Radiocommunications (Issuing of Certificates and Charging of Fees) Rules 2021
Purpose
The Radiocommunications (Issuing of Certificates and Charging of Fees) Rules 2021 authorise persons holding a kind of accreditation under the Radiocommunications Accreditation (General) Rules 2021 (Accreditation Rules) to issue technical certificates mentioned in certain sections of the Radiocommunications Act 1992 and to charge a fee for issuing such a certificate. The Rules give effect to amendments made to the Radicommunications Act in 2020 as part of reforming the spectrum management legislative framework.
Authority
The Radiocommunications Act provides for matters including the management of radiofrequency spectrum through the planning, allocation and licensing of spectrum.
Subsection 313B(1) of the Radiocommunications Act authorises the Minister to make legislative rules prescribing matters:
(a) required or permitted by the Act to be prescribed by the legislative rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Subsection 313B(4) states that the legislative rules may make provision in relation to a matter by conferring a power to make a decision of an administrative character on a person who holds a specified kind of accreditation.
Subsection 313B(5) states that the legislative rules may authorise a person who holds a specified kind of accreditation to charge fees in relation to the exercise by the person of a power conferred by the legislative rules. However, a fee must not be such as to amount to taxation.
The Rules set out provisions that give effect to subsections 313B(4) and 313B(5).
Background
In 2015, the then Department of Communications conducted a review (the Spectrum Review) of the policy and regulatory changes that were needed to cope with the increase in demand for spectrum and changes in technology, markets and consumer preferences since 1992.
Following Government consideration of the review, the Act was amended in 2020 by the Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020, which implemented recommendations of the Spectrum Review, including by simplifying regulatory structures and streamlining regulatory processes.
Under the Act, a person using spectrum for radiocommunication must have either a spectrum licence or an apparatus licence subject to specific exemptions and exceptions. As part of the information ACMA considers in deciding whether to issue a licence are technical certificates that can only be issued by a person that holds an accreditation given to them by ACMA.
Schedule 5 of the Reform and Modernisation Act amended the Act to expand ACMA’s power to devolve functions to accredited persons. It allows ACMA to develop accreditation rules, determine the conditions of accreditation and the processes and necessary qualifications to be applied in the granting of different categories of accreditation.
Under the Accreditation Rules, ACMA may give a person one of the following kinds of accreditation:
- a General Licensing Accreditation specified in paragraph 7(1)(a) of the Accreditation Rules; or
- a Specific Licensing Accreditation specified in paragraph 7(1)(b) of the Accreditation Rules 2021.
The Rules provides that a person holding a General Licensing Accreditation is given the power to issue frequency assignment certificates mentioned in subsections 60(7A) and 100(4A) of the Act and interference impact certificates mentioned in subsection 145(3).
The Rules provides that a person holding a Specific Licensing Accreditation is given the power to issue frequency assignment certificates mentioned in subsection 100(4A) of the Act, in relation to specified types of apparatus licence.
The Rules allow for a person holding an accreditation to charge a fee for issuing a certificate. Any fee charged must not be such as to amount to taxation. The Rules do not set a minimum or maximum fee, or any guidance for the amount of the fee.
Regulation Impact Statement
In 2015, the Spectrum Review was certified by the Department as an independent review for the purposes of assessing regulatory impacts. The Spectrum Review has been certified as an independent review for RIS purposes (OBPR ref:19096). The amendments in the Rules give effect to the recommendations of the Spectrum Review.
Consultation
ACMA was consulted on, and supports, the amendments made by the Rules.
The measures in the Rules are consequential in nature to the amendments contained in the Reform and Modernisation Act and the Accreditation Rules. An exposure draft of the Reform and Modernisation Bill was subject to public consultation from 24 June 2020 through to 17 July 2020, with feedback received as part of the consultation considered in the development of the final Bill.
Submissions received during the public consultation represented a wide variety of industry and government bodies. Stakeholders were especially supportive of the provisions of the Bill that serve to improve flexibility in decision-making and enforcement options for ACMA.
