Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020 (Cth)

Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020 No. 151, 2020 Compilation No. 1 Compilation date: 15 September 2021 Registered: 15 September 2021 This compilation only includes editorial changes About this compilation This compilation This is a compilation of the Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020 that shows the text of the law as amended and in force on 15 September 2021 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents 1 Short title 2 Commencement 3 Schedules Schedule 1—Object Radiocommunications Act 1992 Schedule 2—Policy statements and work program Part 1—Amendment of the Radiocommunications Act 1992 Radiocommunications Act 1992 Part 2—Other amendments Australian Communications and Media Authority Act 2005 Part 3—Application provisions Schedule 3—Licences etc. Part 1—Amendment of the Radiocommunications Act 1992 Radiocommunications Act 1992 Part 2—Application and transitional provisions Schedule 4—Equipment etc. Part 1—Amendment of the Radiocommunications Act 1992 Radiocommunications Act 1992 Part 2—Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2021 Radiocommunications Act 1992 Part 3—Other amendments Australian Communications and Media Authority Act 2005 Telecommunications Act 1997 Trans‑Tasman Mutual Recognition Act 1997 Part 4—Application and transitional provisions Schedule 5—Accreditation etc. Part 1—Amendment of the Radiocommunications Act 1992 Radiocommunications Act 1992 Part 2—Application and transitional provisions Schedule 6—Compliance and enforcement Part 1—Amendment of the Radiocommunications Act 1992 Radiocommunications Act 1992 Part 2—Consequential amendments Australian Communications and Media Authority Act 2005 Telecommunications (Interception and Access) Act 1979 Part 3—Amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2021 Radiocommunications Act 1992 Part 4—Transitional provisions Division 1—General Division 2—Infringement notices Division 3—Enforceable undertakings Part 5—Eligible States Schedule 7—Information‑gathering powers Part 1—Amendments Radiocommunications Act 1992 Part 2—Transitional provisions Schedule 8—Miscellaneous Part 1—Amendment of the Radiocommunications Act 1992 Radiocommunications Act 1992 Part 2—Transitional provisions Schedule 9—Datacasting Part 1—Amendment of the Radiocommunications Act 1992 Radiocommunications Act 1992 Part 2—Other amendments Australian Communications and Media Authority Act 2005 Broadcasting Services Act 1992 Competition and Consumer Act 2010 Income Tax Assessment Act 1997 Part 3—Transitional provisions Schedule 10—Public inquiries Part 1—Amendment of the Radiocommunications Act 1992 Radiocommunications Act 1992 Part 2—Other amendments Australian Communications and Media Authority Act 2005 Schedule 11—Duration of licences Radiocommunications Act 1992 Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history Endnote 5—Editorial changes An Act to amend the Radiocommunications Act 1992, and for other purposes 1 Short title This Act is the Radiocommunications Legislation Amendment (Reform and Modernisation) Act 2020. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provisions Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 17 December 2020 2. Schedule 1 A single day to be fixed by Proclamation. 17 June 2021 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 3. Schedules 2 and 3 At the same time as the provisions covered by table item 2. 17 June 2021 4. Schedule 4, Part 1 At the same time as the provisions covered by table item 2. 17 June 2021 5. Schedule 4, Part 2 The later of: 1 September 2021 (a) immediately after the commencement of the provisions covered by table item 4; and (paragraph (b) applies) (b) the commencement of the Federal Circuit and Family Court of Australia Act 2021. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. 6. Schedule 4, Parts 3 and 4 At the same time as the provisions covered by table item 2. 17 June 2021 7. Schedule 5 At the same time as the provisions covered by table item 2. 17 June 2021 8. Schedule 6, Parts 1 and 2 At the same time as the provisions covered by table item 2. 17 June 2021 9. Schedule 6, Part 3 The later of: 1 September 2021 (a) immediately after the commencement of the provisions covered by table item 8; and (paragraph (b) applies) (b) the commencement of the Federal Circuit and Family Court of Australia Act 2021. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. 10. Schedule 6, Part 4 At the same time as the provisions covered by table item 2. 17 June 2021 11. Schedule 6, Part 5 The day after this Act receives the Royal Assent. 18 December 2020 12. Schedules 7 to 10 At the same time as the provisions covered by table item 2 17 June 2021 13. Schedule 11 A single day to be fixed by Proclamation. 