Explanatory Statement
Issued by the authority of the Minister for Communications, Urban Infrastructure, Cities and the Arts
Radiocommunications Act 1992
Customs Act 1910
Radiocommunications Legislation Amendment (Reform and Modernisation) Regulations 2021
Purpose
The purpose of the Radiocommunications Legislation Amendment (Reform and Modernisation) Regulations 2021 is to make consequential amendments to the Radiocommunications Regulations 1993 (the Regulations) and the Customs (Prohibited Imports) Regulations 1956 following amendments to the Radiocommunications Act 1992 (the Radiocommunications Act) by the Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020 (the Reform and Modernisation Act).
Authority
The Radiocommunications Act provides for matters including the management of radiofrequency spectrum through the planning, allocation and licensing of spectrum.
Section 314 of the Act provides that the Governor‑General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The Regulations are a legislative instrument for the purposes of section 8 of the Legislation Act 2003.
The Customs Act 1901 (the Customs Act) concerns customs related functions and is the legislative authority that sets out the customs requirements for the importation and exportation of goods to and from Australia.
Subsection 270(1) of the Customs Act provides, in part, that the Governor‑General may make regulations not inconsistent with the Act prescribing all matters, which by the Act are required or permitted to be prescribed or as may be necessary or convenient to be prescribed for giving effect to the Act.
Section 50 of the Customs Act provides, in part, that the Governor-General may, by regulation, prohibit the importation of goods into Australia and that the power may be exercised by prohibiting the importation of goods absolutely or by prohibiting the importation of goods unless specified conditions or restrictions are complied with.
Subsection 33(3) of the Acts Interpretation Act 1901 relevantly provides that where an Act confers a power to make an instrument of a legislative character (including regulations) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions to repeal, rescind, revoke, amend, or vary any such instrument.
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 Reform and Modernisation Act, which implemented recommendations of the Spectrum Review, including by simplifying regulatory structures and streamlining regulatory processes.
The Reform and Modernisation Regulations amend the Regulations and Customs (Prohibited Imports) Regulations to give effect to the changes to the Act. In broad terms, the regulations repeal definitions and provisions that are no longer relevant or have been incorporated into the Act, specify the circumstances in which additional exemptions from the Act for defence matters will apply, and amend the prohibition on the import of radiocommunications equipment to reflect changes in terminology in the Act and the introduction of additional powers for the Australian Communications and Media Authority (ACMA), to grant exemptions under the Act.
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 Reform and Modernisation Regulations give effect to the recommendations of the Spectrum Review.
Consultation
The Department of Home Affairs, the Department of Defence and ACMA were consulted on, and support, the amendments made by the regulations.
The measures in these regulations are consequential in nature to the amendments contained in the Reform and Modernisation Act. 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.
Noting the consultation on the Bill and the support of stakeholders for the amendments, and the purpose of the regulations to give effect to the Bill, 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 Regulations
Regulation 1 – Name of instrument
This regulation provides that the name of the instrument is the Radiocommunications Legislation Amendment (Reform and Modernisation) Regulations 2021.
Regulation 2 – Commencement
This regulation provides that the instrument commences at the same time as the Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020 commences.
Regulation 3 – Authority
This regulation provides that the instrument is made under subsection 270(1) of the Customs Act 1901 and section 314 of the Radiocommunications Act 1992.
In addition, Subsection 33(3) of the Acts Interpretation Act 1901 relevantly provides that where an Act confers a power to make an instrument of a legislative character (including regulations) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions to repeal, rescind, revoke, amend, or vary any such instrument.
Regulation 4 – Schedules
This regulation amends or repeals each instrument specified in a Schedule to the instrument as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1 – Amendments
Part 1 – Main Amendments
Customs (Prohibited Imports) Regulations 1956
1 – Schedule 3 (table item 11)
This item amends item 11 of Schedule 3 of the Customs (Prohibited Imports) Regulations 1956 to reflect the change in terminology in the Act from ‘device’ to ‘equipment’ and the replacement of devices subject to a declaration under section 190 of the Act, which is repealed, with equipment that is subject to an interim or permanent ban. The regulations provide for an exemption to the prohibition if a determination is in force under subsection 27(2) or 302(2) of the Act 1992 that applies in relation to the person. The amendments do not change the kind of equipment that could be subject to the import prohibition, but reflect the amended provisions of the Act.
Radiocommunications Regulations 1993
2 - Subregulation 3(1)
This item repeals the definitions of ‘authorised person’, ‘base station’, ‘cellular mobile repeater’, ‘Chair’, ‘Distress, Urgency, Alarm and Safety Signals’, ‘examination’, and ‘facsimile’ as they are no longer used in the regulations, due to the amendments in these regulations and due to the amendments in the Reform and Modernisation Act.
3 – Subregulation 3(1) (definition of Interpretation Determination)
The ‘Interpretation Determination’ refers to the Radiocommunications (Interpretation) Determination 2015 (the Determination) which is made under subsection 64(1) of the Australian Communications and Media Authority Act 2005 The Determination contains a dictionary of expressions that apply to the determinations, plans and licences specified in the Determination. The Determination is updated periodically.
