Radiocommunications Licence Conditions (PTS Licence) Amendment Determination 2005 (No. 1)

Administered by Department of Communications and the Arts

Legislation au F2005L00757 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Issued by the Authority of the Australian Communications Authority

 

Radiocommunications Licence Conditions (PTS Licence) Amendment

Determination 2005 (No. 1)

 

Radiocommunications Act 1992

 

Legislative Provisions

 

Paragraph 107(1)(f) of the Radiocommunications Act 1992 (the Act) allows the Australian Communications Authority (the ACA) to determine, by written instrument, conditions applicable to particular types of apparatus licences.

 

A Determination made under paragraph 107(1)(f) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

 

Purpose

 

This amendment to the Radiocommunications Licence Conditions (PTS Licence) Determination No. 1 of 1997 (the PTS LCD) added an inconsistency clause to clarify that, where a condition in an LCD is inconsistent with a special condition printed on a licence, the condition specified on the licence applies.

 

Background

 

The operation of radiocommunications equipment authorised by an apparatus licence is subject to:

  • conditions specified in the Act, including an obligation to comply with the Act;
  • a condition that any radiocommunications device operated under the licence must comply with all the standards applicable to it;
  • conditions specified in the Radiocommunications Licence Conditions (Apparatus Licence) Determination No. 1 of 1997 and any other determinations made by the ACA under paragraph 107(1)(f) of the Act;
  • conditions specified in the licence; and
  • any further conditions imposed by the ACA under section 111 of the Act.

 

Under paragraph 107(1)(f) of the Act, the ACA may determine, by written instrument, conditions relating to a particular type of apparatus licence.  These instruments are known as Licence Conditions Determinations (LCDs).  LCDs contain the generic conditions particular to various radiocommunications licence types and licensing options, including details of any common frequencies or frequency bands, permitted power levels, type of communications permitted, persons with whom the licensee is permitted to communicate, callsign usage and any other relevant transmission parameters.  Conditions applicable to the licence referred to in this explanatory statement are specified in the Radiocommunications Licence Conditions (Apparatus Licence) Determination 2003 and the Radiocommunications Licence Conditions (PTS Licence) Determination No. 1 of1997.

 

Any other conditions of operation which apply to an individual licence but are not included in the LCD, are printed on the licence under the heading ‘Special Conditions’.

Discussion of Issues

 

The Act does not provide direction on whether precedence is to be given to conditions in an LCD or to special conditions on an apparatus licence should there be an inconsistency between the two. The ACA currently has 16 LCDs in effect. Ten of these LCDs contain the following inconsistency clause to address this issue:

 

‘However, if a condition in this Determination is inconsistent with a condition specified in the licence, the condition specified in the licence applies.’

 

To avoid potential conflict between conditions in the LCDs and special conditions on licences and to be consistent, the PTS LCD has been amended with the addition of this clause.

 

Two other minor amendments have been included. For consistency in drafting conventions, the Radiocommunications Licence Conditions (PTS Licence) Determination No. 1 of 1997 has been renamed the Radiocommunications Licence Conditions (PTS Licence) Determination 1997. Additionally, the note in Subsection 3(1) has been amended to update the Instruments listed as a source for definitions of expressions used in this Determination.

 

The Radiocommunications Licence Conditions (PTS Licence) Amendment Determination 2005 (No. 1) commenced on registration.

 

Consultation

 

The ACA consulted with the Office of Regulation Review (ORR) who advised that a Regulation Impact Statement is not required for these amendments to the PTS LCD (ORR ID: 3857).  ORR noted that proposed amendments have no direct or significant indirect impact on business.

 

Further external consultation was not considered to be required as these amendments are of a minor and machinery nature. They are intended to clarify conditions for licence holders.

 

 

 

Details of the Determinations are set out in Attachments 1

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT 1

 

Notes about instrument

 

Section 1 Name of Determination 

 

Section 1 provides for the citation of the Determination.

 

Section 2 Commencement

 

Section 2 states the day on which the Determination has effect.

 

Section 3 Amendment of the Radiocommunications Licence Conditions (PTS Licence) Determination No.1 of 1997

 

Section 3 provides that Schedule 1 amends the Radiocommunications Licence Conditions (PTS Licence) Determination No.1 of 1997.

 

Schedule 1 Amendments

 

[1] Section 1

 

Item [1] amends the name of the LCD to the Radiocommunications Licence Conditions (PTS Licence) Determination 1997.

 

 [2] & [3] Section 2

 

Items [2] & [3] insert a new subsection to clarify that where there is any inconsistency between the provisions of the Radiocommunications Licence Conditions (PTS Licence) Determination 1997 and any condition specified in an individual licence, the condition that is specified in the licence is to be given precedence.

