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Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 [and associated Bills]



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ISSN 1328-8091

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BILLS DIGEST NO. 25, 2020-21 18 NOVEMBER 2020

Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 [and associated Bills] Philip Dearman Social Policy Section Paula Pyburne Law and Bills Digests Section

Contents

Purpose of the Bills ......................................................... 5

Structure of the Bills........................................................ 5

Background ..................................................................... 6

Introduction ................................................................ 6

What is spectrum? ...................................................... 6

Assessing and managing value .................................... 8

Financial value ........................................................... 8

Table 1: Income derived from radio spectrum regulation .................................................................. 8

Social value ................................................................ 9

Public benefit ............................................................ 9

Spectrum regulation in Australia .............................. 10

Phase 1: 1905-1983 ................................................. 10

Phase 2: 1983-1992 ................................................. 10

Phase 3: 1992-current ............................................. 11

The path to reform .................................................... 11

Spectrum Review report ......................................... 12

Committee consideration .............................................. 13

Senate Environment and Communications Legislation Committee .............................................. 13

Senate Standing Committee for the Scrutiny of Bills ............................................................................ 14

Policy position of non-government parties/independents.................................................... 14

Position of major interest groups................................... 14

Financial implications .................................................... 15

Date introduced: 27 August 2020

House: House of Representatives

Portfolio: Communications, Cyber Safety and the Arts

Commencement: As set out in the body of this Bills Digest Links: The links to the Bills, their Explanatory Memoranda and the second reading speeches can be found on the Bills’ home pages for the Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020, the Radiocommunications (Receiver Licence Tax) Amendment Bill 2020 and the Radiocommunications (Transmitter Licence Tax) Amendment Bill 2020 or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2020.

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Statement of Compatibility with Human Rights.............. 15

Parliamentary Joint Committee on Human Rights ... 15 Schedule 1 .................................................................... 16

Commencement ........................................................ 16

Key issues and provisions .......................................... 17

Stakeholder comments ........................................... 17

Schedule 2 .................................................................... 17

Commencement ........................................................ 17

Key issues and provisions .......................................... 17

Ministerial policy statements .................................. 18

Scrutiny of Bills Committee comments ................... 19 ACMA’s work program ............................................ 19

Comment ................................................................. 20

Schedule 3 .................................................................... 20

Commencement ........................................................ 20

Key issues and provisions .......................................... 21

Move to a single licensing system ............................. 21

Issuing spectrum licences ........................................ 21

Allocation limits ..................................................... 22

Direct allocation of spectrum licences ...................... 23 Contents of spectrum licences .................................. 23

Renewal statement ................................................. 23

Renewal application period .................................... 23

Public interest statement ........................................ 24

Stakeholder comments ........................................... 24

Varying with agreement ............................................ 24

Variation with no agreement .................................... 25

Renewal of spectrum licences................................... 25

Further information ................................................ 26

Stakeholder comments ........................................... 26

Renewal of spectrum licences ................................. 27

Notice of refusal to renew ...................................... 27

Timeline for decision making .................................... 28

What the Reform Bill does ...................................... 28

A renewal decision-making period statement is included in a spectrum licence .............................. 28

Renewal decision making period is not included in the licence ........................................... 28

Stakeholder comments ........................................... 29

Issuing further licences ............................................. 29

Apparatus licences .................................................... 29

Price-based allocation system ................................. 29

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Class licences ............................................................. 30

Re-allocating spectrum ............................................. 30

Schedule 4 .................................................................... 30

Commencement ........................................................ 31

Key issues and provisions .......................................... 31

Making equipment rules ........................................... 32

Prescribing standards .............................................. 32

Obligations and prohibitions ................................... 33

Permits .................................................................... 33

About offences and penalties ................................... 33

Breaching the equipment rules and permit conditions ................................................................ 33

Using protected symbols ........................................... 34

About protected symbols ........................................ 34

Using a protected symbol ....................................... 34

Interim bans .............................................................. 35

Scrutiny of Bills Committee comments ................... 35 Permanent bans ........................................................ 36

Criminal offences and civil penalties ....................... 36

ACMA may declare an amnesty .............................. 37

Equipment recalls ...................................................... 37

Obligations of a supplier ......................................... 38

Criminal offences and civil penalties ....................... 38

Human Rights Committee comments ..................... 38 Stakeholder comments ........................................... 39

Schedule 5 .................................................................... 39

Commencement ........................................................ 39

Key issues and provisions .......................................... 39

Conditions on a spectrum licence ........................... 39

Conditions on an apparatus licence ........................ 40

Accreditation ........................................................... 40

Registration of licences ........................................... 40

Schedule 6 .................................................................... 41

Commencement ........................................................ 41

Key issues and provisions—enforcement ................. 41 Civil penalties .......................................................... 42

Infringement notices ............................................... 42

Enforceable undertakings ....................................... 42

Injunctions ............................................................... 43

Forfeiture notices ...................................................... 43

Court ordered forfeiture ......................................... 44

Inspectors .................................................................. 44

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General powers of inspectors ................................. 45

Directions to licensees ............................................ 45

Other powers of inspectors..................................... 45

Monitoring and investigation powers ....................... 45 Basic monitoring powers ......................................... 46

Issuing a monitoring warrant .................................. 46

Investigation powers ................................................. 47

Nature of investigation powers ............................... 47

Issuing an investigation warrant ............................. 47

Schedule 7 .................................................................... 48

Commencement ........................................................ 48

Key issues and provisions .......................................... 48

Stakeholder comments ........................................... 48

Concluding comments ................................................... 48

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Purpose of the Bills This Bills Digest relates to three Bills which are part of a legislative package.

The purpose of the Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 (the Reform Bill) is to amend the Radiocommunications Act 1992 to implement some of the recommendations of the 2015 Spectrum Review and to modernise the legislative framework for spectrum management.1

Currently receiver licensees can choose whether to pay upfront or in instalments. The purpose of the Radiocommunications (Receiver Licence Tax) Amendment Bill 2020 (Receiver Licence Tax Bill) is to amend the Radiocommunications (Receiver Licence Tax) Act 1983 (Receiver Licence Tax Act) to allow the Australian Communications and Media Authority (ACMA) to specify how holders of specified classes of receiver licence (as determined by the ACMA) pay their tax (either upfront or by instalments). Only those receiver licensees that are not covered by an ACMA determination will retain the right to choose how to pay.

The purpose of the Radiocommunications (Transmitter Licence Tax) Amendment Bill 2020 (Transmitter Licence Tax Bill) is to amend the Radiocommunications (Transmitter Licence Tax) Act 1983 (Transmitter Licence Tax Act) to allow the ACMA to determine whether, for specific classes of transmitter licences with longer than 12 months duration, the tax imposed should be paid in full on the issue of the licence or by instalments.

Structure of the Bills The Reform Bill has 11 Schedules:

• Schedule 1: sets out a revised objects clause for the Radiocommunications Act

• Schedule 2: relates to policy statements and ACMA’s work program. Part 2 of Schedule 2 contains consequential amendments to the Australian Communications and Media Authority Act 2005 (ACMA Act)

• Schedule 3: contains amendments in relation to licences

• Schedule 4: relates to equipment. Part 3 of Schedule 4 makes consequential amendments to the ACMA Act, Telecommunications Act 1997 and the Trans-Tasman Mutual Recognition Act 1997

• Schedule 5: deals with accreditation

• Schedule 6: relates to compliance and enforcement. Part 2 of Schedule 6 contains consequential amendments to the ACMA Act and the Telecommunications (Interception and Access) Act 1979

• Schedule 7: contains information-gathering powers

• Schedule 8: contains miscellaneous amendments. Part 2 of Schedule 8 sets out certain transitional provisions

• Schedule 9: relates to datacasting. Part 2 of Schedule 9 contains consequential amendments to the ACMA Act, the Broadcasting Services Act 1992, the Competition and Consumer Act 2010 (CCA) and the Income Tax Assessment Act 1997 (ITAA 1997)

• Schedule 10: provides for public inquiries. Part 2 of Schedule 10 contains consequential amendments to the ACMA Act and

1. Department of Communications (DoC), Spectrum review, DoC, [Canberra], March 2015.

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• Schedule 11: deals with the duration of licences.

Both the Receiver Licence Tax Bill and the Transmitter Licence Tax Bill comprise two Parts. In each case, Part 1 contains the operative amendments and Part 2 contains application provisions.

The Bills together comprise more than 200 pages. This Bills Digest discusses the provisions of Schedules 1-7 and Schedule 11 of the Reform Bill.

Background

Introduction When policy actors speak of radio spectrum, they often reference ‘the future’. For instance, in 2016, then Minister for Communications, Mitch Fifield, gave an address to the annual RadComms Conference in which he quoted Cisco futurist Dave Evans on how technological innovation promises to solve a range of complex challenges.

…within 10 years, there will be 50 billion connected things in the world, with trillions of connections among them.

As he [Evans] says: “These connections will change the world for the better in ways we can’t even imagine today.”

From healthcare and education, to agriculture, business and the environment, the implications of these digital innovations are profound and will affect all areas of our lives. 2

The prospects for the future are, as the Minister noted, exciting. But at the same time he cautioned his audience to think about some of the ‘tricky questions’ posed for legislators by the rapid pace of technological change.

How does Government prepare for ground breaking innovations that we can’t predict?

How does Government ensure that we’re ready to harness new opportunities as they emerge?

And how can Australia position itself at the forefront of this digital revolution, so that we can fully capitalise on the social and economic advantages it will bring? 3

Understanding how radio spectrum is governed can indeed be challenging. It is both technically and administratively complex. Governments and regulatory authorities have to consider a range of different factors, not just of ‘the future’ but of the ‘here and now’, including, for example: the technical affordances of different parts of the radio spectrum; the objectives and capacities of device manufacturers and service providers; current trends in different categories of use; and the economics of investment.

What is spectrum? A recent Deloitte report described radio spectrum as the ‘the lifeblood of our wireless world’.4 Radio spectrum has also been described as a scarce natural resource,5 and a key enabler of

2. M Fifield (Minister for Communications), RadComms 2016, ACMA spectrum management conference, speech, 10 March 2016. (The Minister quoted D Evans, ‘The Internet of Everything: where technology and innovation meet to make the world a better place’, Cisco Blogs, 18 November 2013.)

3. Ibid.

4. Center for Technology, Media and Telecommunications, Spectrum portfolios in a 5G world: Rethinking the value of spectrum, Deloitte Insights, 2018, p. 2.

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important social and economic objectives.6 A 2017 departmental consultation paper on the question of how best to manage radio spectrum reserved for use by public sector agencies, described radio spectrum as ‘essential to a digitally networked economy and a major contributor to Australia’s economic and social wellbeing’, a resource that both ‘supports essential services such as safety-of-life and security and improves the quality of life of users’, and a ‘critical infrastructure enabling production for industrial, commercial, educational and other social services’.7

Radio spectrum is, in other words, an essential ingredient in the everyday making of our modern digitally networked lives. We routinely make use of radio spectrum to operate mobile phones, GPS navigation systems, home wireless networks, radios and televisions, baby monitors, garage door openers, and so on. All these devices - and many, many more - use some portion of the radiofrequency spectrum.

Technically, spectrum is the term used to refer to the ‘continuous range of electromagnetic radiation waves’, which ‘extends from the longest radio waves to the shortest X-rays and gamma rays’.8 The radiofrequency spectrum (which we refer to here as simply radio spectrum) sits in the lower part of the electromagnetic spectrum. Like waves in the ocean, radio waves have physical properties: they have a wavelength (a distance between peaks) and a frequency (the number of wave peaks passing any given point over a period of time).

A spectrum band is the portion of spectrum allocated for use by a communications system. For example, the Australian Radiofrequency Spectrum Plan 2017 (a legislative instrument made in accordance with section 30 of the Radiocommunications Act) notes that ‘parts of the radiofrequency spectrum, including the band 520-694 MHz, are designated as being primarily for broadcasting purposes and referred for planning in accordance with Part 3 of the Broadcasting Services Act 1992’.9

The development of contemporary wireless communication technologies has, in part, been enabled by the corresponding implementation of regulatory systems which confer a right to use radio spectrum, which cannot be purchased and stored, or owned, in the same way as most other productive resources.

A departmental consultation paper described radio spectrum as a ‘finite natural resource’ which has some unique characteristics: ‘it is a “commons” good where the actions of one user can impact the experience of others (for example, by degrading the use by others through congestion and interference), and users cannot be excluded from use except through allocation and licensing arrangements’.10 If there were no licensing rules governing access to radio spectrum, users would simply crowd into the ‘prime’ bands (that is, those most suitable for their devices and applications), creating interference and confusion.

5. Australian Communications and Media Authority (ACMA), Five-year spectrum outlook 2015-19: the ACMA's spectrum demand analysis and strategic direction for the next five years, ACMA, Canberra, September 2015, p. 7. 6. Ibid., p. 31.

7. Department of Communications and the Arts (DoCA), Broadcasting spectrum: consultation paper, DoCA, Canberra, May 2017, p. 5. 8. ACMA, ‘What is spectrum?’, ACMA website, last updated 18 November 2019. 9. Australian Radiofrequency Spectrum Plan 2017, Part 3, AUS104. 10. DoC, Spectrum review: potential reform directions, Consultation paper, DoC, Canberra, November 2014, p. 3.

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Assessing and managing value However, avoiding interference is just one objective. Governments have also taken on the role of maximising the net benefit to the community, of the renewable but scarce resource that is radio spectrum. A key question for governments in this context has been how best to measure the value of radio spectrum.

Financial value Some crude measures of current value are available. The size of the sector is indicated by the sheer number of licences issued by the regulator, the Australian Communications and Media Authority (ACMA). In its 2018-19 Annual Report, the ACMA reported it had allocated or issued 13,829 radiocommunications licences, and that in the same period 144,777 radiocommunications licences were renewed.11

Income derived from radio spectrum regulation is another measure of value. Table 1 shows that income derived from apparatus and spectrum licence renewal taxes, and from spectrum auctions, as reported in ACMA Annual Reports between 2014-15 and 2018-19, amounted to $6.86 billion.

