Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2025

EXPLANATORY STATEMENT

Approved by the Australian Communications and Media Authority

Radiocommunications Act 1992

Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2025

Authority

The Australian Communications and Media Authority (the ACMA) has made the Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2025 (the instrument) under subsections 86(1) and 88(1) of the Radiocommunications Act 1992 (the Act), and subsection 33(3) of the Acts Interpretation Act 1901 (the AIA).

Subsection 86(1) provides that the ACMA may require the parties to an assignment of a spectrum licence to give the ACMA information about the assignment for the purpose of amending the Register of Radiocommunications 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 as the result of an assignment.

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 sets out the rules for the assignment of spectrum licences held by the Department of Defence (Defence) as part of the Commonwealth, in accordance with section 88 of the Act.

A spectrum licence authorises the licensee to operate radiocommunications devices in the parts of the spectrum, and the geographic areas, specified in the conditions of the licence. Subsection 85(1) of the Act provides that the licensee of a spectrum licensee may assign, or otherwise deal with, the whole or any part of the licence.  Subsection 85(2) provides that an assignment must comply with any rules made under section 88 of the Act.

An assignment of a spectrum licence 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 is amended to take the change, issue, variation or cancellation into account (subsection 86(2) of the Act).

The instrument repeals and replaces the Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2015 (the 2015 determination), which was due to sunset on 1 October 2025 by operation of Part 4 of Chapter 3 of the Legislation Act 2003 (the LA). The 2015 determination set rules for the assignment of spectrum licences held by Defence. The instrument does not make any significant changes to the regulatory arrangements created by the 2015 determination.

Following a review of the 2015 determination, and consultation described below, the ACMA formed the view that the 2015 determination was operating effectively and efficiently, and that it continued to form a necessary part of the legislative framework.

The rules for assignments set by the 2015 determination included a requirement to trade in defined ‘standard trading units’ (STU), which essentially required an assignment of the whole of a spectrum licence. Defence could request the ACMA to vary the 2015 determination to change what a standard trading unit was for a particular spectrum licence. The 2015 determination also prohibited the assignment of a spectrum licence for the purpose of securing a loan, and set out the information that must be provided to the ACMA when assignment of a spectrum licence occurs (in accordance with subsection 86(1) of the Act.)

The instrument largely replicates the substance of the 2015 determination, and sets out the conditions under which the Defence, as the licensee, can assign spectrum licences. Defence currently holds licences in the 20.2 – 21.2 GHz and 30.0 – 31.0 GHz frequency bands. Except in relation to assigning a spectrum licence for the purpose of securing a loan, the ACMA does not intend any change in Defence’s ability to assign spectrum licences. In particular:

• The STU set by the instrument, and previously set by the 2015 determination, limits Defence to assigning only an entire licence (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 assignment were permitted.
• However, should Defence consider assigning only part of a spectrum licence, it may request permission from the ACMA to do so. If the ACMA considers that partial assignment should be permitted, it may give the permission (without amending the instrument), and it will likely develop technical frameworks, where appropriate, to facilitate partial assignment.
• The prohibition on assigning a spectrum licence for the purpose of securing a loan has not been included in the instrument. Accordingly, there is no longer any restriction or limitation in the instrument on Defence assigning a whole spectrum licence.
• Some minor drafting changes have been made to the instrument, to reflect the situation under the Public Governance, Performance and Accountability Act 2013 (the PGPA Act). Under the PGPA Act, the Commonwealth, as represented by the accountable authority for the Department of Defence, is the licensee of the spectrum licences held for use by the Department of Defence. Only the accountable authority for the Department of Defence, or their delegate under the PGPA Act, is authorised to deal with these licences.

A provision-by-provision description of the instrument is set out at Attachment A.

The instrument is a legislative instrument for the purposes of the LA, and is disallowable. The instrument is subject to the sunsetting provisions of the LA.

Documents incorporated by reference

The instrument does not incorporate any document by reference.

Consultation

Before the ACMA made the instrument, it was satisfied that consultation was undertaken to the extent appropriate and reasonably practicable, in accordance with section 17 of the LA.

The ACMA published a consultation paper and draft of the instrument on its website on 7 March 2025. In addition, the ACMA notified persons of the publication using its e-bulletin service.

The consultation process closed on 11 April 2025. The ACMA received one submission in response to that process; Defence sought further clarity with respect to some of the terminology used and requested explanatory notes regarding the PGPA Act and who can assign a Defence licence in whole or in part.

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 with human rights to be prepared in respect of that legislative instrument.

The statement of compatibility with human rights set out below has been prepared to meet that requirement.

Overview of the instrument

It is a requirement of the Act that the operation of a radiocommunications device, or the possession for the purposes of operation of a radiocommunications device must be licensed by one of 3 types of licence: spectrum, apparatus or class. The instrument operates in relation to the spectrum licensing of radiocommunications devices.