17 June 2021 However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedules Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Object Radiocommunications Act 1992 1 Section 3 Repeal the section, substitute: 3 Object The object of this 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: (a) facilitates the efficient planning, allocation and use of the spectrum; and (b) facilitates the use of the spectrum for: (i) commercial purposes; and (ii) defence purposes, national security purposes and other non‑commercial purposes (including public safety and community purposes); and (c) supports the communications policy objectives of the Commonwealth Government. Schedule 2—Policy statements and work program Part 1—Amendment of the Radiocommunications Act 1992 Radiocommunications Act 1992 1 Section 5 Insert: Ministerial policy statement has the meaning given by section 28B. spectrum management functions, in relation to the ACMA, has the same meaning as in the Australian Communications and Media Authority Act 2005. spectrum management powers, in relation to the ACMA, means the powers conferred on the ACMA by or under: (a) this Act; or (b) the Radiocommunications (Receiver Licence Tax) Act 1983; or (c) the Radiocommunications (Spectrum Licence Tax) Act 1997; or (d) the Radiocommunications Taxes Collection Act 1983; or (e) the Radiocommunications (Transmitter Licence Tax) Act 1983; or (f) Part 14AA of the Broadcasting Services Act 1992; or (g) section 12 of the Australian Communications and Media Authority Act 2005, to the extent that the powers relate to the performance of the ACMA's spectrum management functions. 2 At the end of Chapter 1 Add: Part 1.5—Ministerial policy statements 28A Simplified outline of this Part • In performing its spectrum management functions, and exercising its spectrum management powers, the ACMA must have regard to any relevant Ministerial policy statements. 28B Ministerial policy statements (1) The Minister may, by notifiable instrument, specify a policy of the Commonwealth Government that is to apply in relation to: (a) the performance of any of the ACMA's spectrum management functions; or (b) the exercise of any of the ACMA's spectrum management powers. (2) An instrument under subsection (1) is to be known as a Ministerial policy statement. 28C The ACMA must have regard to Ministerial policy statements (1) In performing its spectrum management functions, and exercising its spectrum management powers, the ACMA must have regard to any relevant Ministerial policy statements. (2) A contravention of subsection (1) does not affect the validity of: (a) an instrument made by the ACMA; or (b) anything else done by the ACMA; in the performance of its functions or the exercise of its powers. Part 1.6—The ACMA's work program 28D Simplified outline of this Part • At least once each financial year, the ACMA must determine a work program in relation to its spectrum management functions and its spectrum management powers. • Before determining a work program, the ACMA must: (a) consult the Minister; and (b) undertake any other consultation that is appropriate and reasonably practicable. 28E The ACMA's work program (1) At least once each financial year, the ACMA must determine a work program in relation to its spectrum management functions and its spectrum management powers. (2) A work program must be for a period of not less than 5 financial years. (3) If the ACMA has a work program (the original work program), the ACMA may determine a work program (the new work program) that is expressed to replace the original work program. If the ACMA does so, the original work program is taken to be revoked when the new work program comes into force. (4) The ACMA must publish a work program on the ACMA's website. (5) A work program is not a legislative instrument. 28F Consultation (1) Before determining a work program, the ACMA must: (a) consult the Minister; and (b) undertake any other consultation that is: (i) considered by the ACMA to be appropriate to undertake; and (ii) reasonably practicable to undertake. (2) A contravention of subsection (1) does not affect the validity of the work program. Part 2—Other amendments Australian Communications and Media Authority Act 2005 3 At the end of section 57 Add: ; and (g) a summary outline of the operation of subsection 28C(1) of the Radiocommunications Act 1992 during the period; and (h) if a work program was applicable to the period under section 28E of the Radiocommunications Act 1992—a report on the extent to which the ACMA's activities during the period gave effect to the work program. Part 3—Application provisions 4 Application—the ACMA's work program Section 28E of the Radiocommunications Act 1992 (as amended by this Schedule) does not apply in relation to the financial year in which this item commences. Schedule 3—Licences etc. Part 1—Amendment of the Radiocommunications Act 1992 Radiocommunications Act 1992 1 Subparagraph 4(a)(ii) Omit "and conversion plans". 2 Section 5 (definition of conversion plan) Repeal the definition. 