Table 1: Income derived from radio spectrum regulation

2014-15

$m

2015-16 $m

2016-17 $m

2017-18 $m

2018-19 $m

Apparatus licence taxes 149.14 231.86 163.46 201.42 231.15

Spectrum licence renewals 172.39 125.92 0 1,440.64 0

Spectrum licence auctions 1,953.77 26.71 527.65 1,637.48 0

Total 2,275.30 384.49 691.11 3,279.54 231.15

Source: ACMA Annual Reports, 2044-15 to 2018-19.12

The importance of radio spectrum to the wider economy was underlined by figures in a report prepared by the Centre for International Economics indicating the economic benefits of spectrum could be as high as $177 billion over a 15 year period.13

Further useful insight into the value of radio spectrum are provided in a report published in 2016 by the International Telecommunications Union (ITU),14 which included guidelines for regulators and spectrum licensees on determining the price of spectrum. That report summarised some of the key economic and market issues affecting the valuation of spectrum, including:

• the level and growth in demand

• the level of competition and respective market shares of operators

• differences in the attractiveness of particular bands, for the introduction of new services and technologies

11. ACMA, Annual report 2018-19, ACMA, Canberra, p. 11. 12. ACMA, Annual report 2014-15, ACMA, Canberra, p. 32; ACMA, Annual report 2015-16, ACMA, Canberra, p. 32; ACMA, Annual report 2016-17, ACMA, Canberra, p. 26; ACMA, Annual report 2017-18, ACMA, Canberra, p. 147; ACMA, Annual report 2018- 19, op. cit., p. 83.

13. DoC, Spectrum review, op. cit., p.10. 14. The International Telecommunication Union (ITU) is an agency of the United Nations, which facilitates international connectivity in communications networks, including by setting technical standards for the use of radio spectrum.

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• assumptions about current and future costs of equipment, operating costs, and the timing of investments and

• assumptions about business finances and weighted average cost of capital.15

Social value That same publication also offers a list of social values, which indicate further dimensions of the overall value of radio spectrum such as:

• access and inclusion (e.g. value derived from universal access and facilitating access to public services)

• quality of life (e.g. value derived from providing access to services that improve quality of life by promoting work/life balance or family life)

• belonging to a community (e.g. value derived from allowing people with similar interests to communicate and/or participate in the local community)

• educated citizens (e.g. value derived from services with educational content or child oriented services)

• cultural understanding (strengthened cultural identities or promote diversity and understanding of other cultures)

• better informed democracy (e.g. value derived from services that provide information facilitating democratic debate)

• negative value derived from any of the elements above.16

Historically, governments have played the dual roles of town planner and traffic controller, licensing and managing access to different parts of the radio spectrum, and policing the boundaries of defined behaviours (such as, regulating the manufacture and sale of goods tuned to an assigned frequency, and using an appropriate level of power).

Public benefit Determining public benefit has proved to be a delicate balancing act of planning and administration, which is called to respond to a number of different priorities. The statement of objectives in the current Radiocommunications Act points to the challenges involved: it speaks of maximising ‘the overall public benefit’ that can be derived from radio spectrum, of providing a ‘responsive and flexible’ approach to administration, and of providing an ‘efficient, equitable and transparent system of charging’ for use of spectrum.17

As stewards of national economic development, which is increasingly digital, governments in recent years have been eager to support new commercial users of radio spectrum, such as mobile telephone and broadband carriers. The importance of guaranteeing space for commercial interests is reflected in the amendment of section 3—the objects of the Radiocommunications Act—proposed in the Bill where ‘commercial purposes’ is to be more clearly indicated as a priority for spectrum management.18

15. ITU, Guidelines for the review of spectrum pricing methodologies and the preparation of spectrum fee schedules, ITU, Geneva, Switzerland, 2016, p. 21. 16. Ibid., p. 8. 17. Radiocommunications Act 1992, section 3. 18. Item 1 in Schedule 1 to the Reform Bill amends the objects clause in the Radiocommunications Act to reflect that the Act is

intended, amongst other things, to ‘facilitate the use of spectrum of commercial purposes’.

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At the same time the Government is required to make radio spectrum available for a wide range of non-commercial uses, such as defence, aviation, maritime, police, emergency services, scientific, meteorological, and so on. Availability of that spectrum can become controversial: for example, one news report on the recent Natural Disaster Royal Commission indicated there were some different views, between the NSW Telco Authority and the current Minister for Communications, about the allocation of spectrum by the Commonwealth for the purpose of establishing a new emergency services broadband network.19

Spectrum regulation in Australia There have been three distinct periods of radio spectrum regulation in Australia. For most of the twentieth century the Australian government enacted a top-down command-and-control style of regulation, however the aspiration of policy makers in the 1990s was to engineer a shift to a mixed mode of centralised and market-based control.

Phase 1: 1905-1983 The Parliament’s power to make laws about the use of radio spectrum is specified in section 51(v) of the Constitution, which grants to the Commonwealth the right to make laws governing ‘postal, telegraphic, telephonic, and other like services’.

Use of the radio spectrum was first governed in Australia by the Wireless Telegraphy Act 1905 (the 1905 Act), which managed interference by allocating bands of spectrum for specific uses. A review of the Radiocommunications Act 1992 by the Productivity Commission in 2002, offers useful historical background.

The Postmaster-General’s department administered the 1905 Act, but the Minister had the exclusive right to grant licences to operate radiocommunications devices. Unlicensed operation of radiocommunications devices was prohibited. Licences were assigned to users on a first-come, first-served basis and administrative fees were charged.

20

Phase 2: 1983-1992 The Wireless Telegraphy Act was replaced by the Radiocommunications Act 1983 (the 1983 Act). According to the Productivity Commission’s 2002 review, the replacement system maintained the administrative arrangements of the earlier Act.

Licences (referred to as apparatus licences) were still assigned on a first-come, first-served basis and were not transferable. Licences were usually renewed every 12 months and annual licence fees were charged. 21

But in the 1983 Act the Commonwealth started, for the first time, to charge for the use of spectrum, beyond fees used to recover the cost of administration. This was justified, in part, by the principle of charging a ‘fair return’ for private uses of a community resource.22

19. A Henderson, ‘Government disputes royal commission evidence over delays to new emergency communications network’, ABC News, 3 July 2020. 20. Productivity Commission (PC), Radiocommunications, Inquiry report, 22, PC, Canberra, 1 July 2002, p. 40. 21. Ibid. 22. Ibid., pp. 75-76.

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Phase 3: 1992-current The 1983 Act had been developed in an era of relatively low spectrum demand and a slow rate of technological change. The command-and-control logic of the earlier 1905 Act was still firmly in place. But as an array of new technologies developed, and as market conditions changed, pressure mounted for a new approach to spectrum management.

The Radiocommunications Act 1992 (1992 Act) established a market-based system for managing a growing and often competing set of demands, for an efficient and effective system of allocating spectrum rights to licence holders, and for managing activity within the radio spectrum.23 It was widely regarded as a progressive intervention in the field. In a paper presented to an ITU workshop on radio spectrum management in 2004, Paul Leite (cited in Hazlett) described the reforms as ‘profound’, and then summarised their key elements.

The presence of an independent, strong and skilled spectrum regulatory body, the establishment of market-driven approaches—such as the attribution of property rights on spectrum to licensees allowed to trade their assets, the spectrum licensing scheme based on technological neutrality and trading, the allocation of spectrum using price-based methods, the delegation of licensing powers to assigned persons within the industry, a streamlined self-declaration compliance arrangement for radio equipment, electronic and electrical products, and a highly effective consultation-based process for the implementation, revision and improvement of the regulatory framework—make Australia a unique benchmark of modern spectrum management administration.

24 [emphasis added]

While some sections of the Radiocommunications Act have been amended in the intervening years, these core features remain intact: three distinct licence types, a market-based approach to allocation and re-allocation, and a complex administrative system for allocating and renewing licences, and for regulating use.

The path to reform Work to reform the current Radiocommunications Act started in May 2014 when then Minister for Communications, Malcolm Turnbull, asked his department and the ACMA to undertake a review of spectrum management.

In his media release, the Minister noted that the last formal review of spectrum management, by the Productivity Commission in 2002, had been ‘two years before Google went public and five years before the first iPhone was released’.25 Considerable technological and commercial innovation and change had shown up some key issues in the overall framework of regulation. The Terms of Reference attached to that media release pointed to issues of ‘complexity, cost and responsiveness’, and to ‘rigidities in the system that work against flexible and adaptive responses’. The current radio spectrum licensing framework, it asserted, is complex and hard to understand.26

23. Explanatory Memorandum, Radiocommunications Bill 1992. 24. F Leite, ‘Case study on Australia’, paper presented at the International Telecommunication Union Workshop on Radio Spectrum Management for a Convergent World, Geneva, February 16-18, quoted in TW Hazlett, ‘Property rights and wireless licence values’, Journal of Law and Economics, 51(3), 2008, p. 582, Hein Online database.

25. M Turnbull (Minister for Communications), Spectrum reform to drive future innovation and productivity, media release, 23 May 2014. 26. Ibid.

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Spectrum Review report The Spectrum Review was subsequently published in March 2015. It summarised feedback from stakeholders, which it said was supported by the Department’s assessment of the current Act, as follows:

• licensing of spectrum is too complex and rigid to efficiently accommodate new technologies and stakeholders’ evolving and increasing spectrum needs

• allocation and reallocation of spectrum takes too long and decisions lack transparency and consistency especially when weighing up commercial and non-commercial uses - for example reallocating the digital dividend (694‐820MHz) took approximately three years with 16 legislative instruments being issued by the Minister or the ACMA

• there is too much uncertainty around spectrum access and renewal, impacting on investor and user confidence. For example it took nearly two years for government to assess that reissuing the 15 year spectrum licences would be in the public interest. Following this decision the ACMA then had to assess whether the licences had been used over the licence period before they could reissue the licences

• stakeholders are not clear on the different (and appropriate) responsibilities of the Minister, the Department and the ACMA

• pricing of spectrum does not always reflect its value, changes in value over time or the benefit spectrum provides to society; and the rationale for pricing discounts lack clarity

• market‐based activity - specifically trading or leasing spectrum - while available, is not being made use of extensively

• technical regulation is too detailed and administratively burdensome

• compliance and enforcement arrangements do not provide users and the regulator with the right set of tools. 27

The Review recommended the following:

1. replace the current legislative framework with outcomes focussed legislation, that facilitates timely allocations, greater flexibility of use, including through sharing and trading of spectrum, and delivers improved certainty for market participants

2. improve the integrity and consistency of the framework by incorporating the management of broadcasting spectrum and better integrating public sector agencies through the reporting of their spectrum holdings and allowing those agencies to lease, sell or share that spectrum for their own benefit

3. review spectrum pricing arrangements to make these consistent and transparent in order to support efficient use and to facilitate secondary markets. 28

The Review recommended simplified regulatory structures, streamlined processes, and clarification of the respective roles of the Government and the ACMA.29 Consistent with the Government’s deregulation agenda, it urged greater use of market mechanisms, a single licensing

27. DoC, Spectrum review, op. cit., p. 11. 28. Ibid., p. 5. 29. Ibid., recommendation 2.1, p. 15.

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Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 [and associated Bills] 13

system, and reform of current allocation processes and device supply regulations. It recommended also that the government provide more opportunities for spectrum users to participate in spectrum management, through delegation of functions and user driven dispute resolution procedures, incorporation of broadcasting spectrum into the same framework as other radio spectrum, and introduction of a ‘proportionate and graduated’ set of enforcement mechanisms for policing breaches of the licencing conditions.30

The Government agreed to the Review recommendations in August 2015,31 and ultimately an exposure draft for a Bill to create an entirely new Act was released in May 2017.32 However, the process then stalled.33

In the middle of 2019, the Minister for Communications, Paul Fletcher, told CommsDay he was not eager to restart the reform process until he was satisfied it was absolutely necessary:

“Essentially, I want to be satisfying myself that the bill makes tangible improvements to the current arrangements, so that we are committed to a reform process in relation to spectrum,” he explained. “In particular, I guess, the way that spectrum is allocated, but I think it’s important to start from a premise that in the broad, we’ve got a system that has served us reasonably well”.

34

The Government then announced a short period of consultation on a draft Bill to amend the current Act, in June 2020.35 The current Reform Bill was subsequently introduced into the Parliament on 27 August 2020.

Committee consideration

Senate Environment and Communications Legislation Committee The Bills were referred to the Senate Environment and Communications Legislation Committee (the Senate Committee) for inquiry and report by 4 November 2020.36 The Senate Committee recommended that the Bills be passed.37

Australian Labor Party (ALP) members of the Senate Committee stated that they ‘broadly support the Bills’.38 However, they expressed concerns about the extent of the delays between the announcement of the Spectrum review and the introduction of the Bills to the Parliament noting

30. Ibid., p. 6. 31. M Turnbull (Minister for Communications) and P Fletcher (Parliamentary Secretary to the Minister for Communications), Next stage of spectrum reform to commence, joint media release, 25 August 2015. 32. Radiocommunications Bill 2017: Exposure draft. 33. M Rowland (Shadow Minister for Communications), After two long years the ACMA review emerges from the Fifield triangle,

media release, 22 May 2017. 34. CommsDay, ‘Fletcher wants to revisit proposed spectrum reforms’, Commsday website, 17 June 2019. 35. P Fletcher (Minister for Communications, Cyber Safety and the Arts), Modernising Australia’s spectrum framework, media

release, 24 June 2020. 36. The terms of reference for the inquiry, submissions to the Senate Environment and Legislation Committee, and the Committee’s final report are available on the inquiry homepage. 37. Senate Environment and Communications Legislation Committee, Inquiry into the provisions of the Radiocommunications

Legislation Amendment (Reform and Modernisation) Bill 2020 [and] associated Bills , The Senate, Canberra, November 2020, p. vii. 38. Labor Senators, Additional comments, Senate Environment and Communications Legislation Committee, Inquiry into the provisions of the Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 [and] associated Bills,

November 2020, pp. 31-34.