Subsection 86(1) provides that the ACMA may require the parties to an assignment of a spectrum licence to give the ACMA information about the assignment for the purpose of amending the Register of Radiocommunications 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 as the result of an assignment.

The instrument sets out the rules for the assignment of spectrum licences held by Defence, in accordance with section 88 of the Act, and requires the provision of certain information about assignments of such licences, under subsection 86(1).

Under the instrument:

• There is no restriction or limitation on Defence assigning a whole spectrum licence.
• The STU limits Defence to assigning only an entire licence (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 assignment were permitted.
• However, should Defence consider assigning only part of a spectrum licence, it may request permission from the ACMA to do so. If the ACMA considers that partial assignment should be permitted, it may give the permission, and it will likely develop technical frameworks, where appropriate, to facilitate partial assignment.

These technical frameworks for spectrum licences specify the minimum technical requirements for the operation of devices under that spectrum licence and are aimed at managing interference between users.

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 those rights and freedoms.

Conclusion

The instrument is compatible with human rights because it does not engage any of the relevant rights and freedoms.

Attachment A

Notes to the Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2025

Section 1 Name

This section provides for the instrument to be cited as the Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2025.

Section 2 Commencement

This section provides that the instrument commences at the start of the day after the day it is registered on the Federal Register of Legislation.

The Federal Register of Legislation is available, free of charge, at www.legislation.gov.au.

Section 3 Authority

This section identifies the provisions of the Act that authorise the making of the instrument, namely subsections 86(1) and 88(1) of the Act.

Section 4 Repeal

This section provides that the Radiocommunications (Trading Rules for Defence Spectrum Licences) Determination 2015 [F2015L01217] is repealed.

Section 5 Interpretation

This section defines key expressions used in the instrument.

Several other expressions used in the instrument are defined in the Act.

Section 6 References to other instruments

This section provides that in the instrument, unless the contrary intention appears:

• a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time; and
• a reference to any other kind of instrument or writing is a reference to that other instrument or writing as in force, or existing, from time to time.

Section 7 Rule about assignments of part of Defence spectrum licences

This section sets a rule concerning the assignment of part of a Defence spectrum licences. No rules apply to the assignment of the whole of a Defence spectrum licence. A ‘Defence spectrum licence’ is one held by the Commonwealth for the benefit or purposes of the Defence Department. Once a Defence spectrum licence is assigned, in whole or in part, that licence (or the relevant part) ceases to be a ‘Defence spectrum licence’.

A part of a Defence spectrum licence may only be assigned if:

• it is at least an STU (which amounts to the whole of the Defence spectrum licence); or
• the ACMA has given permission to assign a smaller part of a Defence spectrum licence.

As both the ACMA and the Defence Department are part of the Commonwealth, the instrument does not make provision for merits review of the ACMA’s decision whether to give permission to assign a smaller part of a Defence spectrum licence. Other intra-government mechanisms for resolving any issues will be available. Further, consistently with [4.65] to [4.66] of the Administrative Review Council’s publication What decisions should be subject to merit review? (1999), these decisions are of such limited impact, affecting only spectrum licences held by the Defence Department, it would be inappropriate to provide for merits review, as the cost of providing for merits review would be vastly disproportionate to the significance of the decisions under review.

As both the ACMA and the Defence Department are part of the Commonwealth, the instrument does not state what matters the ACMA must take into account when deciding whether to give permission to assign a smaller part of a defence spectrum licence. The ACMA will be guided by the object of the Act, which is to promote the long-term public interest derived from the use of the spectrum by providing for the management of the spectrum in a manner that, among other things, facilities the use of the spectrum for defence purposes (section 3 of the Act).

Section 8 Rule about varying Defence spectrum licences

Under subsection 87(1) of the Act, the ACMA may do various things, including varying spectrum licences, issuing spectrum licences and cancelling existing spectrum licences, in order to give effect to an assignment of a spectrum licence. Under subsection 88(1), the ACMA may determine rules setting out the circumstances in which spectrum licences are to be varied, issued or cancelled under section 87.

Section 8 of the instrument provides that, without limiting the ACMA’s powers under subsection 87(1), the ACMA may revoke a condition included on a Defence spectrum licence if the ACMA considers that the condition was included because the licence was a Defence spectrum licence.

Section 9 Provision of information about assignments of Defence spectrum licences

Under subsection 86(1) of the Act, the parties to an assignment of the whole or a part of a spectrum licence that involves a change in the licensee, the issue of a spectrum licence, the variation of the conditions of a spectrum licence, or the cancellation of an existing spectrum licence, must give the ACMA such information about the assignment as the ACMA requires for the purpose of amending the Register of Radiocommunications Licences.

Section 9 of the instrument requires the Commonwealth to give to the ACMA the name and postal address of the assignee of a Defence spectrum licence.