Most submissions provided suggestions for how the Bill could be amended to function better, or proposed additional reforms for the Government to consider as part of the Bill. A large number of recommendations related to ACMA’s enhanced powers under the Bill, proposing increased guidance on how ACMA intends to exercise these powers, further consultation and reporting requirements, and in some instances limitations on the use of powers. Many other recommendations were specific to an individual stakeholder’s sector or interests.
In response to the feedback generated by submissions, the Government made a number of changes to the Bill and provided further clarification on the operation of the Bill in the explanatory materials. Key among these responses were:
- implementation of limitations on ACMA’s power to unilaterally vary the renewal statements of spectrum licences;
- extension of the Defence related exemptions under the Act; and
- further consideration of comments around guidance from ACMA on how it will exercise its powers in the implementation of the reforms.
ACMA also conducted public consultation on the Accreditation Rules prior to making that instrument.
Noting the consultation on the Bill and the support of stakeholders for the amendments, and the purpose of the Rules to give effect to the Bill, and ACMA’s open consultation process for the Accreditation Rules, it is considered that appropriate consultation has been undertaken to in accordance with the requirement of section 17 of the Legislation Act 2003.
Notes on Sections
Part 1 - Preliminary
Section 1 – Name of instrument
This section provides that the name of the instrument is the Radiocommunications (Issuing of Certificates and Charging of Fees) Rules 2021.
Section 2 – Commencement
This section provides that the instrument commences on the later of three days: on the day of the commencement of Schedule 5 to the Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020, the day after the Radiocommunications Accreditation (General) Rules 2021 is registered on the Federal Register of Legislation, or the day after the day that the instrument is registered on the Federal Register of Legislation. The Federal Register of Legislation may accessed online at www.legislation.gov.au.
Section 3 – Authority
This section provides that the instrument is made under section 313B of the Radiocommunications Act 1992, which provides the Minister with the power to make Legislative Rules.
Section 4 – Definitions
This section sets out a number of definitions for the purposes of the instrument. The section notes that a number of expressions used in the instrument, such as interference and spectrum, are defined in the Radiocommunications Act 1992.
The term ‘accredited person’ is defined to mean a person who holds either a ‘General Licensing Accreditation’ or a ‘Specific Licencing Accreditation’.
A General Licensing Accreditation is defined to mean the kind of accreditation specified in paragraph 7(1)(a) of the Radiocommunications Accreditation (General) Rules 2021.
A Specific Licensing Accreditation is defined to mean the kind of accreditation specified in paragraph 7(1)(b) of the Radiocommunications Accreditation (General) Rules 2021.
The term ‘frequency assignment certificate’ is defined to mean, in relation to a spectrum licence, a certificate issued under procedures determined under subsection 60(1) of the Act and for the purpose set out in subsection 60(7A) of the Act. In relation to an apparatus licence, the term is defined to mean a certificate mentioned in subsection 100(4A) of the Act.
The term ‘interference impact certificate’ is defined to mean a certificate mentioned in subsection 145(3) of the Act.
The term ‘specified type of licence’ is defined to mean the single type of transmitter or receiver licences specified in the instrument of accreditation given to a person, in accordance with subsection 7(2) of the Radiocommunications Accreditation (General) Rules 2021.
Section 5 – References to other instruments
This section provides that, unless the contrary intention appears, a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time, and a reference to any other kind of instrument or writing is a reference to that other instrument or writing as in force or existing from time to time. This section also refers to section 10 of the Acts Interpretation Act 1901 for references to Commonwealth Acts and subsection 13(1) of the Legislation Act 2003 for the application of the Acts Interpretation Act 1901 to legislative instruments. All Commonwealth Acts and legislative instruments are registered on the Federal Register of Legislation.