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Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 [and associated Bills] 14

that ‘the delay means the ACMA has conducted spectrum auctions without the benefit of the streamlined approach that was identified as a key area in need of reform’.39

Further, the ALP members of the Senate Committee noted:

… despite years of delay, the Bills do not address all of the recommendations of the Spectrum Review … the Bills do not integrate the management of broadcasting spectrum or create a single licensing system, for example, and that the Government could provide no advice or forward plan as to when these things may be addressed in future, beyond a general ‘business as usual’ commitment to continuous reform.

40

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills has commented on the Reform Bill.41 Those comments are canvassed under the heading ‘Key issues and provisions’ below.

Policy position of non-government parties/independents Rebekha Sharkie of Centre Alliance expressed her support for the Bills. She acknowledged that the legislation was ‘the result of an extensive and exhaustive review’ which had ‘developed a targeted set of amendments which will add flexibility and provide greater certainty’.42

Shadow Minister for Communications, Michelle Rowland also spoke in favour of the Bill, with some qualifications.

The Bill also amends the act to provide for the Minister to issue ministerial policy statements, which the ACMA must have regard to in exercising its spectrum management. The roles of the Minister and the ACMA are clarified. The Minister will have less involvement in day-to-day spectrum management decisions that are properly the responsibility of the regulator and will have the power to issue Ministerial policy statements to guide the ACMA in its spectrum management functions. Spectrum allocation and reallocation processes have been streamlined. The ACMA will have greater flexibility to develop fit-for-purpose allocation arrangements in order to bring spectrum to market within shorter time frames where this is appropriate. This fixes some known issues such as the need for bespoke solutions to shortcomings in the system. However, it does not address the growing need for the ACMA to be able to defragment spectrum at the end of 20-year spectrum licences to ensure the most efficient use of spectrum while minimising the cost and disruption to government and other operators of having to clear spectrum ….

43

Position of major interest groups The reform of the spectrum management legislative framework has been the subject of extensive consultation over an extended period of time. The Senate Committee received eight submissions. Submitters to the Senate Committee were broadly supportive of the proposed amendments with some exceptions.44 The concerns raised are canvassed under the relevant schedules set out below.

39. Ibid., p. 32. 40. Ibid., pp. 32-33. 41. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 12, 2020, 18 September 2020, pp. 10-19. 42. R Sharkie, ‘Second reading speech: Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 [and]

associated Bills’, House of Representatives, Debates, 11 November 2020, p. 83. 43. M Rowland, ‘Second reading speech: Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 [and] associated Bills’, House of Representatives, Debates, 11 November 2020, p. 74. 44. For example Telstra stated: ‘We support the Bills, and strongly encourage the Committee to recommend passage of them’.

Telstra, Submission to the Senate Standing Committee on Environment and Communications, Inquiry into the Radiocommunications Bills 2020, [Submission no. 6], 23 September 2020, p. 2.

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Financial implications According to the Explanatory Memoranda to the Bills, the amendments will have no financial impact.45

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bills’ compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bills are compatible.46

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (the Human Rights Committee) considered the creation of offences and civil penalties in Schedule 4 of the Reform Bill and their enforcement in accordance with Schedule 6.47 The Human Rights Committee sought further information from the Minister in relation to:

• whether the proposed civil penalties in Schedules 4 and 6 of the Bill could apply to members of the public, including volunteers working under an organisation which holds a radiocommunications licence and

• whether any of the civil penalties in Schedule 4 could be characterised as criminal for the purposes of international human rights law, and if so, how are they compatible with criminal process rights.48

In relation to the civil penalties in Schedules 4 and 6, the Minister advised:

Schedule 4 of the Bill repeals and substitutes Part 4.1 of the Act which deals with the regulation of radiocommunications equipment and prohibitions regarding possession and use…

While these provisions can apply to individuals, the high levels of civil penalty available under section 176 would not apply until processes specified in the Bill had been undertaken. These include the Australian Communications and Media Authority (ACMA) issuing a permanent ban by legislative instrument, following public consultation, and the expiry of any amnesty period determined by ACMA, during which the individual would have the opportunity to forfeit the equipment without penalty. It is also expected that alternative enforcement options will generally be more appropriate in the case of non-compliance by individuals …

Schedule 6 of the Bill introduces a graduated set of enforcement tools to enable ACMA to take proportionate action in response to non-compliance with the provisions of the Act. As part of this, Schedule 6 introduces several civil penalty provisions and also repeals a number of the current criminal penalties and replaces these with civil penalty provisions where this provides a more appropriate response than a criminal sanction.

45. Explanatory Memorandum, Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020, p. 1; Explanatory Memorandum, Radiocommunications (Receiver Licence Tax) Amendment Bill 2020, p. 1; and Explanatory Memorandum, Radiocommunications (Transmitter Licence Tax) Amendment Bill 2020, p. 1.

46. The Statement of Compatibility with Human Rights can be found at page 9 of the Explanatory Memorandum to the Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020; at page 2 of the Explanatory Memorandum to the Radiocommunications (Receiver Licence Tax) Amendment Bill 2020 and at page 2 of the Explanatory Memorandum to the Radiocommunications (Transmitter Licence Tax) Amendment Bill 2020.

47. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 11, 2020, 24 September 2020, pp. 69-73. 48. Ibid., p. 72.

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Schedule 6 also contains a number of civil penalties that could, in some circumstances, apply to an individual. These provisions include amendments to section 46, which concerns the operation of a radiocommunications device without a licence; section 47, which concerns the unauthorised possession of a radiocommunications device; and section 197, which concerns reckless conduct that may result in substantial interference, disruption or disturbance to radiocommunications.

Sections 46 and 47 would not apply to individuals who were working for an organisation that holds an appropriate licence under the Act. Section 197 concerns conduct that can cause significant harm to radiocommunications and risks to health and safety.

The remaining civil penalty provisions in Schedules 4 and 6 to the Bill apply to either licensees or businesses that deal with radiocommunications equipment and … this class of persons can reasonably be expected to be aware of their obligations under the legislation. 49

In relation to the characterisation of the civil penalty provisions the Minister stated:

Having regard to the aims, quantum, exemptions and broader regulatory context, I consider it is appropriate to conclude that these civil penalty provisions should not be regarded as criminal penalties for the purposes of human rights law.

The civil penalties in the Bill are intended to regulate conduct in a manner proportionate with reference to the regulatory context, and the nature of the regulated industry. 50

And further:

It is also important to note that the criminal process guarantees contained in the [International Covenant on Civil and Political Rights] are not limited by the provisions of the Bill. This includes the right to the presumption of innocence, the right to a fair trial and the right not to be tried twice for the same offence.

51

In light of the Minister’s response, the Committee had no further comment and concluded its consideration of the Reform Bill.52 The Committee had no comment on the other Bills.53

Schedule 1 Quick guide to Schedule 1 The amendments in Schedule 1 to the Reform Bill update the objects clause in the Radiocommunications Act.

Commencement The amendments in Schedule 1 to the Reform Bill commence on the earlier of a day to be fixed by Proclamation or six months after Royal Assent.

49. Parliamentary Joint Committee on Human Rights, Human Rights Scrutiny report, 13, 2020, 13 November 2020, pp. 129-131. 50. Ibid., pp. 131-132. 51. Ibid., p. 132. 52. Ibid., p. 134. 53. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 11, 2020, op. cit., p. 82.

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Key issues and provisions Currently, section 3 of the Radiocommunications Act states that the object of the Act is to provide for management of the radiofrequency spectrum and specifies eight separate aims that are to be achieved.

Item 1 of Schedule 1 to the Reform Bill repeals and substitutes section 3 to provide a simplified objects clause. It operates so that the object of the Radiocommunications Act 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:

• facilitates the efficient planning, allocation and use of the spectrum

• facilitates the use of the spectrum for commercial purposes and for defence purposes, national security purposes and other non-commercial purposes (including public safety and community purposes) and

• supports the communications policy objectives of the Commonwealth Government.

Stakeholder comments The ABC submitted that in order:

… to underline the importance of public broadcasting, the new Object section of the Act should explicitly include the term “national broadcasting purposes” as one of the non-commercial uses of spectrum, as it delivers significant benefits to the Australian public. 54

Schedule 2 Quick guide to Schedule 2 The amendments in Schedule 2 of the Reform Bill add references to Ministerial policy statements and the ACMA’s work program to the Radiocommunications Act. There are also minor consequential amendments to the ACMA Act.

Commencement The amendments in Schedule 2 to the Reform Bill commence at the same time as the amendments in Schedule 1 to the Bill.

Key issues and provisions Item 2 of Part 1, Schedule 2 to the Reform Bill inserts proposed Part 1.5—Ministerial policy statements and proposed Part 1.6—The ACMA’s work program into the Radiocommunications Act.

The amendments in Schedule 2 to the Reform Bill dovetail with the requirement in the updated objects clause that the Radiocommunications Act ‘supports the communications policy objectives of the Commonwealth Government’. They respond to the recommendation of the Spectrum Review that ‘the roles and responsibilities of the Minister and the ACMA’ are clarified.55

54. Australian Broadcasting Corporation (ABC), Submission to the Senate Standing Committee on Environment and Communications, Inquiry into the Radiocommunications Bills 2020, [Submission no. 7], September 2020, pp. 1-2. 55. DoC, Spectrum review, op. cit., p. 7.

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Ministerial policy statements Within new Part 1.5, proposed section 28B empowers the Minister, by notifiable instrument, (called a Ministerial policy statement) to specify Commonwealth Government policies in relation to ACMA’s performance of its spectrum management functions or ACMA’s exercise of its spectrum management powers.

About ACMA’s spectrum management functions Section 9 of the ACMA Act provides that the ACMA’s spectrum management functions are as follows: (a) to manage the radiofrequency spectrum in accordance with the Radiocommunications Act

1992

(b) to advise and assist the radiocommunications community (c) to report to and advise the Minister in relation to the radiocommunications community (d) to manage Australia’s input into the setting of international standards for radiocommunications (except so far as Standards Australia is responsible for managing that

input)

(e) to make available to the public information about matters relating to the radiocommunications community (f) to conduct public educational programs about matters relating to the radiocommunications community (g) to give advice to the public about matters relating to the radiocommunications community (h) such other functions as are conferred on the ACMA by or under:

(i) the Radiocommunications Act 1992 (other than a provision of that Act covered by paragraph 10(1)(p)) (ii) the Radiocommunications (Receiver Licence Tax) Act 1983 (iii) the Radiocommunications (Spectrum Licence Tax) Act 1997 (iv) the Radiocommunications Taxes Collection Act 1983 (v) the Radiocommunications (Transmitter Licence Tax) Act 1983 or (vi) Part 14AA of the Broadcasting Services Act 1992 (i) to monitor, and to report to the Minister on, the operation of each Act specified in

paragraph (h), to the extent it is so specified (j) to do anything incidental to or conducive to the performance of any of the above functions.

About ACMA’s spectrum management powers Item 1 of Schedule 2 to the Bill amends section 5 of the Radiocommunications Act to define the ACMA’s spectrum management powers as the powers conferred on the ACMA by the statutes listed under paragraph (h) above or under section 12 of the ACMA Act, to the extent that the powers relate to the performance of the ACMA’s spectrum management functions.

According to the Explanatory Memorandum to the Reform Bill, the matters that could be addressed in a Ministerial policy statement include:

• criteria to be considered by ACMA when setting allocation limits

• guidance on what is considered to be in the long-term public interest, in line with the object of the Act, and considerations to be taken into account by ACMA in making renewal decisions or when applying a public interest test

• guidance on direct allocation of spectrum licences

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• guidance on the exercise of any or all of ACMA’s other new powers under these amendments. 56

Where a Ministerial policy statement has been made, proposed section 28C requires the ACMA to have regard to it.

Scrutiny of Bills Committee comments The Scrutiny of Bills Committee pointed out that notifiable instruments ‘are not subject to the tabling, disallowance, sunsetting or consultation requirements applying to legislative instruments’ and were, therefore, not subject to Parliamentary scrutiny.57

The Explanatory Memorandum to the Reform Bill describes the use of a notifiable instrument as fitting ‘within the broader policy intent of the Bill, to empower ACMA, as the regulator, to manage the administration of the spectrum and to reduce the Minister’s involvement in the day-to-day administrative processes of ACMA’.58

However the Scrutiny of Bills Committee sought advice from the Minister as to:

• why it is necessary and appropriate for guidance from the Minister under proposed section 28B to be a notifiable instrument and

• whether the Bill can be amended to provide that any instrument made under proposed section 28B will be a legislative instrument.59

The Minister subsequently advised:

As part of efforts to better delineate the role of the Minister and ACMA, in line with the recommendations of the 2015 Spectrum Review, these policy statements are intended to provide a new tool that enables the Minister to set strategic policy and to require ACMA to have regard to this policy guidance.

As such, they are designed to provide guidance, without compelling ACMA by legislative instrument or Ministerial direction. This means that MPSs are not legislative in nature, as they do not determine or alter the content of the law, nor do they create, vary or remove an obligation or right. MPSs are not intended as a prescriptive approach and instead serve to emphasise the Minister's role in setting strategic policy priorities.

As policy guidance from the Minister to the regulator, it is not appropriate that MPSs be subject to parliamentary disallowance, as would generally be the case for a legislative instrument. However, it is appropriate to provide a high level of transparency on the matters covered by MPSs.

In this context, making MPSs notifiable instruments will help provide the necessary and appropriate transparency, and allow for parliamentary and stakeholder visibility of the content of MPSs. 60

ACMA’s work program Within new Part 1.6, proposed section 28E requires the ACMA to determine a work program in relation to its spectrum management functions and its spectrum management powers. This must

56. Explanatory Memorandum, Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020, p. 21. 57. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit., p. 10. 58. Explanatory Memorandum, Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020, p. 22. 59. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, op. cit., p. 11. 60. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 14, 2020, 16 October 2020, pp. 39-40.