3 Section 5 Insert: direct allocation has the meaning given by section 60A. public interest statement: (a) for a spectrum licence—has the meaning given by section 65A; or (b) for an apparatus licence—has the meaning given by section 103A. renewal application period: (a) for a spectrum licence—has the meaning given by section 65A; or (b) for an apparatus licence—has the meaning given by section 103A. renewal application period statement: (a) for a spectrum licence—has the meaning given by section 65A; or (b) for an apparatus licence—has the meaning given by section 103A. renewal decision‑making period, for a spectrum licence, has the meaning given by section 65A. renewal decision‑making period statement, for a spectrum licence, has the meaning given by section 65A. renewal statement: (a) for a spectrum licence—has the meaning given by section 65A; or (b) for an apparatus licence—has the meaning given by section 103A. 3A After subsection 27(2) Insert: (2A) A determination under subsection (2) may confer a power to make a decision of an administrative character on a person or the ACMA. 4 Paragraph 29(3)(a) Repeal the paragraph. 4A After subsection 30(2) Insert: (2A) A spectrum plan may confer a power to make a decision of an administrative character on the ACMA. 5 Part 2.2 (heading) Omit "Conversion plans and marketing", substitute "Marketing". 5A After subsection 32(5) Insert: (5A) A frequency band plan may confer a power to make a decision of an administrative character on the ACMA. 6 Section 36 Repeal the section. 7 Section 37 Omit "a conversion plan or". 8 Section 37 Omit "conversion plan or" (last occurring). 9 Section 38 Repeal the section. 10 Subsections 39(1) and (2) Repeal the subsections, substitute: (1) The ACMA may, by legislative instrument, prepare a marketing plan for issuing spectrum licences that authorise the operation of radiocommunications devices: (a) at the frequencies specified in the plan; and (b) within the area or areas specified in the plan. (2) If an apparatus licence authorises the operation of radiocommunications devices: (a) at one or more frequencies; and (b) within one or more areas; the ACMA must not make a marketing plan that applies to the issue of spectrum licences that authorise the operation of radiocommunications devices: (c) at those frequencies; and (d) within those areas; unless the marketing plan provides that one or more spectrum licences are to be allocated by direct allocation to the holder of the apparatus licence. 11 Subsection 39(5) Repeal the subsection, substitute: (5) In indicating the procedures to be followed for issuing spectrum licences, the plan may, for example, indicate whether the licences are to be allocated: (a) by auction; or (b) by tender; or (c) by allocation for a pre‑determined price or a negotiated price; or (d) by direct allocation; or (e) by a combination of any or all of the following: (i) auction; (ii) tender; (iii) allocation for a pre‑determined price or a negotiated price; (iv) direct allocation. 12 At the end of section 39 Add: (7) A marketing plan must not relate wholly or partly to a part of the spectrum referred to the ACMA under subsection 31(1) or (1A), unless the part, or each of the parts, of the spectrum to which the plan relates is covered by a determination under subsection 31(2). 13 Subsection 39A(1) Repeal the subsection, substitute: (1) This section applies if a spectrum re‑allocation declaration states that a part or parts of the spectrum should be re‑allocated: (a) by issuing spectrum licences; or (b) by a combination of: (i) issuing spectrum licences; and (ii) issuing apparatus licences. 14 Subsection 39A(7) Repeal the subsection, substitute: (7) In indicating the procedures to be followed for issuing spectrum licences, the plan may, for example, indicate whether the licences are to be allocated: (a) by auction; or (b) by tender; or (c) by allocation for a pre‑determined price or a negotiated price; or (d) by direct allocation; or (e) by a combination of any or all of the following: (i) auction; (ii) tender; (iii) allocation for a pre‑determined price or a negotiated price; (iv) direct allocation. 15 Section 41 (heading) After "preparing", insert "marketing". 16 Subsection 41(1) Omit "a conversion plan or". 17 Subsection 41(2) Omit "38,". 18 Section 42 (heading) Before "plans", insert "marketing". 19 Subsections 42(1) and (2) Omit "a conversion plan or". 20 Section 44 Omit "a conversion plan or". 