EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Radiocommunications Act 1992
Radiocommunications (Spectrum Access Charges — 2 GHz Band) Amendment Determination 2016 (No. 1)
Authority
The Australian Communications and Media Authority (the ACMA) makes the Radiocommunications (Spectrum Access Charges — 2 GHz Band) Amendment Determination 2016 (No. 1) (the instrument) under subsection 294(1) of the Radiocommunications Act 1992 (the Act) and subsection 33(3) of the Acts Interpretation Act 1901 (the AIA).
Subsection 294(1) of the Act provides that the ACMA may make determinations to fix spectrum access charges payable by licensees for issuing spectrum licences and to specify the times when spectrum access charges are payable.
Subsection 33(3) of the AIA relevantly provides that where an Act confers a power to make a legislative instrument, 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.
Purpose and operation of the instrument
The instrument is a legislative instrument for the purposes of the Legislation Act 2003 (the LA).
The instrument amends the Radiocommunications (Spectrum Access Charges — 2 GHz Band) Determination 2016 (the 2 GHz Determination). The 2 GHz Determination, made on 8 June 2016 by the ACMA under subsection 294(1) of the Act, fixes spectrum access charges payable for the re-issue of specified expiring spectrum licences for paired spectrum in the frequency ranges 1920–1980 MHz and 2110–2170 MHz (2 GHz band) to the incumbent licensee.
The 2 GHz Determination incorporates by reference the Radiocommunications (Spectrum Access Charges) Direction 2012 (the Pricing Direction), which was made on 9 February 2012 by the then Minister under subsection 294(2) of the Act.[1]
The Senate Standing Committee on Regulations and Ordinances (SSCRO) has noted that the 2 GHz Determination does not expressly state the manner in which the Pricing Direction is incorporated, namely whether the Pricing Direction is incorporated as in force at a particular time or as in force from time to time.
SSCRO has recommended, as a matter of best practice, that where an instrument incorporates a document by reference, the manner in which that document is incorporated should be clearly specified. The purpose of the instrument is to amend the 2 GHz Determination to make clear the manner in which the Pricing Direction is incorporated.
Subsection 294(4) of the Act provides that the ACMA must ensure that its determinations under subsection 294(1) comply with any directions made by the Minister in force under section 294. The ACMA was therefore required to ensure that the 2 GHz Determination complied with the Pricing Direction as in force at the time of the commencement of the 2 GHz Determination. Accordingly, the 2 GHz Determination incorporates by reference the Pricing Direction as in force at the commencement of the 2 GHz Determination. The instrument adds a new note to the 2 GHz Determination to make that clear.
The instrument also makes a minor change to move, to the new note, information already in the 2 GHz Determination indicating how the Pricing Direction may be obtained.
A provision-by-provision description of the instrument is set out in the notes at Attachment A.
Documents incorporated by reference
The instrument ensures that the 2 GHz Determination clearly specifies that the Pricing Direction is incorporated by reference as in force at the commencement of the 2 GHz Determination.
The 2 GHz Determination continues to indicate that the Pricing Direction is available on the ACMA’s website at http://www.acma.gov.au.
Consultation
The ACMA did not undertake any public consultation in relation to the instrument, given that the amendment does not alter the legal effect of the 2 GHz Determination and merely adds a note to make clear the manner in which the Pricing Direction is incorporated by reference.
Regulatory impact assessment
The instrument does not give rise to a regulatory change as defined by the Office of Best Practice Regulation. Therefore, a regulatory impact analysis process has not been applied.
Statement of compatibility with human rights
Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule-maker in relation to a legislative instrument to which section 42 (disallowance) of the LA applies to cause a statement of compatibility to be prepared in respect of that legislative instrument. The statement of compatibility set out below has been prepared to meet that requirement.
Overview of the instrument
The instrument amends the 2 GHz Determination to make clear that the Pricing Direction is incorporated by reference as in force at the commencement of the 2 GHz Determination.
Human rights implications
The ACMA has assessed whether the instrument is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.
Having considered the likely impact of the instrument and the nature of the applicable rights and freedoms, the ACMA has formed the view that the instrument does not engage any of those rights or freedoms.
Conclusion
The instrument is compatible with human rights as it does not raise any human rights issues.
Attachment A
Notes to the Radiocommunications (Spectrum Access Charges — 2 GHz Band) Amendment Determination 2016 (No. 1)
Section 1 Name
This section provides for the instrument to be cited as the Radiocommunications (Spectrum Access Charges — 2 GHz Band) Amendment Determination 2016 (No. 1).
Section 2 Commencement
This section provides for the instrument to commence at the start of the day after it is registered on the Federal Register of Legislation.
The Federal Register of Legislation may be accessed at https://www.legislation.gov.au.
Section 3 Authority
This section identifies the provision of the Act that authorises the making of the instrument, namely subsection 294(1) of the Radiocommunications Act 1992 (the Act).
Section 4 Amendments
This section provides that the instrument that is specified in Schedule 1 is amended as set out in the applicable items in that Schedule.
Schedule 1–Amendments
Radiocommunications (Spectrum Access Charges — 2 GHz Band) Determination 2016 (F2016L01021)
Item 1 Subsection 4(1) (at the end of the definition of Pricing Direction)
This item adds a note at the end of the definition of Pricing Direction which:
- makes clear that the reference to the Radiocommunications (Spectrum Access Charges) Direction 2012 is a reference to that Direction as in force at the commencement of the Determination; and
- indicates that the Direction is available on the ACMA’s website at http://www.acma.gov.au.
Item 2 Subsection 4(2) (note)
This item repeals the note at the end of subsection 4(2) (indicating that the Pricing Direction is available on the ACMA’s website) as it is covered by the note at the end of the definition of Pricing Direction.
[1] The Pricing Direction specifies the amounts that the then Minister considered to be the value of the spectrum in relation to the spectrum bands specified, one of which is the 2 GHz band, and directs the ACMA to ensure that the spectrum access charges for re-issued licences in those bands reflect those amounts.
The Pricing Direction is not a legislative instrument (see subsection 294(5) of the Act). Under section 14 of the LA, such a document may only be incorporated by a legislative instrument as in force at the commencement of the legislative instrument, unless the enabling legislation or other legislation authorises incorporation by reference from time to time. Subsection 314A(2) of the Act allows an instrument made under that Act to make provision in relation to a matter by applying, adopting or incorporating (with or without modifications) matter contained in any other instrument or writing whatever as in force or existing at a particular time or as in force or existing from time to time.