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Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 [and associated Bills] 20

be undertaken at least once in each financial year and must be for a period of not less than five financial years. The work program is to be published on the ACMA’s website.

Proposed section 28F of the Radiocommunications Act requires the ACMA to consult the Minister and to undertake any other consultation that is appropriate and reasonably practicable to undertake before determining a work program.

Item 3 in Part 2 of Schedule 2 to the Reform Bill makes a consequential amendment to section 57 of the ACMA Act so that ACMA’s annual report will contain information on the extent to which ACMA’s activities in the relevant financial year gave effect to the work program.

According to the ACMA the ‘provisions give legislative recognition to current ACMA practice, in place for the past 11 years, of publishing a Five-Year Spectrum Outlook, including an annual work program’.61

Comment The Spectrum review states:

Stakeholders want greater transparency and accountability in decision‐making, and a clear distinction to be made between the responsibilities of the Minister/Government to set policy and the ACMA to implement policy …

Essentially the approach recommended in this review aims to improve the arrangements for transparent government policy setting, whilst reducing Ministerial involvement in ACMA process steps. 62

The amendments in Schedule 2 are consistent with that aim.

Schedule 3 Quick guide to Schedule 3 The provisions in Schedule 3 to the Reform Bill amend the Radiocommunications Act with respect to licensing including:  allocation processes  reallocation processes  the renewal of spectrum licences and apparatus licences and  the duration of licences.

They also:

 establish new decision-making timeframes in respect of applications for the renewal of spectrum licences and applications for the renewal of apparatus licences and  repeal provisions which currently provide for the making of conversion plans.

Commencement The amendments in Schedule 3 to the Reform Bill commence at the same time as the amendments in Schedule 1 to the Bill.

61. ACMA, Submission to the Senate Standing Committee on Environment and Communications, Inquiry into the Radiocommunications Bills 2020, [Submission no. 1], September 2020, p. 3. 62. DoC, Spectrum review, op. cit., p. 22.

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Key issues and provisions The Radiocommunications Act defines three separate licence categories for spectrum.

First, spectrum licences authorise exclusive use of specific portions of spectrum in a particular geographic area (including national licences). Spectrum licences afford the most protection from interference, and because of this and their technological neutrality, they are generally more suitable to trading. Spectrum licences are issued using a price‐based method, through auction, tender or pre‐determined or pre‐negotiated price, for a period of up to 15 years.63

Second, apparatus licences authorise a person to operate a specified transmitter or receiver in a defined part of the spectrum, in accordance with licence conditions. These licences are generally issued for up to five years and are renewable upon expiry, subject to the ACMA’s consent.64

Third, class licences authorise users of designated segments of spectrum to operate a low‐power or localised service (such as Wi‐Fi networks or cordless telephones), provided the device complies with the licence conditions. Class licences establish parts of the spectrum as commons, do not involve licence fees and provide users with no protection from interference.65

The Bill retains these three separate licence classes.

However, Schedule 11 of the Reform Bill amends provisions in relation to the duration of licences so that the maximum duration of a spectrum licence66 and of an apparatus licence is 20 years.67

Move to a single licensing system The Spectrum review recommended a ‘single licensing system’, with allocation and reallocation processes that were streamlined and made consistent—thereby reducing regulatory burden.68

Many of the provisions in Schedule 3 to the Reform Bill operate to align the processes for spectrum licences and apparatus licences. This Bills Digest identifies where equivalent provisions are inserted in respect of those licences.

Issuing spectrum licences Currently subsection 60(1) of the Radiocommunications Act requires the ACMA to determine, in writing, the procedures be applied in allocating spectrum licences. These procedures are auction, tender or allocation for a pre-determined price or a negotiated price. The Reform Bill expands the range of procedures that may be determined to include direct allocation and a combination of any or all of those procedures.69 The determination is a legislative instrument.70 Importantly a legislative instrument made under subsection 60(1) of the Radiocommunications Act is not disallowable.71

Where the allocation is to occur by auction, existing subsection 60(2) gives examples of matters that procedures may deal with, such as:

63. Radiocommunications Act, Part 3.2. 64. Radiocommunications Act, Part 3.3. 65. Radiocommunications Act, Part 3.4. 66. Item 1 in Schedule 11 to the Bill amends subsection 65(3). 67. Item 2 in Schedule 11 to the Bill amends subsection 103(3). 68. DoC, Spectrum review, op. cit., p. 25. 69. Item 24 in Part 1 of Schedule 3 to the Bill inserts proposed paragraphs 60(1)(d) and (e). 70. Item 37 in Part 1 of Schedule 3 to the Bill inserts proposed subsection 60(16). 71. See Table item 29 at section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015.

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• the types of auction

• the advertising of auctions

• entry fees for prospective bidders

• reserve prices (if any)

• deposits (if any) payable by successful bidders and

• the methods of payment for licences.

The Reform Bill inserts two additional examples of matters that may be dealt with in auction procedures being:

• eligibility requirements (if any) for participation in auctions and

• credits (if any) for prospective bidders.72

Items 28 inserts paragraphs in equivalent terms into subsection 60(3) which deals with procedures for allocation by tender. Item 30 inserts paragraphs in equivalent terms into subsection 60(4) which deals with allocation for a pre-determined or negotiated price.

Allocation limits Currently subsection 60(5) of the Radiocommunications Act provides that the procedures determined by the ACMA may impose certain limits. The Reform Bill amends that subsection so that the procedures determined by ACMA may either:

• impose limits on the aggregate of the parts of the spectrum that may be used by any one person or a specified person under transmitter licences and existing spectrum licences; and as a result of the allocation of spectrum licences or

• impose limits on the aggregate of the parts of the spectrum that may, in total, be used by the members of a specified group of persons under transmitter licences and existing spectrum licences; and as a result of the allocation of spectrum licences.73

According to the Explanatory Memorandum to the Reform Bill:

Allocation limits are an important tool to help promote competition and allocative efficiency in markets that rely on spectrum, which in turn can help promote the long-term public interest derived from the use of the spectrum. They can be imposed to limit the amount of spectrum any one licensee can acquire through an allocation process (thereby preventing monopolisation of the spectrum), or may be used to establish conditions that encourage the participation of new entrants in the market.

74

Before determining procedures which may impose such limits, the ACMA must consult the ACCC about whether the procedures should impose limits and, if so, the nature of those limits.75

Item 64 in Part 1 of Schedule 3 to the Reform Bill inserts proposed section 102G into the Radiocommunications Act which allows the ACMA to make legislative instruments in equivalent terms (that is, imposing limits) with respect to issuing an apparatus licence.

72. Item 26 in Part 1 of Schedule 3 to the Bill inserts proposed paragraphs 60(2)(ca) and (cb). 73. Item 31 in Part 1 of Schedule 3 to the Bill inserts proposed paragraphs 60(5)(a) and (b). 74. Explanatory Memorandum, Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020, p. 31. 75. Item 35 in Part 1 of Schedule 3 to the Bill inserts proposed subsection 60(13A).

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Direct allocation of spectrum licences Currently, the Radiocommunications Act does not allow the ACMA to allocate spectrum licences directly. The Reform Bill provides that a reference to direct allocation of a spectrum licence means an allocation to a person determined under section 60, or a person ascertained in accordance with the procedures determined under section 60.76 The ACMA must not exercise its power to make a direct allocation of spectrum licence where the relevant part of the spectrum is licensed under another spectrum licence.77

According to the Radiocommunications consultation outcomes paper:

The amendments propose to grant ACMA the power to directly allocate spectrum licences in situations where it is preferable to allocate a spectrum licence to a particular person and as a partial replacement for the conversion process currently in the Act. 78

And further:

Direct allocation is intended to be just one of a number of tools ACMA can use to allocate spectrum as part of a more flexible and fit-for-purpose framework. It is not necessarily envisaged as a common practice. 79

Contents of spectrum licences The Reform Bill inserts a new process for the renewal of spectrum licences.80

Renewal statement Once the provisions in Schedule 3 to the Reform Bill commence every spectrum licence that is issued must include a renewal statement which specifies one of the following:

• the licence cannot be renewed

• the licence may be renewed at the discretion of the ACMA or

• the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist.81 In that case, ‘the renewal statement will specify what these circumstances are in each case, so licensees have clarity on what is required for their licence to be eligible for renewal’.82

Renewal application period Where the renewal statement provides that the licence may be renewed at the discretion of the ACMA or may be renewed at the discretion of the ACMA so long as specified circumstances exist, the licence must also contain a renewal application period statement for the licence.83 The

76. Item 38 in Part 1 of Schedule 3 to the Bill inserts proposed subsection 60A. 77. Item 38 in Part 1 of Schedule 3 to the Bill inserts proposed subsection 60B. 78. Department of Infrastructure, Transport, Regional Development and Communications (DITRDC), 2020 radiocommunications reform, Consultation outcomes paper, DITRDC, Canberra, August 2020, p. 8.

79. Ibid., p. 9. 80. Item 40 in Part 1 of Schedule 3 to the Bill inserts proposed section 65A. 81. Radiocommunications Act, proposed subsections 65A(1) and (2). Under proposed subsections 65A(5) and (6) the ACMA may, by legislative instrument, determine that each spectrum licence included in a specified class of spectrum licences is taken to

include one of the three renewal statements. 82. Explanatory Memorandum, Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020, p. 33. 83. Radiocommunications Act, proposed subsections 65A(10) and (11). Under proposed subsection 65A(12) the ACMA may, by

legislative instrument, determine that each spectrum licence included in a specified class of spectrum licences is taken to include a statement that a period is the renewal application period for the licence.

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renewal application period for a spectrum licence must begin at a time when the licence is in force and end before the licence is due to expire.84

A spectrum licence may include a statement to the effect that a specified period is the renewal decision-making period statement for the licence.85

Public interest statement If a spectrum licence provides that the licence may be renewed at the discretion of the ACMA or may be renewed at the discretion of the ACMA so long as specified circumstances exist the licence may also include a statement to the effect that the ACMA will not renew the licence unless the ACMA is satisfied that it is in the public interest to do so. This is called a public interest statement.86

According to the Explanatory Memorandum to the Reform Bill:

… some of the matters that ACMA may consider in making a decision regarding the public interest of renewing a spectrum licence include: if the licence is used to supply essential public services and there is the potential that a change in licensees may put at risk delivery of services to a significant number of people, whether the incumbent can demonstrate substantial investment and past long-term use of the licensed spectrum, and considerations of the highest value use of the spectrum.

87

Item 65 in Part 1 of Schedule 3 to the Reform Bill inserts proposed section 103A into the Radiocommunications Act in equivalent terms with respect to the renewal of an apparatus licence.

Stakeholder comments Some stakeholders sought greater clarity on what a ‘specified circumstance’ might be and how this differed from the ‘public interest test’.88

Communications Alliance Ltd was also concerned about the ‘public interest’ test stating:

The purpose of such a test appears to be to prevent spectrum being locked up in uses that are no longer considered to be ‘the highest value use’. While this is a valid consideration, this must be balanced against the high upfront and long-lasting investments that are typically made—especially in the satellite sector—for the provision of valuable services to the public.

89

Varying with agreement Section 72 of the Radiocommunications Act provides for the ACMA to vary a spectrum licence with the written agreement of the licensee by including one or more further conditions or by revoking or varying any conditions of the licence. (See the discussion about conditions under Schedule 5.) The Reform Bill expands on the ways in which a spectrum licence may be varied with the agreement of the licensee to include:

84. Radiocommunications Act, proposed subsection 65A(13). 85. Radiocommunications Act, proposed subsections 65A(15) and (16). 86. Radiocommunications Act, proposed subsections 65A(17) and (18). 87. Explanatory Memorandum, Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020, p. 34. 88. Australian Mobile Telecommunications Association (AMTA), Submission to the Senate Standing Committee on Environment

and Communications, Inquiry into the Radiocommunications Bills 2020, [Submission no. 4], 23 September 2020, p. 5. 89. Communications Alliance Ltd, Submission to the Senate Standing Committee on Environment and Communications, Inquiry into the Radiocommunications Bills 2020, [Submission no. 5], 23 September 2020, p. 2.

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• varying the renewal statement included in the licence

• omitting the renewal statement included in the licence and substituting another renewal statement

• varying the renewal application period statement included in the licence

• omitting the public interest statement included in the licence

• omitting the renewal decision-making period statement included in the licence or

• varying the renewal decision-making period statement included in the licence.90

Item 65 in Part 1 of Schedule 3 to the Reform Bill inserts proposed section 103B into the Radiocommunications Act in equivalent terms with respect to varying apparatus licence renewal statements, with agreement.

Variation with no agreement Section 73 of the Radiocommunications Act allows the ACMA to vary a spectrum licence by including one or more further conditions or by revoking or varying any conditions of the licence, other than core conditions.

Item 43 of the Reform Bill applies where a spectrum licence includes a renewal statement which operates so that the licence may be renewed at the discretion of AMCA provided that specified circumstances exist.91 In that case, the ACMA may, by written notice to the licensee vary the licence by

• varying the circumstances specified in the renewal statement included in the licence or

• omitting the renewal statement and substituting a statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist.92

Where a renewal statement is changed using either of the above methods, the ACMA must not vary the licence unless it is satisfied that exceptional circumstances exist that warrant the variation.93

A decision to renew a spectrum licence with different conditions may be subject to reconsideration by the ACMA.94

Renewal of spectrum licences According to the Australian Mobile Telecommunications Association (AMTA):

Spectrum licences typically involve significant investment and such investment, in turn, requires long term certainty. A clearly defined pathway for renewal of spectrum licences as well as the associated processes and timelines is therefore critical to enable the continued multi-billion dollar investment in Australia’s mobile networks.