20A After subsection 44A(4) Insert: (4A) A digital radio channel plan may confer a power to make a decision of an administrative character on the ACMA. 20B Subsections 48(1) and (2) Repeal the subsections, substitute: (1) For the purposes of section 47, if: (a) at a particular time, a person has a radiocommunications device in the person's possession, otherwise than for the purpose of supplying the radiocommunications device to another person; and (b) the radiocommunications device can be operated; it must be presumed that the person has the radiocommunications device in the person's possession for the purpose of operating the radiocommunications device, unless the person adduces or points to evidence that suggests a reasonable possibility that, at that time, the person did not have the radiocommunications device in the person's possession for the purpose of operating the radiocommunications device. (2) For the purposes of subsection (1), it is immaterial whether the radiocommunications device can be operated: (a) immediately; or (b) after taking one or more steps (for example, the connection of the radiocommunications device to a power supply). 21 Paragraph 51(2)(a) Repeal the paragraph. 22 Subsection 51(5) Repeal the subsection, substitute: (5) Division 3A is about renewing spectrum licences. (5A) Division 4 is about issuing further spectrum licences (otherwise than by way of renewal). 23 Subdivision A of Division 1 of Part 3.2 Repeal the Subdivision. 24 At the end of subsection 60(1) Add: ; or (d) by direct allocation; or (e) by a combination of any or all of the following: (i) auction; (ii) tender; (iii) allocation for a pre‑determined price or a negotiated price; (iv) direct allocation. 25 Subsection 60(2) Omit "procedures for", substitute "procedures, so far as they deal with". 26 After paragraph 60(2)(c) Insert: (ca) eligibility requirements (if any) for participation in auctions; (cb) credits (if any) for prospective bidders; 27 Subsection 60(3) Omit "procedures for", substitute "procedures, so far as they deal with". 28 After paragraph 60(3)(c) Insert: (ca) eligibility requirements (if any) for submission of a tender; (cb) credits (if any) for prospective tenderers; 29 Subsection 60(4) Omit "procedures for", substitute "procedures, so far as they deal with". 30 After paragraph 60(4)(b) Insert: (ba) eligibility requirements (if any) for prospective licensees; (bb) credits (if any) for prospective licensees; 31 Paragraphs 60(5)(a) and (b) Repeal the paragraphs, substitute: (a) impose limits on the aggregate of the parts of the spectrum that: (i) under transmitter licences; and (ii) under existing spectrum licences; and (iii) as a result of the allocation of spectrum licences under this Subdivision; may be used by: (iv) any one person; or (v) a specified person; or (b) impose limits on the aggregate of the parts of the spectrum that: (i) under transmitter licences; and (ii) under existing spectrum licences; and (iii) as a result of the allocation of spectrum licences under this Subdivision; may, in total, be used by the members of a specified group of persons. 32 After subsection 60(7) Insert: (7A) Procedures determined under subsection (1), so far as they relate to direct allocation of spectrum licences, may provide for the ACMA to have regard to a frequency assignment certificate issued by a person who holds an accreditation of a kind specified in the legislative rules, stating that the operation of a device under such a licence: (a) on a specified frequency or frequencies, or on a specified frequency channel; and (b) at a specified constancy; and (c) at a specified location; and (d) subject to specified technical conditions; will satisfy any conditions that are required to be satisfied, in relation to the issue of such a certificate, under a determination made under section 266A. 33 Subsection 60(8) Omit "(6A) and (7)", substitute "(6A), (7) and (7A)". 34 Subsection 60(9) Repeal the subsection. 35 After subsection 60(13) Insert: (13A) Before determining procedures under subsection (1), the ACMA must consult the ACCC about whether the procedures should impose limits as mentioned in subsection (5) and, if so, the nature of those limits. 36 After subsection 60(14) Insert: (14A) Procedures determined under subsection (1) may confer a power to make a decision of an administrative character on a person or the ACMA. 37 At the end of section 60 Add: (16) A determination under subsection (1) is a legislative instrument. 38 After section 60 Insert: 60A Direct allocation of spectrum licences For the purposes of this Act, direct allocation of a spectrum licence means the allocation of the licence to: (a) a person specified in procedures determined under section 60; or (b) a person ascertained in accordance with procedures determined under section 60. 60B Restriction on allocation of spectrum licences If a spectrum licence authorises the operation of radiocommunications devices: (a) at one or more frequencies; and (b) within one or more areas; the ACMA must not allocate another spectrum licence if the other spectrum licence authorises the operation of radiocommunications devices: (c) at those frequencies; and (d) within those areas. 