 

[4] Subsection 3(1), note

 

Item [4] updates the Acts listed as a source for definitions of expressions used in the Determination.

 

[5] Subsection 5 (2)

 

Item [5] substitutes ACA for SMA.

 

[6]  Paragraph 7 (b)

 

Item [6] substitutes ACA for SMA

 

[7] Paragraph 9 (b)

 

Item [7] substitutes ACA standards for AUSTEL standards

 

[8] Subparagraph 10 (b) (i) and (ii)

 

Item [8] substitutes ACA standards for AUSTEL standards

Overview

The Radiocommunications Licence Conditions (PTS Licence) Amendment Determination 2005 (No. 1) was introduced to address a gap in the Radiocommunications Act 1992 by providing clarity on the precedence between conditions specified in Licence Conditions Determinations (LCDs) and special conditions printed on individual licences. Enacted by the Australian Communications Authority (ACA) under the authority granted by the Radiocommunications Act 1992, the primary objective of this amendment was to ensure consistency and avoid potential conflicts between the generic conditions in LCDs and the specific conditions printed on individual apparatus licences. This was achieved by adding an inconsistency clause, clarifying that where a condition in an LCD is inconsistent with a special condition printed on a licence, the condition specified on the licence applies. This amendment aimed to streamline the application of conditions to radiocommunications equipment, thereby enhancing regulatory clarity for licence holders.

Scope and Application

The Radiocommunications Licence Conditions (PTS Licence) Amendment Determination 2005 (No. 1) applies to apparatus licences for radiocommunications equipment under the Radiocommunications Act 1992. Specifically, it amends the Radiocommunications Licence Conditions (PTS Licence) Determination No. 1 of 1997 to address inconsistencies between conditions specified in the Determination and special conditions printed on individual licences. The amendment clarifies that in the event of a conflict, the special condition on the licence takes precedence over the condition in the Determination. This amendment applies to all apparatus licences governed by the Radiocommunications Licence Conditions (PTS Licence) Determination 1997, which includes both personal and temporary telecommunications stations. The determination operates within the Commonwealth jurisdiction, and there are no exclusions or exemptions specified within the text of this amendment. The application and scope of the Act may be further extended or restricted through subordinate instruments, such as further Licence Conditions Determinations made by the Australian Communications Authority under section 107(1)(f) of the Act.

Key Provisions

The Radiocommunications Licence Conditions (PTS Licence) Amendment Determination 2005 (No. 1) brings specific amendments to the Radiocommunications Licence Conditions (PTS Licence) Determination No. 1 of 1997. Section 1 of the amendment renames the original determination as the Radiocommunications Licence Conditions (PTS Licence) Determination 1997 (Section 1). Section 2 specifies the commencement date of the amendment (Section 2). Section 3 details the amendments made to the original determination, as outlined in Schedule 1 (Section 3). Under Section 2 of Schedule 1, a new subsection is introduced to clarify the precedence of conditions in the event of inconsistency between the Radiocommunications Licence Conditions (PTS Licence) Determination 1997 and any condition specified on an individual licence. This amendment ensures that if there is any inconsistency between the conditions in the Determination and those specified on a licence, the condition specified on the licence takes precedence (Items [2] and [3], Section 2, Schedule 1). Additionally, Section 3(1) of the Determination is amended to update the list of Acts that provide definitions for expressions used within the Determination (Item [4], Subsection 3[1], Schedule 1). Other minor amendments include substituting references from SMA (Spectra Management Agency) to ACA (Australian Communications Authority) and AUSTEL standards to ACA standards across various subsections (Items [5] to [8], Schedule 1). The Act imposes several obligations on the parties involved. Licence holders must ensure that their operations comply with all conditions specified in the Act, any Radiocommunications Licence Conditions Determinations, and any special conditions printed on their licences. These conditions encompass compliance with all relevant standards, permitted power levels, frequency usage, and other technical parameters. Furthermore, licence holders must adhere to any additional conditions imposed by the ACA under section 111 of the Act. The amendments aim to clarify and streamline these obligations by ensuring that special conditions on individual licences take precedence over any conflicting conditions in the Determinations. Breaches of the conditions specified in the Act or in the licence determinations may result in various penalties and consequences. The Radiocommunications Act 1992 outlines several offences related to non-compliance, which may be subject to fines or other sanctions. For instance, operating a radiocommunications device in a manner that contravenes the Act or the licence conditions could lead to criminal charges. Additionally, the Australian Communications Authority has the authority to suspend or cancel a licence if a licence holder fails to comply with the conditions. The maximum penalties for such offences can vary, with potential fines and imprisonment terms stipulated in the Act for serious breaches.

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