95

90. Item 42 in Part 1 of Schedule 3 to the Bill inserts proposed subsection 72(3). 91. Item 43 in Part 1 of Schedule 3 to the Bill inserts proposed subsection 73(4). 92. Radiocommunications Act, proposed subsection 73(3). 93. Radiocommunications Act, proposed subsection 73(4). 94. Item 101 in Part 1 of Schedule 3 to the Bill repeals and replaces paragraph 285(d). 95. AMTA, Submission, op. cit., p. 4.

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The Reform Bill provides that a licensee of a spectrum licence may apply to the ACMA for the licence to be renewed.96 In that case, the application must be made within the renewal application period if one is specified in the licence—otherwise the application must be made within two years of the date that the licence is due to expire.97 This two year period is referred to by submitters to the Senate Committee, but not in the Bill itself, as the ‘default renewal period’.

The Reform Bill contains a deeming provision so that if the ACMA gives a person a notice that is expressed to be a licence renewal notice, and the person responds to the notice by paying to the ACMA (on or before the due date) the amount specified in the notice, the person is taken to have made an application for the licence (or licences) to be renewed.98

Item 74 in Part 1 of Schedule 3 to the Reform Bill inserts proposed section 129 into the Radiocommunications Act about applications for renewal of apparatus licences. However, it is not in equivalent terms to the renewal of spectrum licences because:  it does not apply to a transmitter licence issued under section 101A or 102 or a

non-foundation digital radio multiplex transmitter licence and  where there is no renewal application period specified, the application must be made within the period which begins six months before the licence is due to expire and ends 60 days after

the licence expires.

Further information If an application is made for the renewal of a spectrum licence, the ACMA may, by written notice given to the applicant, require the applicant to provide further information within the period specified in the notice. Where the applicant does not comply with the requirement, the ACMA may notify the applicant that it refuses to consider the application or that it refuses to take any action, or any further action, in relation to the application.99

Item 74 in Part 1 of Schedule 3 to the Reform Bill inserts proposed section 129A into the Radiocommunications Act about applications for renewal of apparatus licences which is in equivalent terms.

Stakeholder comments Some stakeholders considered that a longer ‘default renewal period’ is required. For instance, AMTA proposed a five year period rather than the two years specified in the Reform Bill on the grounds that ‘it usually takes at least two years for a licensee to exit a band and this process could take as long as five years’.100

Telstra echoed this sentiment stating:

In the worst case, after allowing for the ACMA’s decision making process, a two year default renewal application period for spectrum licences could mean a mobile network operator may receive notification that a spectrum licence is not to be renewed with less than one year remaining on its licence term—

96. Item 44 in Part 1 of Schedule 3 to the Bill inserts proposed sections 77A—77E. 97. Radiocommunications Act, proposed subsections 77A(2) and (3). 98. Radiocommunications Act, proposed subsection 77A(10). 99. Radiocommunications Act, proposed section 77B. 100. AMTA, Submission, op. cit., p. 4.

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during which time all services reliant on that spectrum licence would need to be cleared. This is insufficient notice for a mobile operator, with several million customers, to clear a band. 101

Renewal of spectrum licences When an application is made for the renewal of a spectrum licence, the ACMA may, without following the procedures determined under section 60, renew the licence by issuing to the applicant a new spectrum licence.102

If the licence included a renewal statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist, the ACMA must be satisfied that the specified circumstances exist.103

The ACMA must not renew the licence by issuing a new spectrum licence that specifies a period that is 10 years or longer unless the ACMA is satisfied that it is in the public interest to do so.104

Item 76 in Part 1 of Schedule 3 to the Reform Bill inserts proposed subsections 130(2C)-(2F) into the Radiocommunications Act about applications for renewal of apparatus licences which is in equivalent terms.

In deciding whether to renew the licence, the ACMA may have regard to the following matters:

• whether the applicant has an outstanding liability to pay an amount of apparatus licence tax, spectrum licence tax, spectrum access charge or interim tax

• whether the applicant has contravened a condition of the licence

• whether a person authorised by the applicant has contravened a condition of the licence and the applicant was aware, or ought reasonably to have been aware, of the contravention—but failed to take reasonable steps to prevent it

• whether the applicant held another licence that was cancelled during the previous two years.105

Item 78 in Part 1 of Schedule 3 to the Reform Bill inserts proposed subsection 130(3A) into the Radiocommunications Act about applications for renewal of apparatus licences which is in equivalent terms.

Notice of refusal to renew If the ACMA refuses to renew a spectrum licence or renews a spectrum licence but not on the same conditions, the ACMA must give the licensee a written notice stating that fact.106 A decision to refuse to renew a spectrum licence, or a decision to renew a spectrum licence with different conditions may be subject to reconsideration by the ACMA.107

101. Telstra, Submission, op. cit., pp. 2-3. 102. Radiocommunications Act, proposed subsection 77C(1). 103. Radiocommunications Act, proposed subsection 77C(4). 104. Radiocommunications Act, proposed subsection 77C(5). 105. Radiocommunications Act, proposed subsection 77C(8). 106. Radiocommunications Act, proposed section 77D. Note that decisions to refuse to renew a spectrum licence or to change

licence conditions on renewal are reviewable decisions. 107. Item 101 in Part 1 of Schedule 3 to the Bill repeals and replaces paragraph 285(d).

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Timeline for decision making Existing section 286 of the Radiocommunications Act provides that where a person makes an application to the ACMA for such decision, that decision must be made within 90 days of ACMA receiving the application. The exception to that general rule is where the ACMA has requested further information from the applicant in writing, in which case the decision is to be made within 90 days of ACMA receiving that further information. If ACMA fails to advise the applicant within these time frames, it is deemed to have made a decision to refuse the application.

What the Reform Bill does First, the Reform Bill expands on these provisions so that there are distinctions between the decision-making timeframes for spectrum licences and apparatus licences.108 The effect of the amendments is to maintain the existing decision-making time frame for apparatus licences.

Second, it creates new decision-making timeframes with respect to applications for renewal of a spectrum licence.

A renewal decision-making period statement is included in a spectrum licence Where a renewal decision-making period statement is included in a spectrum licence, the ACMA must make a decision about the renewal of the spectrum licence:

• before the end of the renewal decision-making period specified in the statement or

• if the ACMA has, within that period required the applicant to give the ACMA further information then the decision-making period is extended by the number of days between when the notice was given and when the further information is received.109

If the ACMA has not informed the applicant of its decision within this timeframe—then the ACMA’s decision is deemed to be to refuse the application.110 In that case, it must prepare a written statement explaining why it was unable to make its decision within the required timeframe and give the statement to the applicant as soon as practicable after the end of that period.111

Renewal decision making period is not included in the licence If a renewal decision-making period statement is not included in a spectrum licence, the ACMA must make a decision about an application for the renewal of the spectrum licence:

• within six months after receiving the application or

• if within that period the ACMA required the applicant to give it further information—within six months of receiving the further information.112

Otherwise, the ACMA is deemed to have made a decision to refuse the application.113 In that case, the ACMA must prepare a written statement explaining why it was unable to make its decision within the required timeframe and give the statement to the applicant as soon as practicable after the end of the six month decision-making period.114

108. Items 103-106 in Part 1 of Schedule 3 to the Bill amend existing subsections 286(1) and (2) to create that distinction. 109. Radiocommunications Act, proposed subsection 286(3). 110. Radiocommunications Act, proposed subsection 286(4). 111. Radiocommunications Act, proposed subsection 286(5). 112. Radiocommunications Act, proposed subsection 286(6). 113. Radiocommunications Act, proposed subsection 286(7). 114. Radiocommunications Act, proposed subsection 286(8).

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Stakeholder comments Some stakeholders have raised concerns about the deemed decision to refuse a renewal application—stating that it ‘should be reversed’.115 However, it seems unlikely that a deemed decision to renew a spectrum licence would not be in the public interest, given the duration of the licence and the implications for the ACMA in having to manage spectrum that may have been inappropriately allocated.

Issuing further licences Existing section 78 of the Radiocommunications Act requires the ACMA to, from time to time, publish on its website a notice that:

• states where information may be obtained about the spectrum licences that will expire during a period specified in the notice and the parts of the spectrum to which they relate and

• invites expressions of interest from persons who wish to have issued to them spectrum licences relating to those parts of the spectrum.

Item 66 in Part 1 of Schedule 3 to the Reform Bill inserts proposed section 105A into the Radiocommunications Act about notice of apparatus licences which are about to expire in equivalent terms.

Apparatus licences Existing section 97 provides that the ACMA may issue transmitter licences and receiver licenses. Item 54 of Schedule 3 to the Reform Bill repeals and replaces subsections 97(2) and (3) of the Radiocommunications Act to restate what transmitter and receiver licences authorise the licence holder to operate.

Many of the provisions relating to licences are in equivalent terms as shown above. The matters discussed below are specific to apparatus licences.

Price-based allocation system Currently Part 3.3 of the Radiocommunications Act sets out matters relating to issuing apparatus licences. Within that Part, existing section 106 provides that the ACMA may determine, in writing, a price-based system for allocating and/or issuing specified transmitter licences. That determination is a legislative instrument.116 Importantly a legislative instrument made under subsection 106(1) of the Radiocommunications Act is not disallowable.117

Items 67-73 of the Reform Bill amend existing section 106 to, amongst other things:

• add additional examples of the types of eligibility criteria a prospective licensee must meet118

• provide flexibility in terms of how the ACMA can impose allocation limits in price-based allocations119 and

• impose a requirement on the ACMA to consult with the ACCC about limits in any particular allocation process.120

115. C Althaus (CEO Australian Mobile Telecommunications Association), Evidence to the Senate Environment and Communications Legislation Committee, Inquiry into the Radiocommunications Bills 2020, 12 October 2020, p. 2. 116. Item 73 in Part 1 of Schedule 3 to the Bill inserts proposed subsection 106(18) and Explanatory Memorandum, Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020, p. 43. 117. See Table item 29 at section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015. 118. Radiocommunications Act, proposed paragraphs 106(2)(ba) and (bb). 119. Radiocommunications Act, proposed subsections 106(3) and (4).

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Class licences Currently Part 3.4 of the Radiocommunications Act governs the issuing of class licences. In particular subsection 138(1) provides that the ACMA must not issue a class licence that authorises the operation of radiocommunication devices at certain frequencies.

The Reform Bill repeals subsection 138(1) and inserts proposed subsections 138(1) and (1A) so that where a spectrum licence authorises the operation of radiocommunications devices at one or more frequencies and within one or more areas then the ACMA must not issue a class licence that authorises the operation of radiocommunications devices at those frequencies and within those areas.

Similarly if a marketing plan is in force in relation to the issue of a spectrum licence that authorises the operation of radiocommunications devices at one or more frequencies and within one or more areas then the ACMA must not issue a class licence that authorises the operation of radiocommunications devices at those frequencies and within those areas.121

The exception to these general rules lies in existing subsection 138(2) of the Radiocommunications Act which is not changed by the Reform Bill. That exception is:

• the ACMA must be satisfied that issuing the class licence would not result in unacceptable levels of interference to the operation of radiocommunications devices operated, or likely to be operated, under spectrum licences and issuing the class licence would be in the public interest and

• the ACMA must consult all licensees of spectrum licences who may be affected by the proposed class licence.

Re-allocating spectrum Currently Part 3.6 of the Radiocommunications Act deals with re-allocating spectrum which is encumbered.

The Reform Bill makes a range of amendments, including deletions122 to ensure that the ACMA rather than the Minister is the decision-maker in relation to re-allocation declarations.123

Schedule 4 Quick guide to Schedule 4 The amendments in Schedule 4 to the Reform Bill are about the ACMA’s power to make equipment rules which:  prescribe standards for equipment and  impose obligations or prohibitions in relation to equipment. In addition the amendments involve:  the roles and responsibilities of the ACMA in relation to interim or permanent bans on

120. Radiocommunications Act, proposed subsection 106(11A). 121. Item 80 in Part 1 of Schedule 3 to the Bill repeals existing subsection 138(1) and inserts proposed subsections 138(1) and (1A). 122. The following are deleted: sections 153C (by item 89), section 153E, 153F, 153G (by item 90) and subsection 153P(3)

(by item 100). 123. Items 82, 84, 91, 94 and 99 in Part 1 of Schedule 3 to the Bill omit references to ‘Minister’ and substitute references to ‘the ACMA’.

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equipment  equipment recalls and  establishing civil penalties and criminal offences in respect of breaches of certain

requirements of the Radiocommunications Act—these will be enforceable in accordance with the provisions set out in Schedule 6 to the Reform Bill.

Commencement The amendments in Part 1 of Schedule 4 to the Reform Bill commence at the same time as the amendments in Schedule 1 to the Bill.

The amendments in Part 2 of Schedule 4 commence immediately after the commencement of the amendments in Part 1 of Schedule 4 or on the commencement of the Federal Circuit and Family Court of Australia Act 2020—whichever is the later. However, the provisions do not commence at all if the Federal Circuit and Family Court of Australia Act 2020 does not commence.124

The amendments in Parts 3 and 4 of Schedule 4 commence at the same time as the amendments in Schedule 1 to the Reform Bill.

Key issues and provisions Currently the ACMA is empowered under the Radiocommunications Act to:

… make standards applying to devices and labelling notices that apply to manufacturers and importers of devices for purposes including managing electromagnetic compatibility, managing interference and the protection of health and safety.

The Bill proposes to allow the ACMA to make equipment rules which could broaden the range of parties in the equipment supply chain on whom compliance obligations may be imposed, specifically recognising online supply. 125

The Reform Bill inserts proposed Part 4.1—Equipment into the Radiocommunications Act.126 Relevant to the terms of new Part 4.1 are the following definitions which are inserted by the Bill.

