EXPLANATORY STATEMENT
Issued by the Australian Communications and Media Authority
Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2015
Purpose
The Australian Communications and Media Authority (the ACMA) has made the Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2015 (the Determination) in accordance with sections 86 and 88 of the Radiocommuncations Act 1992, and in accordance with subsection 33(3) of the Acts Interpretation Act 1901 (the AIA).
The Determination revokes and replaces the Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2005 (the 2005 Determination) without making any significant changes to the regulatory arrangements created by the 2005 Determination.
The ACMA has made the Determination because the 2005 Determination was due to ‘sunset’ (i.e. be automatically repealed) on 1 October 2015, by operation of Part 6 of the Legislative Instruments Act 2003 (the LIA).
Following review and consultation as described below, the ACMA formed the view that the 2005 Determination was operating effectively and efficiently, and continued to form a necessary and useful part of the legislative framework.
Legislative Provisions
Subsection 85(1) of the Radiocommunications Act 1992 (the Act) provides that the licensee of a spectrum licensee may assign, or otherwise deal with, the whole or part of the licence. Subsection 85(2) of the Act provides that an assignment must comply with any rules made under section 88 of the Act.
Section 87 of the Act provides that, to effect an assignment, the ACMA may vary a spectrum licence by specifying a new licensee, vary a condition of the licence, issue one or more new spectrum licences, or cancel one or more existing spectrum licences.
Subsection 88(1) of the Act confers on the ACMA the power to determine rules for assignments of spectrum licences, and rules setting out the circumstances in which spectrum licences are to be varied, issued or cancelled under section 87.
An assignment that involves a change in the licensee, the issue of a spectrum licence, the variation of conditions of a spectrum licence, or the cancellation of an existing spectrum licence does not take effect until the Register of Radiocommunications Licences (Register) is amended to take the assignment into account (subsection 86(2)).
Subsection 86(1) provides that the ACMA may require the parties to such an assignment to give the ACMA information about the assignment for the purpose of amending the Register.
A determination made under section 88 of the Act is a legislative instrument and may be subject to disallowance in accordance with section 42 of the LIA.
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. The Determination revokes the 2005 Determination.
Background
The Determination sets out the conditions under which the Department of Defence (Defence), as the licensee, can assign or otherwise deal with (trade) Defence spectrum licences in the 20.2 – 21.2 GHz (20 GHz) and 30.0 – 31.0 GHz (30 GHz) bands.
Licences in both the 20 GHz band and the 30 GHz band will be tradeable, but with restrictions.
The ‘standard trading unit’ (STU) set by the Determination, and previously set by the 2005 Determination, limits Defence to trading only in the entire licences (i.e. the whole band across the whole of Australia). This restriction is applied because the technical frameworks established for the issue of these licences, while suitable to ‘whole of band, whole of Australia’ usage by Defence, would become unsuitable if partial trading were permitted.
Should Defence consider trading the spectrum licences in part, it may request the ACMA to vary the definition of STU in the Determination (subsection 8(4)). If the ACMA considers that partial trading should be permitted, it will develop technical frameworks, where appropriate, to facilitate partial trading.
Consultation
Subsection 17(1) of the LIA requires that, before the ACMA makes a legislative instrument, it must be satisfied that any consultation that the ACMA considers is appropriate and reasonably practicable to undertake has been undertaken.
The ACMA published a consultation paper and draft Determination on its website between 24 October 2014 and 7 December 2014. The consultation paper explained the sunsetting process and the ACMA’s preliminary view that the existing arrangements under the 2005 Determination should be saved from automatic repeal and remade without any significant changes. Interested parties were invited to comment.
The ACMA did not receive any submissions in response to the consultation.
Regulatory Impact
The Office of Best Practice Regulation (OBPR) applies streamlined administrative processes to sunsetting legislative instruments. As the ACMA has determined that the 2005 Determination was fit for purpose and should be remade without any significant changes, and has certified those matters to OBPR, no Regulation Impact Statement (RIS) is required in relation to the making of the Determination (OBPR reference 17324).
