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Friday, 26 November 2010
Page: 2398

Senator BIRMINGHAM (1:45 PM) —The Radiocommunications Amendment Bill 2010 amends the Radiocommunications Act 1992 to give the independent radiocommunications regulator, the Australian Communications and Media Authority, ACMA, greater flexibility in the time frame in which it can commence processes for reissuing spectrum licences; to allow ACMA to issue class licences in the same radiofrequency spectrum as expired or reissued spectrum allocations as well as spectrum in which a spectrum licence is not currently in force, conditional on there being adequate interference safeguards and it being in the public interest; and to vary the treatment of certain ministerial determinations and directions made under the act.

This bill was introduced into the House in June this year. It deals in particular with issues that relate to the expiry of certain spectrum licences. In the late 1990s Australia was very much a world leader when the government commenced auctioning a number of spectrum licences to support a market based approach to licensing of the radiofrequency spectrum. Those licences had a 15-year tenure, flexible conditions and were fully transferable. We were, as I said, world leaders and were amongst the first countries in the world to issue licences on this basis. Many of these licences are now being used by telecommunications carriers to provide mobile phone and wireless access services to millions of Australians. I think few in this place or elsewhere would disagree that the process has provided Australia with a strong, robust and competitive mobile telecommunications service and sector.

The first of the key 15-year licences are due to expire in 2013, with the remainder to expire by 2017, so the need to act in terms of the process for rolling over these licences is evident to all. The current act requires ACMA to publish a notice advising which spectrum licences are due to expire within the next two years and inviting expressions of interest in the spectrum. ACMA are also restricted from issuing draft spectrum licences as part of their marketing plan until two years prior to the licences’ expiration.

According to the government’s second reading speech, incumbent licensees have consistently called for greater certainty about licence reissue. Without such certainty it is claimed that there will be a reluctance to maintain investment in infrastructure and service provision, with potential adverse impacts on coverage and service quality. The explanatory memorandum says that this bill will provide greater flexibility, help reduce incumbent licensee uncertainty close to the licence expiry and encourage continued investments by incumbents in existing network services currently provided under these licences.

With regard to the changes relating to the coexistence of class licences and spectrum licences, the EM states that new and developing technologies have the potential to greatly increase the technical and productive efficiency of spectrum use. These new technologies may be authorised under the ACMA class licence. Importantly, however, the EM goes on to highlight certain conditions that such authorisations may be subject to and that ACMA may impose. It states that they must be satisfied that unacceptable levels of interference will not occur to the operation of radiocommunications devices operated or likely to be operated under spectrum licences and that it is in the public interest to issue class licences, in spectrum designated or reallocated for spectrum licences, to authorise devices with the new sharing technology.

There are also changes to ministerial determinations and directions, as I mentioned, which amend the status of the determinations made by the minister under subsection 82(4) to make them legislative instruments that are not subject to disallowance. The bill also amends the act concerning written directions by the minister to ACMA about determinations made by ACMA concerning spectrum access charges. Once again it specifies that such directions are not disallowable legislative instruments. According to the EM, the rationale for this amendment is that instruments of this kind are not legislative in nature and fall within an exemption provided for under the Legislative Instruments Act 2003. The intention of this amendment is to protect commercially sensitive pricing information relating to the reissue of 15-year spectrum licences by giving a written ministerial direction to the ACMA that it is not a legislative instrument and thus not subject to disallowance. It will protect this information during licence reissue processes until completed.

The government announced back in May its approach to the reissue of 15-year radio frequency spectrum licences. They highlighted that they would be going through a consultation phase and it has, along with the committee inquiry into this legislation, elicited some comments about the bill before us. The Australian Mobile Telecommunications Association in a discussion paper have expressed some concern about aspects of the coexistence of class and spectrum licences. They highlighted that AMTA does not support any amendment, terms and conditions of reissued spectrum licences that would permit other users encroaching on the licensed spectrum assets held by their members. They highlight that their members invest very significant capital for the exclusive but highly competitive use of licensed spectrum and permitting other users to access that spectrum has the potential to dilute the value of these assets particularly where users could be granted access at no cost. They said that if future coexistent use grows in such a way that was never originally envisaged or modelled, no-one could guarantee that it would not adversely impact on the primary spectrum license holders. There is no simple mechanism to measure, manage or rectify adverse outcomes of coexistent use and, if adverse impact occurred, the business impact on the primary licence holder could be significant and long-lasting.

The coalition has of course heard those concerns, and I know that those concerns have been addressed in some ways by the government as well as by the committee. We believe that there is reasonable confidence—and I look forward of course to any reassurances from the government and the minister—that the process in place and the requirements that are there for ACMA to ensure that there is not interference in any determinations that are made are appropriate and we would hope that that provides the necessary reassurance to existing licence holders, as well as, of course, the requirements for a public interest test in this regard.

Another issue of concern is the changing of the spectrum access determinations to make them no longer disallowable instruments. This does give the minister more power on this issue but, equally, a number of industry representatives have indicated that this change will streamline and modernise the licence reissue processes. I do note that the committee inquiry into this bill has of course especially highlighted these issues and that the Scrutiny of Bills Committee, as is not unusual with regard to such changes, has highlighted its concerns about the removal of these provisions as disallowable instruments and has left that, however, as matters for the Senate to consider. Once again, in the committee stage or in other comments I do look forward to reassurance that the government may provide in this regard as to how they see those changes to disallowance provisions working.

Notwithstanding those concerns, the opposition’s position is that we recognise there is a need to provide some certainty to industry given the successful application of this spectrum for Australia’s benefit over a period of close to 15 years now. It is appropriate we ensure that those companies that have this spectrum are able to plan for the future with some certainty. We will not be opposing this bill and indicate our broad support for its direction.

The ACTING DEPUTY PRESIDENT (Senator Mark Bishop)—Senator Birmingham, you mentioned a potential committee stage. Is it your intention to request to go into committee?

Senator BIRMINGHAM —Not necessarily, Mr Acting Deputy President.