The term, equipment means:

• a radiocommunications transmitter or radiocommunications receiver

• anything designed or intended for radio emission

• anything, irrespective of its use or function or the purpose of its design, that is capable of radio emission or

• anything that has a use or function that is capable of being interfered with by radio emission.127

For the purposes of the Reform Bill, the term interference means:

• in relation to radiocommunications—interference to, or with, radiocommunications that is attributable, whether wholly or partly and whether directly or indirectly, to an emission of electromagnetic energy by equipment or

124. The Bill proposing the Federal Circuit and Family Court of Australia Act 2020 was introduced into the House of Representatives on 5 December 2019 and at the time of writing remains has not yet been debated in that House. See: Parliament of Australia, ‘Federal Circuit and Family Court of Australia Bill 2019 homepage’, Australian Parliament website.

125. ACMA, Submission, op. cit., p. 5. 126. Item 24 in Part 1 of Schedule 4 to the Bill inserts proposed Part 4.1 into the Radiocommunications Act. 127. Item 6 in Part 1 of Schedule 4 to the Bill inserts the definition into the Radiocommunications Act, section 5.

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• in relation to the uses or functions of equipment—interference to, or with, those uses or functions that is attributable, whether wholly or partly and whether directly or indirectly, to an emission of electromagnetic energy by equipment.128

The term, operate

• when used in relation to a radiocommunications transmitter, receiver or device; a transmitter that is a radiocommunications transmitter; or equipment that is a radiocommunications transmitter or receiver means operate for the purposes of, or in connection with, radiocommunications

• when used in relation to a transmitter that is not a radiocommunications transmitter—means operate (within the ordinary meaning of that expression) or

• when used in relation to equipment that is neither a radiocommunications transmitter nor a radiocommunications receiver—means operate (within the ordinary meaning of that expression).129

Making equipment rules The ACMA may, by legislative instrument, make rules (called equipment rules) relating to equipment.130 The relevant equipment rules are intended to achieve certain objectives, including but not limited to:

• ensuring the electromagnetic compatibility of equipment131

• containing interference to radiocommunications132

• containing interference to any uses or functions of equipment133

• protecting the health or safety of individuals from any adverse effect likely to be attributable to radio emissions resulting from a reasonably foreseeable use (or misuse) of radiocommunications transmitters134 and

• ensuring that radiocommunications transmitters and designated radiocommunications receivers are not supplied to persons intending to operate those transmitters and/or receivers unless those persons are authorised by or under the Radiocommunications Act.135

The equipment rules may make provision in relation to a matter by conferring a power on the ACMA.136 In addition, the equipment rules may make provision in relation to a matter by conferring a power on a person who holds a specified kind of accreditation.137 (See the discussion about accreditation under Schedule 5.)

Prescribing standards The equipment rules may prescribe standards which require that equipment has particular design features or meets particular performance requirements.138

128. Item 7 in Part 1 of Schedule 4 to the Bill inserts the definition into the Radiocommunications Act, section 5. 129. Item 11 in Part 1 of Schedule 4 to the Bill inserts the definition into the Radiocommunications Act, section 5. 130. Radiocommunications Act, proposed subsection 156(1). 131. Radiocommunications Act, proposed paragraph 156(3)(a). 132. Radiocommunications Act, proposed paragraph 156(3)(b). 133. Radiocommunications Act, proposed paragraph 156(3)(c). 134. Radiocommunications Act, proposed paragraph 156(3)(e). 135. Radiocommunications Act, proposed paragraphs 156(3)(g) and (h). 136. Radiocommunications Act, proposed section 161. 137. Radiocommunications Act, proposed subsection 162(1). 138. Radiocommunications Act, proposed subsection 158(1).

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Importantly an equipment standard must also be consistent with the objectives for equipment rules which are set out above.139

Obligations and prohibitions The equipment rules may impose obligations in relation to equipment such as ensuring:

• quality assurance programs in relation to equipment are conducted

• tests in relation to equipment are conducted

• labels are applied to equipment

• records are kept or retained

• things that are specified in the legislative rules are done.140

In addition, the Reform Bill provides that the equipment rules may impose prohibitions on a person in relation to equipment, for instance:

• prohibiting a person from applying a specified kind of label to equipment other than in specified circumstances141 and

• prohibiting a person who supplies (or offers to supply) equipment from publishing certain material about the equipment on the person’s website other than in specified circumstances.142

Permits The equipment rules may also prohibit the doing of an act or thing by a person unless the person holds a permit issued by the ACMA which authorises the person to do that act or thing.143

About offences and penalties

A failure to comply with a provision of the Radiocommunications Act may give rise to a criminal offence or a civil penalty. Criminal offences The standard of proof for a criminal offence is ‘beyond reasonable doubt’. The penalties for a criminal offence may be a fine or a term of imprisonment, or both. The Crimes Act 1914 is also relevant in that it deals with the amounts of penalties, including the method of calculating the penalty for a person or body corporate.144 Civil penalties In addition to criminal offences, Commonwealth statutes may contain civil penalties. The standard of proof for a civil penalty is ‘on the balance of probabilities’. Civil penalties provide an additional or alternative enforcement option, especially where there may be difficulty in proving the necessary fault element to establish a criminal offence.

Breaching the equipment rules and permit conditions The Reform Bill creates criminal offences broadly speaking where:

139. Radiocommunications Act, proposed subsection 158(5). 140. Radiocommunications Act, proposed subsections 159(1)-(7). 141. Radiocommunications Act, proposed subsection 159(10). 142. Radiocommunications Act, proposed subsections 159(11) but see also proposed subsections 159(8), (9) and (12). 143. Radiocommunications Act, proposed subsection 159(13) but see also proposed subsections 159(14)—(16) in relation to the

making of permits. 144. Crimes Act 1914, sections 4AA to 4E.

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• a person is subject to a prohibition imposed by the equipment rules and the person engages in conduct which contravenes the prohibition145 and

• a person is subject to an obligation imposed by the equipment rules and the person engages in conduct which contravenes the obligation.146

The maximum penalty in each case is 500 penalty units.147

In addition, the Reform Bill creates a criminal offence where a person is subject to an obligation imposed by the equipment rules, that obligation is an obligation to do an act or thing within a particular period or before a particular time and the person engages in conduct which contravenes the obligation.148 The maximum penalty in this case is 500 penalty units.149 However, the offence is a continuing offence. This means that for each day that the offence continues the maximum penalty is equivalent to 10 per cent of the maximum penalty—that is 50 penalty units per day.150

As the provisions creating these offences do not specify a fault element, the automatic fault element is intention.151 Where there is insufficient evidence to prove beyond a reasonable doubt that the person intended the conduct, the Reform Bill provides for the imposition of civil penalties in respect of the same circumstances as an alternative. In that case the maximum amount of the civil penalty is also 500 penalty units.152

Using protected symbols

About protected symbols The Reform Bill empowers the ACMA to make legislative instruments setting out the design of a symbol, the purpose of which is to indicate compliance by equipment with any standards that apply to the equipment and are prescribed by the equipment rules. This is called a protected symbol.153

Where a label which embodies such a symbol is applied to equipment, it is taken to indicate that the equipment meets the requirements of any standards that apply to the equipment and are prescribed by the equipment rules.154

Using a protected symbol Generally speaking the Reform Bill imposes civil penalties on a person who applies a protected symbol (or a symbol so closely resembling a protected symbol as to be likely to be mistaken for it) to goods that are imported, manufactured, produced, sold, offered for sale or let on hire. In that case, the maximum amount of the penalty is 50 penalty units.155

145. Radiocommunications Act, proposed subsection 160(1). 146. Radiocommunications Act, proposed subsection 160(2). 147. As a penalty unit is equivalent to $222, the maximum penalty is $111,000. 148. Radiocommunications Act, proposed subsection 160(3). 149. This is equivalent to $111,000. 150. Radiocommunications Act, proposed subsection 160(4). This means that the maximum daily penalty is $11,100. 151. Criminal Code Act 1995, subsection 5.6(1). 152. Radiocommunications Act, proposed subsections 160(5)-(8). This is equivalent to $111,000. 153. Radiocommunications Act, proposed subsections 166(1) and (2). 154. Radiocommunications Act, proposed subsection 166(3). 155. This is equivalent to $11,100. Radiocommunications Act, proposed subsection 165(1). Notes that proposed subsections

165(3) and (5) also impose civil penalties which are drafted to be consistent with the constitutional limits of the Bill.

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Interim bans The ACMA may, by notifiable instrument, impose an interim ban on equipment of a specified kind if:

• the ACMA has reasonable grounds to believe that equipment of that kind is designed to have an adverse effect on radiocommunications

• the ACMA has reasonable grounds to believe that a reasonably foreseeable use (or misuse) of equipment of that kind would be likely to substantially interfere with, disrupt or disturb radiocommunications or

• the equipment consists of radiocommunications transmitters and the ACMA has reasonable grounds to believe that radio emissions resulting from the operation of that equipment would be likely to adversely affect the health or safety of individuals.156

An interim ban comes into force on the day specified in the instrument imposing the ban and remains in force for 60 days. The ACMA may, by notifiable instrument, extend the period of the interim ban by up to 30 days.157

In the alternative, the ACMA may, by notifiable instrument, revoke the ban with effect from the day specified in the instrument.158

The Reform Bill imposes a civil penalty where a person supplies, or offers to supply, equipment for which an interim ban is in force to another person if the other person intends to operate the equipment. In that case, the maximum penalty is 200 penalty units.159 In addition the Reform Bill provides that a person must not operate equipment in respect of which an interim ban is in force.160 This is also subject to a maximum penalty of 200 penalty units. Where a person suffers loss or damage because of conduct that contravened these provisions, that person may recover the amount of the loss or damage by action in the Federal Court or the Federal Circuit Court of Australia.161

Scrutiny of Bills Committee comments The Scrutiny of Bills Committee questioned the use of notifiable instruments (rather than legislative instruments) to impose an interim ban on equipment.162 As with the Committee’s comments in relation to Schedule 2, it was concerned that notifiable instruments are not subject to the tabling, disallowance, sunsetting or consultation requirements that apply to legislative instruments, and are therefore not subject to parliamentary scrutiny.163 The Committee considered that the Explanatory Memorandum to the Reform Bill did not provide an adequate justification for the use of notifiable instruments and accordingly requested the Minister’s advice as to why it is necessary and appropriate for interim bans on equipment, the extension and revocation of interim bans and the declaration of amnesty periods for permanent bans to be made

156. Radiocommunications Act, proposed subsection 167(1). 157. Radiocommunications Act, proposed section 168. 158. Radiocommunications Act, proposed subsection 169(1). 159. Radiocommunications Act, proposed subsections 170(1) and (2). This is equivalent to $44,400. 160. Radiocommunications Act, proposed subsections 170(3). 161. Radiocommunications Act, proposed section 171. 162. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 12, 2020, op. cit., p. 11. 163. Ibid.

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by notifiable instrument. The Committee also sought advice on whether the Bill could be amended to provide that these matters will be dealt with by legislative instrument.164

The Minister advised that ‘[t]he power to make an interim ban is intended to be used as a temporary, short-term administrative measure to appropriately manage risks of immediate harm’.165 In relation to the declaration of amnesties, the Minister advised:

An amnesty is designed as an administrative tool to increase the effectiveness of a permanent ban by ameliorating the potential harshness of a permanent ban on persons who are in possession of prohibited equipment and the time the ban comes into force…While not designed to be legislative in nature, transparency is critical for the effective administration of amnesties and as such, providing that an amnesty may be made by notifiable instrument is appropriate.

166

In light of the Minister’s response, the Committee made no further comment on this matter, but asked that an addendum to the Explanatory Memorandum containing the key information provided by the Minister be tabled as soon as practicable.167

An addendum to the Explanatory Memorandum has since been published, stating that it responds to concerns raised by the Scrutiny of Bills Committee.168

Permanent bans The ACMA may, by legislative instrument, impose a permanent ban on equipment of a specified kind if:

• the ACMA is satisfied that equipment of that kind is designed to have an adverse effect on radiocommunications

• the ACMA is satisfied that a reasonably foreseeable use (or misuse) of equipment of that kind would be likely to substantially interfere with, disrupt or disturb radiocommunications or

• the equipment consists of radiocommunications transmitters and the ACMA is satisfied that radio emissions resulting from the operation of that equipment would be likely to adversely affect the health or safety of individuals.169

Criminal offences and civil penalties The Reform Bill creates criminal offences where a person supplies, or offers to supply, equipment for which a permanent ban is in force to another person if the other person intends to operate the equipment. In that case, the maximum penalty is imprisonment for two years or 1,000 penalty units, or both.170 In addition, the Reform Bill provides that a person must not operate equipment or possess (for the purpose of operating or supplying) equipment in respect of which a permanent ban is in force.171 The maximum penalty in either of those circumstances is also imprisonment for two years or 1,000 penalty units, or both.172

164. Ibid., pp. 11-12. 165. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 14, 2020, op. cit., p. 41. 166. Ibid., p. 42. 167. Ibid., pp.42-43. 168. Addendum to the Explanatory Memorandum, Radiocommunications Legislation Amendment (Reform and Modernisation) Bill

2020, p. 2. 169. Radiocommunications Act, proposed subsection 172(1). 170. Radiocommunications Act, proposed subsections 175(1) and (2). This is equivalent to $222,000. 171. Radiocommunications Act, proposed subsections 175(3) and (4). 172. This is equivalent to $222,000.