Item 4 amends the definition of ‘Interpretation Determination’ to refer to the most recent version of the Determination. The current ‘Interpretation Determination’ is the Radiocommunications (Interpretation) Determination 2015 which can be viewed and downloaded free of charge on the Federal Register of Legislation, as will all future versions of the Determination.
4 – Subregulation 3(1)
This item repeals the definitions ‘mobile station’, ‘penalty’ ‘public mobile telecommunications service’, ‘SOLAS’, ‘Telecommunications Convention’, and ‘telecommunications network’ because they are no longer used in the regulations, due to the amendments in these regulations and due to the amendments in the Reform and Modernisation Act.
5 – Subregulation 3(1) (note)
This item omits ‘aircraft, certificate, device, inspector, interference, licence, licensee, radiocommunication, transmitter and transmitter licence’ and substitutes ‘certificate and licence’. This is designed to remove references to definitions that are no longer used in the regulations, due to the amendments in these regulations and due to the amendments in the Reform and Modernisation Act.
6 – Subregulation 3(2) (note)
This item repeals the note to subregulation 3(2), to reflect that the terms referred to in the note are no longer used in these regulations, due to the amendments in these regulations and due to the amendments in the Reform and Modernisation Act.
7 – Regulation 6
This item repeals the regulation and substitutes a regulation that sets out the functions or duties that attract exemption from Parts 3.1, 4.1 and 4.2 of the Act under section 26.
The Reform and Modernisation Act amends section 26 of the Act to expand the classes of person to which the exemption applies to include, in addition to a member of the Defence Force and an officer of the Defence Department, a member of a visiting force, a member of a civilian component of a visiting force and an authorised defence supplier. The amendments also add ‘safety’ and ‘security’ to the existing purposes (being ‘military command and control’, ‘intelligence’ or ‘weapons systems’) to which a function or duty must relate in order for the act or omission to be exempt from the Act.
The substitute regulation sets out the functions and duties according to the class of person that are taken to be functions or duties that are related to a purpose set out in section 26. The terms are designed to encompass operations and activities that the Defence Department and Defence Force engage in related to these functions, including development, testing and training related activities.
8, 9, and 10 – headings of Part 3, Division 1 of Part 3 and Division 2 of Part 3
These items repeal the headings of Part 3, Division 1 of Part 3 and Division 2 of Part 3, as the provisions contained within this Part have previously been repealed.
11 –Parts 4 and 5
This item repeals Parts 4 and 5 which deal with examinations for certificates of proficiency, which are no longer used by ACMA, and the payment of penalties, as a consequence of the powers in Part 5 being replaced by new powers in the Act. These new powers involve ACMA inspectors being able to issue infringement notices using the standard provisions from the Regulatory Powers (Standard Provisions) Act 2014.
12 – Regulations 32A, 33, 36, 38A, 38B, 40, 42 and 45
This item repeals regulations in Part 6 of the Principal Regulations as a consequence of amendments to the Act dealing with datacasting transmitter licences, device labelling requirements, form of warrant, the definition of an eligible radiocommunications device, particulars to be kept for the supply of cellular mobile repeaters, power of inspectors to give directions, service of notices by facsimile transmission.
13 – After Part 6
This item inserts a transitional provision to save the appointment of authorised persons under the regulations, despite the repeal of regulation 42. These persons are authorised to issue infringement notices under the regulations, which will become a function of inspectors under the Act, following the amendments in the Reform and Modernisation Act, which adopt the infringement notice provisions of the Regulatory Powers (Standard Provisions) Act 2014. The appointment of authorised persons is saved so that infringement notices related to conduct occurring prior to the commencement of the Reform and Modernisation Act can continue to be managed, as provided for in Item 48 of Schedule 6 to the Reform and Modernisation Act.
14 – Schedules 1 and 4
This item repeals Schedule 1, Examinations as a result of Part 4 being repealed by item 12, and Schedule 4, form of warrant, as a consequence of regulation 36 being repealed by item 13. Regulation 36 specified the form of warrant for the purposes of the former section 269 of the Act which has been repealed.
Part 2 - Repeals
Radiocommunications (Coordination) Regulations
15 – The whole of the instrument
This item repeals the Radiocommunications (Coordination) Regulations. The regulations supported the allocation of specific multipoint distribution (MDS) licences in regional Australia under section 106 of the Act. ACMA no longer issues this type of apparatus licence and, as a consequence, the regulations are no longer required.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Radiocommunications Legislation Amendment (Reform and Modernisation) Regulations 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 Legislation Amendment (Reform and Modernisation) Regulations amend the Regulations and Customs (Prohibited Imports) Regulations to give effect to the changes to the Act. In broad terms, the regulations repeal definitions and provisions that are no longer relevant or have been incorporated into the amendments to the Act, specify the circumstances in which additional exemptions from the Act for defence matters will apply and amend the prohibition on the import of radiocommunications equipment to reflect changes in terminology in the Act and the introduction of powers for the Australian Communications and Media Authority (ACMA), to grant exemptions under the Act.
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