EXPLANATORY STATEMENT
Issued by the Australian Communications and Media Authority
Radiocommunications (Limitation of Authorisation of Third Party Users) Amendment Determination 2011 (No. 1)
Radiocommunications Act 1992
Purpose
The purpose of the Radiocommunications (Limitation of Authorisation of Third Party Users) Amendment Determination 2011 (No. 1 (the Amendment) is to amend the Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000 (the Determination).
Legislative Provisions
Subsection 115(1) of the Radiocommunications Act 1992 (the Act) provides that the Australian Communications and Media Authority (the ACMA) may by written instrument, determine when third parties must not be authorised to operate radiocommunications devices under an apparatus licence. A determination made under subsection 115(1) may deal with the particular categories of apparatus licences, classes of persons, or circumstances in which a person must not be so authorised.
A determination made under subsection 115(1) of the Act is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LIA).
Subsection 33(3) of the Acts Interpretation Act 1901 provides that when an Act confers a power to make an instrument, that power shall, unless the contrary intention appears, be construed as including a power exercisable in a like manner and subject to like conditions, to amend that instrument.
Background
The original purpose of the Determination and the Radiocommunications (Third Party Use - Spectrum Licence) Rules 2000 (No. 2) (the Rules) requiring that third party authorisations be revocable at will was to clarify that third party authorisations did not become immutable parts of licence obligations, but rather remained commercial arrangements between the parties.
The majority of submissions made in response to recent public consultation carried out by the ACMA about the revocable at will provisions have stated that the revocable at will provisions are a barrier to trade. It has been argued that a potential acquirer of an authorisation does not have sufficient certainty in relation to the spectrum to make investment decisions, given that the authorisation may be cancelled at any time at the licensee’s discretion.
Removing a barrier to trade facilitates the ACMA’s second Principle for Spectrum Management, to enable and encourage spectrum to move to its highest value use or uses.
Operation
The amendment of the Determination together with the revocation of the Rules will remove the requirement that third party authorisations are revocable at will for, respectively, apparatus and spectrum licences.
The removal of this requirement removes a barrier to trade and creates greater certainty for authorisations. Previously the authorisation could only be granted on the basis that it could be cancelled at any time at the licensee’s discretion.
Consultation
On 8 October 2010 the ACMA released a public consultation paper entitled Third Party Authorisations in Spectrum and Apparatus Licences: Revocable at Will Provisions. The consultation paper was made available on the ACMA’s website for public comment and submissions until 8 November 2010.
The consultation paper sought comment on options to amend the revocable at will requirements imposed on third party authorisations of apparatus and spectrum licences.
Five submissions were received in response to the invitation for public comment. These were considered by the ACMA when making the Amendment.
Four of the submissions supported the removing the ‘revocable at will’ requirement. The revocable at will provisions were cited in the submissions as being a barrier to third party use of spectrum.
The fifth submission did not express a position on whether or not the revocable at will provisions constitute a barrier to trade. Rather, it requested that in the event of any changes to the Determination that limit or restrict the ability of an apparatus licensee to grant a third party an authorisation that is revocable at will, amateur licences be specifically excluded from any such restriction or limitation.
The ACMA is satisfied that the consultation undertaken was appropriate for the purpose of section 17 of the LIA.
Regulatory Impact
The Office of Best Practice Regulation (the OBPR), was consulted about the making of the Amendment. The OBPR did not require a Regulation Impact Statement (RIS). The RIS exemption number for the Declaration is 12184.
Amendment Details
Further details of the Amendment are provided in the Attachment.
Attachment
Notes on Sections
Section 1 Name of Determination
Section 1 provides the name of the instrument.
Section 2 Commencement
Section 2 provides that the instrument commences on the day after it is registered.
Section 3 Amendment of Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000
Section 3 provides that Schedule 1 amends the Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000.
Schedule 1 Amendment (section 3)
[1] Section 3
Item 1 omits section 6 of the Radiocommunications (Limitation of Authorisation of Third Party Users) Determination 2000.