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In the alternative, the Reform Bill imposes civil penalties for equivalent conduct. In each case, the maximum penalty is 1,000 penalty units.173 A breach of the civil penalty provisions may give rise to an action for loss or damage by another person as a result of the conduct which led to the breach.174

ACMA may declare an amnesty The ACMA may, by notifiable instrument, declare an amnesty period for a specified permanent ban. In that case, the owner of relevant equipment may, during the amnesty period, agree with the ACMA to forfeit the equipment to the Commonwealth. Where this occurs the owner of the equipment will not be guilty of a criminal offence or liable for a civil penalty in respect of possession of the equipment.175

If the ACMA takes possession of the equipment, it must give the owner a receipt for the equipment. If it is subsequently determined that the ACMA was not entitled to take possession of the equipment then the ACMA must take all reasonable steps to return the equipment to its owner.176

Once at least 90 days have passed since the ACMA gave the owner a receipt for the equipment the ACMA may declare, in writing, that the equipment is forfeited to the Commonwealth. A copy of the declaration must be given to the owner of the equipment.177 The equipment may then be sold, destroyed or otherwise disposed of in accordance with the directions of the ACMA.178

Equipment recalls The Reform Bill empowers the ACMA to issue a recall notice, by legislative instrument, in respect of certain equipment. The recall power applies to:

• equipment that will or may cause substantial disruption, substantial disturbance or substantial interference to radiocommunications

• equipment designed to have an adverse effect on radiocommunications and

• equipment likely to adversely affect health or safety.179

In addition, the ACMA may, by legislative instrument, issue a recall notice for equipment of a specified kind if a person, in trade or commerce, supplies, or has supplied, equipment for which a permanent ban is in force and it is satisfied that one or more suppliers have not taken satisfactory action to recall the equipment.180

In each of those cases, the Reform Bill imposes an obligation on the ACMA to publish a notice stating:

• a recall notice has been issued

• the time when the recall notice commences, or is to commence

173. Radiocommunications Act, proposed section 176. This is equivalent to $222,000. 174. Radiocommunications Act, proposed section 177. 175. Radiocommunications Act, proposed section 179. 176. Radiocommunications Act, proposed section 180. 177. Radiocommunications Act, proposed subsections 181(1) and (2). 178. Radiocommunications Act, proposed section 182. 179. Radiocommunications Act, proposed subsections 183(1)-(3). 180. Radiocommunications Act, proposed subsection 183(4).

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• the kind of equipment to which the recall notice relates and

• the reason or reasons for issuing the recall notice.181

Obligations of a supplier Once a recall notice has been published a supplier has certain obligations. These depend on the matters to which the recall notice refers. They require the supplier to either:

• repair or modify the equipment specified in the recall notice182 or

• replace it or give a refund.183

The supplier bears the cost of repair, modification or replacement including any necessary transportation costs.184

Criminal offences and civil penalties The Reform Bill creates a criminal offence where a recall notice for equipment is in force which requires the person to do one or more things and a person engages in conduct that contravenes the notice. The maximum penalty is 1,000 penalty units.185 The Bill also imposes a civil penalty in near equivalent terms with an equivalent maximum penalty of 1,000 penalty units.186

Human Rights Committee comments The Human Rights Committee noted that the Reform Bill confers on the ACMA the power to make rules prescribing standards of radiocommunications equipment, and imposing obligations and prohibitions on equipment, including by establishing penalties for non-compliance. In addition, the Human Rights Committee noted that these measures may promote the right to health, by addressing any potential adverse health or safety effects of radio emissions.

However, of concern to the Human Rights Committee was that some of the proposed civil penalties in the Reform Bill:

… may engage criminal process rights, if those civil penalties are more properly to be regarded as criminal penalties for the purposes of human rights law. The committee notes that if this were the case, the civil penalty provisions in question must be shown to be consistent with the criminal process guarantees.

187

The response from the Minister to the Human Rights Committee is set out under the heading ‘Parliamentary Joint Committee on Human Rights’, above.188

181. Radiocommunications Act, proposed subsection 183(5). 182. Radiocommunications Act, proposed subsections 185(1)-(4). 183. Radiocommunications Act, proposed subsection 185(5)-(7) and proposed paragraph 184(1)(c). 184. Radiocommunications Act, proposed subsection 185(8). 185. Radiocommunications Act, proposed subsection 186(1). This is equivalent to $222,000. 186. Radiocommunications Act, proposed subsection 186(2). This is equivalent to $222,000. 187. Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, op. cit., pp. 72-73. 188. Parliamentary Joint Committee on Human Rights, Human Rights Scrutiny report, 13, 2020, 13 November 2020, pp. 129-131.

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Stakeholder comments Communications Alliance Ltd considers:

… this framework provides the necessary flexibility and recognition of the wide variety of supply models and the roles of the various parties in modern supply chains and will assist in promoting innovation and industry development opportunities within Australia. 189

Schedule 5 Quick guide to Schedule 5 The amendments in Schedule 5 to the Reform Bill add further conditions for spectrum and apparatus licences. In addition, the amendments expand the ACMA’s accreditation powers so that the ACMA may:  add further conditions for spectrum and apparatus licences  develop accreditation rules  determine the conditions of accreditation and  determine the processes and necessary qualifications to be applied in granting accreditation.

Commencement The amendments in Schedule 5 to the Reform Bill commence at the same time as the amendments in Schedule 1 to the Bill.

Key issues and provisions

Conditions on a spectrum licence Section 64 of the Radiocommunications Act provides that a spectrum licence authorises the person specified in the licence as the licensee—or a person authorised by that person—to operate a radiocommunications device in accordance with the licence. Operation of a radiocommunications device is not authorised by the spectrum licence if it is not in accordance with the conditions of the licence. Matters that those conditions must or may cover are currently set out in sections 66-71 of the Radiocommunications Act.

Item 4 in Part 1 of Schedule 5 to the Reform Bill inserts proposed subsections 71(3)-(5) to add the following matters that may be covered by conditions to a spectrum licence:

• a condition included in a spectrum licence may confer a power to make a decision of an administrative character on the ACMA

• a condition included in a spectrum licence may confer a power to make a decision of an administrative character on a person who holds a specified kind of accreditation and

• the legislative rules may authorise a person who holds a specified kind of accreditation to charge fees in relation to the exercise by the person of a power conferred by a condition included in a spectrum licence.

Item 4A in Part 1 of Schedule 5 to the Reform Bill inserts proposed section 73A to allow a condition of a spectrum licence included by a variation of the licence to confer administrative decision-making powers for spectrum licences on the ACMA or on a person who holds accreditation.

189. Communications Alliance Ltd, Submission, op. cit., p. 3.

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Conditions on an apparatus licence Similarly, section 107 of the Radiocommunications Act provides that an apparatus licence is subject to the condition that the licensee—or a person authorised by the licensee to operate a radiocommunications device under the licence—must comply with the Act.

Item 10 of Part 1 in Schedule 5 to the Bill inserts proposed section 110A into the Radiocommunications Act to empower the ACMA, by legislative instrument, to determine that an apparatus licence is taken to include certain conditions.

Proposed subsections 110A(5)-(7) allow the legislative instrument to confer administrative decision-making powers for apparatus licences on the ACMA or on a person who holds accreditation.

Accreditation Sections 263-266 of the Radiocommunications Act currently allow the ACMA to accredit persons and, in certain circumstances, to withdraw that accreditation, based on accreditation principles.

The Reform Bill repeals sections 263, 264 and 266 and replaces them so that the ACMA may, by legislative instrument, make rules (called the accreditation rules).190 The accreditation rules may:

• deal with the accreditation process191

• provide for procedures that must be followed in relation to deciding whether to accredit persons or to withdraw that accreditation192

• provide for the kinds of accreditation and the qualifications and other requirements required before a person can be given that kind of accreditation.193

The Reform Bill makes consequential amendment so that:

• the ACMA may, by written notice, give a person accreditation, consistent with the accreditation rules194

• the conditions of any accreditation are consistent with the accreditation rules195 and

• the ACMA may withdraw accreditation in accordance with the accreditation rules where it is satisfied that the relevant accreditation is no longer in accordance with the accreditation rules or the person has contravened the accreditation rules.196

Registration of licences Section 143 of the Radiocommunications Act requires the ACMA to establish and keep the Register of Radiocommunications Licences. The matters to be contained in the Register for spectrum licences and apparatus licences are set out in sections 144 and 147 of the Radiocommunications Act respectively.197

Currently the ACMA may refuse to include details of a radiocommunications transmitter that is proposed to be operated under a spectrum licence on the Register if the ACMA is satisfied that its

190. Item 16 in Part 1 of Schedule 5 to the Bill repeals and replaces section 266 of the Radiocommunications Act. 191. Radiocommunications Act, proposed subsection 266(2). 192. Radiocommunications Act, proposed subsections 266(3) and (4). 193. Radiocommunications Act, proposed subsection 266(5). 194. Radiocommunications Act, proposed section 263 which is repealed and replaced by item 15 in Part 1 of Schedule 5 to the Bill. 195. Radiocommunications Act, proposed section 264 which is repealed and replaced by item 15 in Part 1 of Schedule 5 to the Bill. 196. Radiocommunications Act, proposed section 264A, inserted by item 15 in Part 1 of Schedule 5 to the Bill. 197. The Radiocommunications (Register of Radiocommunications Licences) Determination 2017 sets out additional matters which

are to be included in the Register.

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operation could cause an unacceptable level of interference to other radiocommunications devices.198

Item 12 in Part 1 of Schedule 5 to the Reform Bill amends existing subsection 145(3) so that the ACMA may require, before details of a radiocommunications transmitter are included in the Register, that it be presented with a certificate, issued by an accredited person (consistent with the new accreditation regime). The certificate must state that operation of the device under the licence satisfies any conditions that are required to be satisfied. The Reform Bill also provides that the legislative rules may authorise a person who holds accreditation to charge fees in relation to such a certificate.199

Schedule 6 Quick guide to Schedule 6 The amendments in Schedule 6 to the Reform Bill update the ACMA’s compliance and enforcement powers, consistent with the recommendation in the Spectrum review.

Commencement The amendments in Part 5 of Schedule 6 to the Reform Bill commence on the day after Royal Assent.

The amendments in Parts 1, 2 and 4 of Schedule 6 to the Reform Bill commence at the same time as the amendments in Schedule 1 to the Bill.

The amendments in Part 3 of Schedule 6 commence on the later of the following:

• immediately after the commencement of the provisions in Parts 1 and 2 of Schedule 6 to the Reform Bill or

• the commencement of the Federal Circuit and Family Court of Australia Act 2020.

However, the provisions in Part 3 of Schedule 6 do not commence at all if the Federal Circuit and Family Court of Australia Act 2020 does not commence.200

Key issues and provisions—enforcement Item 31 in Part 1 of Schedule 6 to the Reform Bill repeals and replaces existing Part 5.5 of the Radiocommunications Act. Proposed Part 5.5-Enforcement applies the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) which provides a framework of standard regulatory powers exercised by agencies across the Commonwealth. It reflects the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers201 and applies to regulatory schemes which trigger its provisions through primary legislation—as this Bill does.

198. Radiocommunications Act, subsection 145(1). 199. Radiocommunications Act, proposed subsection 145(3A), inserted by item 13 in Part 1 of Schedule 5 to the Bill. 200. The Bill proposing the Federal Circuit and Family Court of Australia Act 2020 was introduced into the House of Representatives on 5 December 2019 and at the time of writing remains has not yet been debated in that House. See: Parliament of Australia,

‘Federal Circuit and Family Court of Australia Bill 2019 homepage’, Australian Parliament website. 201. Attorney-General’s Department (AG), A guide to framing Commonwealth offences, infringement notices and enforcement powers, [AG], [Canberra], September 2011.

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Civil penalties The Reform Bill creates a number of civil penalties that are enforceable under Part 4 of the Regulatory Powers Act.202 According to the Explanatory Memorandum to the Reform Bill:

The Regulatory Powers Act civil penalty framework has been included in the Act as part of a graduated enforcement regime. Amongst a number of policy reasons, the inclusion of civil penalties will reduce the regulator’s reliance on criminal sanctions. The provisions will allow ACMA to take enforcement action that is commensurate with the seriousness of a person’s breach of the Act.

203

Infringement notices Within new Part 5.5, proposed section 270 lists those sections of the Radiocommunications Act which are subject to an infringement notice under Part 5 of the Regulatory Powers Act.

Part 5 of the Regulatory Powers Act operates so that an infringement notice may be given if an infringement officer believes on reasonable grounds that a person has contravened a provision subject to an infringement notice. An infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.204

The Chair of the ACMA and a member of the staff of the ACMA who has been appropriately authorised are infringement officers for the purposes of the Radiocommunications Act.205

The contents of an infringement notice are set out in detail in section 104 of the Regulatory Powers Act including amongst other things:

• the day the notice is given and the name of the person to whom it is given

• the name and contact details of the person who gave the notice and brief details of the alleged contravention

• the amount that is payable under the notice and how payment may be made

• the requirement to pay the amount specified within 28 days after the day the notice is given and the consequences of a failure to do so—including the possibility of proceedings for a contravention of a civil penalty provision.

Under the Regulatory Powers Act, the maximum penalty that may be imposed for each contravention covered by an infringement notice is the lesser of one-fifth of the maximum penalty amount that a court could impose on the person for that contravention, and 12 penalty units for an individual206 or 60 penalty units for a corporation.207

Enforceable undertakings Proposed section 271 states that the provisions of the Radiocommunications Act are enforceable under Part 6 of the Regulatory Powers Act, which deals with enforceable undertakings. The Reform Bill provides that the ACMA is an authorised person in relation to those provisions.208

202. Radiocommunications Act, proposed section 269. 203. Explanatory Memorandum, Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020, p. 82. 204. Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act), subsection 103(2). 205. Radiocommunications Act, proposed subsection 270(2). 206. This is equivalent to $2,664. 207. Regulatory Powers Act, subsections 104(2). This is equivalent to $13,320. 208. Radiocommunications Act, proposed subsection 271(2).