40 After section 65 Insert: 65A Renewal statements etc. Renewal statement (1) A spectrum licence issued after the commencement of this section must include: (a) a statement to the effect that the licence cannot be renewed; or (b) a statement to the effect that the licence may be renewed at the discretion of the ACMA; or (c) a statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist. Note: For transitional exceptions, see subsection (21). (2) A statement mentioned in paragraph (1)(a), (b) or (c) is to be known as a renewal statement. (3) Circumstances specified under paragraph (1)(c) may be an act or omission by the ACMA. (4) Subsection (3) does not limit paragraph (1)(c). (5) 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 following statements: (a) a statement to the effect that the licence cannot be renewed; (b) a statement to the effect that the licence may be renewed at the discretion of the ACMA; (c) a statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist. Note: For transitional exceptions, see subsections (21) and (22). (6) A statement mentioned in paragraph (5)(a), (b) or (c) is to be known as a renewal statement. (7) Circumstances specified under paragraph (5)(c) may be an act or omission by the ACMA. (8) Subsection (7) does not limit paragraph (5)(c). (9) A determination under subsection (5) does not apply to a spectrum licence if a renewal statement is included in the licence under subsection (1). Renewal application period (10) If a spectrum licence includes: (a) a statement to the effect that the licence may be renewed at the discretion of the ACMA; or (b) a statement to the effect that the licence may be renewed at the discretion of the ACMA so long as specified circumstances exist; the licence must also include a statement to the effect that a specified period is the renewal application period for the licence. (11) A statement mentioned in subsection (10) is to be known as a renewal application period statement. (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 to the effect that a period ascertained in accordance with the determination is the renewal application period for the licence. (13) A renewal application period for a spectrum licence must: (a) begin at a time when the licence is in force; and (b) end before the licence is due to expire. (14) A determination under subsection (12) does not apply to a spectrum licence if a renewal application period statement is included in the licence under subsection (10). Renewal decision‑making period (15) A spectrum licence may include a statement to the effect that a specified period is the renewal decision‑making period for the licence. (16) A statement mentioned in subsection (15) is to be known as a renewal decision‑making period statement. Public interest statement (17) If a spectrum licence includes: (a) a statement to the effect that the licence may be renewed at the discretion of the ACMA; or (b) a statement to the effect that the licence 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. (18) A statement mentioned in subsection (17) is to be known as a public interest statement. (19) 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 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. Note: For transitional exceptions, see subsections (21) and (22). (20) A statement mentioned in subsection (19) is to be known as a public interest statement. Transitional—exceptions (21) Subsections (1), (5) and (19) do not apply to a spectrum licence if: (a) both: (i) a marketing plan was applicable to the issue of the licence; and (ii) the marketing plan was prepared before the commencement of this section; or (b) the licence was issued as the result of an offer under repealed section 56. (22) Subsections (5) and (19) do not apply to a spectrum licence if the licence was issued under repealed section 82. 40A Paragraph 68A(2)(b) Omit "Parts VII and IX", substitute "the remaining provisions of that Act". 40B Paragraph 71A(2)(b) Omit "Parts VII and IX", substitute "the remaining provisions of that Act". 41 Subsection 71A(3) Omit "re‑issue of a spectrum licence under section 82", substitute "issue of a spectrum licence under section 77C". 42 At the end of section 72 Add: (3) Subject to subsections (4), (5) and (6), the ACMA may, with the written agreement of the licensee of a spectrum licence, vary the licence by: (a) varying the renewal statement included in the licence; or (b) omitting the renewal statement included in the licence and substituting another renewal statement; or (c) varying the renewal application period statement included in the licence; or (d) omitting the public interest statement included in the licence; or (e) omitting the renewal decision‑making period statement included in the licence; or (f) varying the renewal decision‑making period statement included in the licence. (4) If the renewal statement is varied, the statement as varied must comply with the requirements of section 65A. (5) If another renewal statement is substituted, the substituted renewal statement must comply with the requirements of section 65A. (6) If the renewal application period statement is varied, the statement as varied m