Detailed Description of the Instrument
Details of the Determination are set out in Attachment A.
Documents incorporated in the Instrument by Reference
The Determination refers to Acts and other legislative instruments as in force from time to time (as permitted by section 314A of the Act). Those Acts and legislative instruments are:
- the Act;
- the Radiocommunications (Trading Rules for Spectrum Licences) Determination 2012.
Acts and legislative instruments referenced in the Determination can be found on the ComLaw website (http://www.comlaw.gov.au/).
Statement of Compatibility with Human Rights
As required by subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 a Statement of Compatibility with Human Rights has been prepared by the ACMA and is at Attachment B.
ATTACHMENT A
DETAILS OF THE RADIOCOMMUNICATIONS (TRADING RULES FOR DEFENCE SPECTRUM LICENCES) DETERMINATION 2015
Section 1 Name of Determination
Section 1 provides that the Determination is the Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2015.
Section 2 Commencement
Section 2 provides that the Determination commences on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 Revocation
Section 3 provides that the Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2005 is revoked.
Section 4 Purpose of Determination
Section 4 provides that the purpose of the Determination is to set out the rules that apply to the trading of spectrum licences in particular cases where the assignor is Defence, and to require the provision of information about the assignment for the purpose of amending the Register.
Section 5 Radiocommunications (Trading Rules for Spectrum Licences) Determination 2012 – non-application to Defence
Section 5 provides that the Radiocommunications (Trading Rules for Spectrum Licences) Determination 2012, which sets rules for the trading of spectrum licences, does not apply to the spectrum licences issued to Defence in the frequency bands listed in column 1 of Schedule 1 to the Determination.
Section 6 Definitions
Section 6 defines terms used in the Determination.
Section 7 What may be traded
Section 7 provides that Defence may trade the whole of a Defence spectrum licence.
Section 8 Restrictions on trading and rules about varying licences
Subsection 8(1) provides that Defence may not trade a part of a Defence spectrum licence that is less than a STU. This effectively restricts Defence to trading the entirety of the spectrum licences in the 20 GHz and 30 GHz bands.
Subsection 8(2) provides that, if Defence trades the whole or part of a Defence spectrum licence, the ACMA may revoke any licence condition on the licence it considers to be included specifically because the licence was issued to Defence.
Subsection 8(3) provides that Defence may not trade a Defence spectrum licence in order to secure a loan.
Subsection 8(4) provides that Defence may write to the ACMA requesting that the ACMA vary the definition of STU in order to give effect to a trade.
Subsection 8(5) provides that subsection 8(4) does not, by implication, modify or alter requirements in subsections 8(1) to 8(3) or limit the ACMA’s powers to include or vary spectrum licence conditions under the Act.
Section 9 Information to be given to the ACMA
Section 9 specifies the information that must be given to the ACMA regarding the trade of a Defence spectrum licence. The parties to the trade must provide the name and postal address of the assignee of the licence.
Schedule 1 Standard trading unit
Schedule 1 specifies that a STU for a licence in the 20 GHz band and the 30 GHz band is the entire frequency of the licence (1 GHz) and the entire geographic area covered by the licence (Australia).
ATTACHMENT B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2015
This 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 Legislative Instrument
The Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2015 (the Determination) revokes and replaces the Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2005 (the 2005 Determination) without making any significant changes to the regulatory arrangements created by the 2005 Determination.
The Determination sets out the rules for the assignment of or other dealing with spectrum licences where the assignor is the Department of Defence, as well as setting out requirements for the provision of information about assignments of such licences for the purpose of amending the Register of Radiocommunications Licences.
Human Rights Implications
The Determination does not engage any of the applicable rights or freedoms.
Conclusion
The Determination is compatible with human rights as it does not raise any human rights issues.
Australian Communications and Media Authority