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The Regulatory Powers Act operates so that the ACMA may accept undertakings that a person will take specified action or refrain from taking specified action. The ACMA may, by written notice given to the person, cancel the undertaking.209 In addition, the ACMA may apply to a relevant court (that is, the Federal Court or the Federal Circuit Court of Australia210) for an order where it believes that a person has breached their undertaking.211

The ACMA must publish an undertaking on its website.212

Injunctions Within new Part 5.5, proposed section 272 lists those sections of the Radiocommunications Act which are enforceable under Part 7 of the Regulatory Powers Act, which deals with injunctions. The ACMA is an authorised person in relation to those provisions.213

The Regulatory Powers Act will operate so that if a person has engaged, is engaging or is proposing to engage in conduct in contravention of a provision enforceable under Part 7 of the Regulatory Powers Act,214 the ACMA may apply to a relevant court for the grant of an injunction to restrain a person from engaging in specified conduct or requiring the person to do a thing.215

Forfeiture notices Specified sections of the Radiocommunications Act will be subject to a forfeiture notice.216

The forfeiture provisions will operate as follows:

• the Chair of the ACMA or a member of the staff of the ACMA who is authorised for this purpose will be designated forfeiture officers217

• a forfeiture notice may be given in circumstances where a designated forfeiture officer believes on reasonable grounds that:

- a person has contravened a provision that is subject to a forfeiture notice and - a thing was used, or otherwise involved, in the contravention of the provision218 • the forfeiture notice must set out certain matters, including but not limited to, the alleged contravention and a description of the thing to which the notice relates219

• the forfeiture notice must state that the owner of the thing may choose not to agree to forfeit it to the Commonwealth and, if the owner so chooses, proceedings seeking a civil penalty order or orders may be brought in relation to the alleged contravention or contraventions 220

• the person to whom a forfeiture notice is given may be the owner of the thing to which the notice relates221

209. Regulatory Powers Act, section 114. 210. Radiocommunications Act, proposed subsection 271(3). 211. Regulatory Powers Act, section 115. 212. Radiocommunications Act, proposed paragraph 271(4)(a). 213. Radiocommunications Act, proposed subsection 272(2). 214. The relevant provisions are set out at Radiocommunications Act, proposed subsection 272(1). 215. Regulatory Powers Act, section 121. 216. Radiocommunications Act, proposed section 273. 217. Radiocommunications Act, proposed section 283. 218. Radiocommunications Act, proposed subsection 274(1). 219. Radiocommunications Act, proposed subsection 275(1). 220. Radiocommunications Act, proposed paragraph 275(1)(j). 221. Radiocommunications Act, proposed subsection 275(2).

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• a person to whom a forfeiture notice has been given may make written representations to the ACMA seeking the withdrawal of the notice222 in which case the ACMA is required to take into account those written representations in making its decision about whether or not the notice is to be withdrawn223

• the ACMA may take into account other specified matters in making that decision, including but not limited to:

- whether a court has previously imposed a penalty on the person for a contravention of a provision subject to a forfeiture notice and - the circumstances of the alleged contravention or contraventions224 • a notice of the withdrawal of a forfeiture notice must be given to the person to whom the

forfeiture notice was given setting out the matters specified in the Reform Bill225

• where a person agrees to forfeit the thing specified in the notice to the Commonwealth then:

- any liability of the person for the alleged contravention or contraventions is discharged - proceedings seeking a civil penalty order or orders may not be brought and - the person may not be prosecuted in a court for an offence that is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute a

contravention in the notice.226 Once a forfeiture notice relating to a thing is given to a person and the owner of the thing agrees to forfeit it to the Commonwealth, the ACMA is able to take possession of the thing and must give the owner a receipt to that effect.227 Ninety days after that occurs the ACMA may declare, in writing, that the thing is forfeited to the Commonwealth.228 In that case, the thing may be sold, destroyed or otherwise disposed of in accordance with the directions of the ACMA.229

Court ordered forfeiture In addition to the process outlined above, the Reform Bill provides that where a court convicts a person of an offence against the Radiocommunications Act, or makes a civil penalty order in relation to the contravention of a civil penalty provision of that Act, the court may order the forfeiture to the Commonwealth of anything used, or otherwise involved, in the commission of the offence or the contravention of the civil penalty provision.230 In that case, the forfeited goods may be sold, destroyed or otherwise disposed of in accordance with the directions of the ACMA.231

Inspectors Proposed section 284 of the Radiocommunications Act establishes the position of inspector for the purposes of the Act. An inspector is:

• a Commonwealth officer appointed by the ACMA, by written instrument

• a Commonwealth officer included in a class of Commonwealth officers appointed by the ACMA, by notifiable instrument

222. Radiocommunications Act, proposed subsection 277(1) 223. Radiocommunications Act, proposed paragraph 277(4)(a). 224. Radiocommunications Act, proposed subparagraphs 277(4)(b)(i) and (ii). 225. Radiocommunications Act, proposed subsection 277(5). 226. Radiocommunications Act, proposed section 278. 227. Radiocommunications Act, proposed subsection 279(1). 228. Radiocommunications Act, proposed subsection 280(1). 229. Radiocommunications Act, proposed paragraph 281(a). 230. Radiocommunications Act, proposed section 284L. 231. Radiocommunications Act, proposed section 284M.

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• an eligible State officer appointed by the ACMA, by written instrument, to be an inspector for the purposes of the Act232

• an eligible State officer included in a class of eligible State officers appointed by the ACMA, by notifiable instrument, to be inspectors for the purposes of this Act or

• a member (other than a special member) of the Australian Federal Police.

General powers of inspectors The Reform Bill sets out the general powers of inspectors. In particular, if an inspector suspects on reasonable grounds that a person has done an act in respect of which the person is required to hold an apparatus licence, an authorisation under section 114, a spectrum licence, an authorisation under section 68, a certificate of proficiency or a permit the inspector may, by written notice given to the person, require the person to:

• produce the licence, authorisation, certificate or permit or evidence of its existence and contents and

• do so within the period—being no less than 14 days—and in the manner specified in the notice.233

Directions to licensees An inspector may give a written direction to the holder of an apparatus licence or a spectrum licence for the purpose of avoiding, minimising or reducing interference with radiocommunications in relation to either or both of the following:

• the installation, maintenance or operation of a radiocommunications device that is, or is to be, operated under the licence;

• anything that is, or is to be, installed or used in connection with a radiocommunications device that is, or is to be, operated under the licence.

A person who is given such a direction must comply with it.234

Other powers of inspectors The Reform Bill sets out a range of additional powers for inspectors including the power to:

• direct a person to operate a transmitter for the purpose of investigating interference (or the risk of interference) with radiocommunications235 and

• enter premises and adjust transmitters in emergencies.236

Monitoring and investigation powers Proposed section 284A of the Radiocommunications Act applies the monitoring powers in Part 2 of the Regulatory Powers Act, which creates a framework for monitoring whether legislative provisions are being complied with and whether information given in compliance (or purported

232. Radiocommunications Act, proposed subsection 284(4) defines an eligible state officer as a person who, whether on a full-time or part-time basis, and whether in a permanent capacity or otherwise (a) is in the service or employment of an eligible State or an authority of an eligible State or (b) holds or performs the duties of any office or position established by or under a law of an eligible State, and includes a member of the police force of an eligible State.

233. Radiocommunications Act, proposed subsections 284J(1) and (6). 234. Radiocommunications Act, proposed section 284F. 235. Radiocommunications Act, proposed section 284H. 236. Radiocommunications Act, proposed section 284KA.

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compliance) with an Act is correct. It includes powers of entry (by consent or under a monitoring warrant237) and inspection. The following provisions are subject to monitoring powers:

• an offence against a provision of Part 4.1 of the Radiocommunications Act

• a civil penalty provision of Part 4.1 or

• an offence against subsection 284J(8) of the Radiocommunications Act.238

Basic monitoring powers The relevant monitoring powers include the power in section 19 of the Regulatory Powers Act to:

• search the premises and any thing on the premises

• examine or observe any activity conducted on the premises

• inspect, examine, take measurements of or conduct tests on any thing on the premises

• make any still or moving image or any recording of the premises or any thing on the premises

• inspect any document on the premises

• take extracts from, or make copies of, any such document and

• take onto the premises such equipment and materials as the authorised person requires in order to exercise powers in relation to the premises.

For the purposes of the monitoring powers in the Radiocommunications Act, an inspector is the authorised person.239

There are additional powers in the Regulatory Powers Act which permit an authorised person to:

• operate electronic equipment on the premises, to put relevant data in documentary form and remove those documents from the premises240

• secure electronic equipment where an authorised person enters premises under a monitoring warrant241

• secure a thing for a period of 24 hours in circumstances where the thing is found during the exercise of monitoring powers on the premises and an authorised person believes on reasonable grounds that it relates to the contravention of a provision that is subject to monitoring242 and

• to ask questions and seek production of documents once on the premises.243

Issuing a monitoring warrant A monitoring warrant may be issued if the issuing officer244 is satisfied that it is reasonably necessary for one or more authorised persons to have access to premises for the purpose of determining whether a provision that is subject to monitoring has been, or is being, complied with

237. Regulatory Powers Act, subsection 18(2). 238. Radiocommunications Act, proposed subsection 284A(1). 239. Radiocommunications Act, proposed subsection 284A(4). 240. Regulatory Powers Act, subsections 20(1) and (4). 241. Regulatory Powers Act, subsection 21(2). 242. Regulatory Powers Act, subsection 22(1). 243. Regulatory Powers Act, section 24. 244. Radiocommunications Act, proposed subsection 284A(5) defines an issuing officer as a Judge of the Federal Court or the

Federal Circuit Court of Australia who has consented to be an issuing officer for the purposes of the Act, or a magistrate.

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or that information subject to monitoring is correct.245 The specific requirements of a monitoring warrant are set out in section 32 of the Regulatory Powers Act.

Investigation powers Nature of investigation powers Proposed section 284B of the Radiocommunications Act sets out the provisions that are subject to the use of investigation powers under Part 3 of the Regulatory Powers Act. They are:

• an offence provision of the Radiocommunications Act or

• a civil penalty provision of that Act.

Part 3 of the Regulatory Powers Act applies to evidential material in respect of the above.246 Under the Reform Bill an inspector is an authorised applicant in relation to evidential material.247 The investigation powers which are imported from section 49 of the Regulatory Powers Act include the power to:

• where the occupier consents to entry—search the premises and any thing on the premises for the evidential material the authorised officer suspects on reasonable grounds may be on the premises

• where the entry is under warrant—search the premises and any thing on the premises for the kind of evidential material specified in the warrant and to seize evidential material of that kind if the authorised officer finds it on the premises

• inspect, examine, take measurements of, or conduct tests on, the evidential material

• make any still or moving image or any recording of the premises or evidential material and

• take onto the premises such equipment and materials as the authorised officer requires for the purpose of exercising powers in relation to the premises.

There are additional powers in the Regulatory Powers Act which permit an authorised person to:

• operate electronic equipment on the premises, to put relevant data in documentary form and remove those documents from the premises248

• secure electronic equipment where an authorised person enters premises under an investigation warrant249 and

• where an authorised person enters premises under an investigation warrant, seize a thing that is not evidential material specified in the warrant in circumstances where the authorised person believes on reasonable grounds that the thing is evidence of the contravention of a related provision.250

Issuing an investigation warrant Where an authorised person suspects on reasonable grounds that there may be evidential material on any premises, he or she may enter the premises and use the investigation powers so long as the occupier consents or the authorised person has an investigation warrant.251 The

245. Regulatory Powers Act, section 32. 246. Regulatory Powers Act, section 39 sets out the meaning of the term evidential material. 247. Radiocommunications Act, proposed subsection 284B(2). 248. Regulatory Powers Act, subsections 50(1) and (2). 249. Regulatory Powers Act, subsection 51(2). 250. Regulatory Powers Act, section 52. 251. Regulatory Powers Act, section 48.

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provisions in Part 3 of the Regulatory Powers Act set out the requirements for applying for an investigation warrant and its contents.252

Schedule 7 Quick guide to Schedule 7 The amendments in Schedule 7 to the Bill set out the ACMA’s information gathering powers, including its power to inspect and copy a document and to retain possession of that copy.

Commencement The amendments in Schedule 7 to the Reform Bill commence at the same time as the amendments in Schedule 1 to the Bill

Key issues and provisions Item 1 in Part 1 of Schedule 7 to the Reform Bill inserts proposed Part 5.5A—Information-gathering powers into the Radiocommunications Act.

Within new Part 5.5A, proposed section 284S empowers the ACMA to require a person to provide information, or produce a document that relates to the supply or operation of radiocommunications devices and compliance or non-compliance with conditions of licenses. According to the Explanatory Memorandum to the Reform Bill:

These information gathering powers also enable ACMA to seek information from a person that operates a radiocommunications device under a current licence or a licence that may be issued in the future, to assist ACMA in its spectrum management functions associated with planning the future use of the spectrum. ACMA will use these new powers to seek information and documents that are reasonably likely to assist ACMA in managing, limiting or preventing interference, or managing health and safety concerns.

253

Stakeholder comments According to SBS:

The proposed introduction of information-gathering powers for the ACMA should be carefully considered to avoid duplicating existing regulatory requirements or additional administrative burdens on industry participants. They should not be used to require market-sensitive information which, if disclosed, may have an adverse impact on spectrum users’ commercial positions or negotiations.

254

The ABC also expressed concern that there is a risk arising from the information-gathering powers as they ‘could force the ABC to disclose commercially sensitive matters’.255

Concluding comments The current legislative framework for the management of spectrum is over 20 years old. The Spectrum review found the existing spectrum management arrangements to be slow, rigid and administratively cumbersome.

252. Regulatory Powers Act, section 70. 253. Explanatory Memorandum, Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020, p. 97. 254. Special Broadcasting Service (SBS), Submission to the Senate Standing Committee on Environment and Communications, Inquiry into the Radiocommunications Bills 2020, [Submission no. 3], 22 September 2020.

255. ABC, Submission, op. cit., p. 2.

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Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 [and associated Bills] 49

The Reform Bill responds to some of the recommendations of the Spectrum review by clarifying the roles and responsibilities of the Minister in setting government policy and of the ACMA in implementing that policy. In addition the Reform Bill aligns the processes for spectrum licences and apparatus licences.

Stakeholders are largely supportive of the measures in the Reform Bill which have been mooted since the Spectrum review published its recommendations in 2015.

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