Section 314A of the Act also enables legislative instruments made under the Radiocommunications Act to incorporate matter contained in an instrument or any other form of writing as amended from time to time. Currently, there are no such instruments referred to in these Rules. In the event that the Rules are amended to refer to such an instrument, details on the policy justification for incorporating an instrument or other writing in that way, including details on where that document can be located by affected persons.
Part 2 – Powers of Accredited Persons
Section 6 – Power to issue certificates
Subsection 6(1) provides that a person who holds a General Licensing Accreditation may issue frequency assignment certificates and interference impact certificates for a number of purposes.
Subsection 6(1)(a) provides that a person who holds a General Licensing Accreditation may issue a frequency assignment certificate mentioned in subsection 60(7A) of the Act as part of ACMA’s procedures for the direct allocation of a spectrum licence.
Subsection 6(1)(b) provides that a person who holds a General Licensing Accreditation may issue a frequency assignment certificate mentioned in subsection 100(4A) of the Act as part of ACMA’s procedures for issuing an apparatus licence.
Subsection 6(1)(c) provides that a person who holds a General Licensing Accreditation may issue an interference impact certificate mentioned in subsection 145(3) of the Act as part of ACMA’s procedures for the registration of a radiocommunications transmitter.
Subsection 6(2) provides that a person who holds a Specific Licensing Accreditation may issue a frequency assignment certificate mentioned in subsection 100(4A) of the Act as part of ACMA’s procedures for issuing an apparatus licence for a specified type of licence to which the Specified Licensing Accreditation relates.
Subsection 6(3) provides that subsection 6(2) does not limit subsection 6(1).
Section 7 – Power to charge fees
Section 7 enables an accredited person to charge fees for the issuing a certificate mentioned in a subsection. Section 7 also notes that any fee charged under this section must not be such to amount to taxation.
Subsection 7(1) provides that a person who holds a General Licensing Accreditation may charge a fee in relation to the exercise of some of their powers.
Subsection 7(1)(a) provides that a person who holds a General Licensing Accreditation may charge a fee for issuing a frequency assignment certificate mentioned in subsection 100(4A) of the Act as part of ACMA’s procedures for issuing an apparatus licence.
Subsection 7(1)(b) provides that a person who holds a General Licensing Accreditation may charge a fee for issuing an interference impact certificate mentioned in subsection 145(3) of the Act as part of ACMA’s procedures for the registration of a radiocommunications transmitter.
Subsection 7(2) provides that a person who holds a Specific Licensing Accreditation may charge a fee for issuing a frequency assignment certificate mentioned in subsection 100(4A) of the Act as part of ACMA’s procedures for issuing an apparatus licence for a specified type of licence to which the Specified Licensing Accreditation relates.
Accredited persons generally provide services to licensees and assist licensees in their application for a licence as part of a suite of commercial consulting services that they offer to the licensee. As accredited persons, the information that they provide to ACMA, such as a frequency assignment certificate to support an application for an apparatus licence, is used by ACMA to assist it in the decision it makes under the Act.
Neither ACMA nor the Commonwealth will be a party to such contracts between licensees and accredited persons. As a part of providing commercial services, it is appropriate that the Rules permit the charging of fees for these services, however it is not appropriate to govern how the amount of the fee will be charged (other than it must not amount to taxation).
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Radiocommunications (Issuing of Certificates and Charging of Fees) Rules 2021
This Disallowable 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 Disallowable Legislative Instrument
The Radiocommunications (Issuing of Certificates and Charging of Fees) Rules 2021 authorise persons holding a kind of accreditation under the Radiocommunications Accreditation (General) Rules 2021 (Accreditation Rules) to issues technical certificates mentioned in certain sections of the Radiocommunications Act 1992 and to charge a fee for issuing such a certificate. The Rules give effect to amendments made to the Radicommunications Act in 2020 as part of reforming the spectrum management legislative framework.
Human rights implications
This Disallowable Legislative Instrument does not engage any of the applicable rights or freedoms.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
The Hon Paul Fletcher MP
Minister for Communications, Urban Infrastructure, Cities and the Arts