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Radiocommunications Amendment Act 1997

  • - C2004A05139
  • In force - Latest Version
Act No. 41 of 1997 as made
An Act to amend the Radiocommunications Act 1992, and for related purposes
Administered by: Infrastructure, Transport, Regional Development, Communications and the Arts
Originating Bill: Radiocommunications Amendment Bill 1996 [1997]
Date of Assent 22 Apr 1997
Table of contents.

Radiocommunications Amendment Act 1997

 

No. 41, 1997

Contents

1............ Short title............................................................................................

2............ Commencement..................................................................................

3............ Schedule(s).........................................................................................

Schedule 1—Amendments                                                                                               

Radiocommunications Act 1992                                                                             


An Act to amend the Radiocommunications Act 1992, and for related purposes

[Assented to 22 April 1997]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Radiocommunications Amendment Act 1997.

2  Commencement

                   This Act commences on the day on which it receives the Royal Assent.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended 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 1Amendments

Radiocommunications Act 1992

1  After paragraph 4(c)

Insert:

                    (ca)  Chapter 3 also provides for the re-allocation of parts of the spectrum (see Part 3.6); and

2  Section 5

Insert:

ACCC means the Australian Competition and Consumer Commission.

3  Section 5

Insert:

EMC standard means a standard made solely for the purposes of either or both of the following:

                     (a)  paragraph 162(3)(b);

                     (b)  paragraph 162(3)(e).

4  Section 5 (definition of marketing plan)

After “section 39” insert “or 39A”.

5  Section 5

Insert:

re-allocation deadline, in relation to a spectrum re-allocation declaration, has the meaning given by section 153B.

6  Section 5

Insert:

re-allocation period, in relation to a spectrum re-allocation declaration, has the meaning given by section 153B.

7  Section 5

Insert:

spectrum re-allocation declaration means a declaration under section 153B.

8  Section 5 (definition of technical licence specification)

Repeal the definition.

9  At the end of subsection 29(3)

Add:

             ; and (c)  marketing plans that govern allocation under spectrum licences of parts of the spectrum that are subject to re‑allocation.

10  Subsection 36(2)

Omit “generally or”.

11  At the end of section 36

Add:

             (6)  If there is in force a spectrum re-allocation declaration stating that a particular part of the spectrum is subject to re-allocation with respect to a particular area, then, during the re-allocation period for the declaration, the Minister must not give a notice under this section that relates wholly or partly to that part of the spectrum with respect to the whole or a part of that area.

             (7)  If, at the beginning of the re-allocation period for a spectrum re‑allocation declaration:

                     (a)  the declaration states that a particular part of the spectrum is subject to re-allocation with respect to a particular area; and

                     (b)  a notice is in force under this section designating a particular part of the spectrum to be allocated by issuing spectrum licences with respect to a particular area; and

                     (c)  the part and area covered by the declaration overlap, to any extent, with the part and area covered by the notice;

then:

                     (d)  the notice; and

                     (e)  any conversion plan prepared by the SMA on receiving the notice; and

                      (f)  any marketing plan prepared by the SMA on receiving the notice;

cease to have effect at the beginning of that period, to the extent of the overlap.

             (8)  If:

                     (a)  because of subsection (7), Subdivision A of Division 1 of Part 3.2 ceases to apply to a particular apparatus licence at a particular time; and

                     (b)  before that time, the SMA gave the licensee an offer under section 56 to issue a spectrum licence to replace the apparatus licence;

subsection (7) does not prevent:

                     (c)  the licensee accepting the offer; or

                     (d)  the SMA issuing the spectrum licence.

12  Paragraph 38(1)(b)

Repeal the paragraph, substitute:

                     (b)  within the area or areas specified in the notice.

13  Paragraph 39(1)(b)

Repeal the paragraph, substitute:

                     (b)  within the area or areas specified in the notice.

Note:       The heading to section 39 of the Radiocommunications Act 1992 is altered by adding at the end “—unencumbered spectrum”.

14  After section 39

Insert:

39A  Marketing plans—re-allocation of spectrum

             (1)  This section applies if a spectrum re-allocation declaration states that a part or parts of the spectrum should be re-allocated by issuing spectrum licences.

             (2)  The SMA must, by written instrument, prepare a marketing plan for issuing spectrum licences that authorise the operation of radiocommunications devices:

                     (a)  at frequencies within that part, or those parts, of the spectrum; and

                     (b)  within the area or areas specified in the declaration with respect to that part or those parts.

             (3)  The marketing plan is to apply to spectrum licences with respect to that part or those parts that might be issued as mentioned in section 153L.

             (4)  The marketing plan need not require spectrum licences issued in accordance with it to apply to the whole of the area or areas to which the declaration applies.

             (5)  The marketing plan may indicate:

                     (a)  the procedures to be followed for issuing spectrum licences in accordance with the plan; and

                     (b)  the timetable for issuing spectrum licences in accordance with the plan; and

                     (c)  how the spectrum dealt with under the plan is to be apportioned among the spectrum licences to be issued; and

                     (d)  how much of the spectrum dealt with under the plan is to be reserved for public or community services; and

                     (e)  the conditions, or types of conditions, that may be included in spectrum licences to be issued.

             (6)  Subsection (5) does not, by implication, limit the matters that the marketing plan may indicate.

             (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 by auction, by tender, for a pre-determined price or for a negotiated price.

             (8)  The marketing plan must not be inconsistent with:

                     (a)  the spectrum plan; or

                     (b)  a frequency band plan that relates, wholly or partly, to the part or parts of the spectrum to which the marketing plan relates.

15  Subsection 41(2)

Omit “38 or 39”, substitute “38, 39 or 39A”.

16  After subsection 45(6)

Insert:

          (6A)  Part 3.6 provides for parts of the spectrum to be declared to be subject to re-allocation.

17  Paragraph 51(2)(b)

Omit “for unencumbered spectrum”.

18  At the end of subsection 51(2)

Add:

            ; and (d)  how section 50 and related provisions of the Trade Practices Act 1974 apply to the issue of spectrum licences (Subdivision D).

19  Paragraph 52(1)(b)

Repeal the paragraph, substitute:

                     (b)  within an area to which the conversion plan applies.

20  Subdivision B of Division 1 of Part 3.2 (heading)

Repeal the heading, substitute:

Subdivision BIssuing spectrum licences

21  At the end of section 60

Add:

             (5)  Procedures determined under subsection (1) may:

                     (a)  impose limits on the aggregate of the parts of the spectrum that, as a result of the allocation of spectrum licences under this Subdivision, may be used by:

                              (i)  any one person; or

                             (ii)  a specified person; or

                     (b)  impose limits on the aggregate of the parts of the spectrum that, 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.

Note:          Persons or groups may be specified by name, by inclusion in a specified class or in any other way.

             (6)  A limit imposed as mentioned in subsection (5) may be expressed to apply in relation to any or all of the following:

                     (a)  a specified part of the spectrum;

                     (b)  a specified area;

                     (c)  a specified population reach.

For example, procedures might specify an aggregate limit of 15 MHz per person in the band between 1200 MHz and 1300 MHz (inclusive) for a particular area. This subsection does not, by implication, limit subsection (5).

             (7)  Procedures determined under subsection (1) may require the SMA to give specified information to the ACCC.

             (8)  Subsections (5), (6) and (7) do not, by implication, limit subsection (1).

             (9)  The SMA must not determine procedures imposing a limit as mentioned in subsection (5) unless the SMA is directed to do so by the Minister under subsection (10).

           (10)  The Minister may give written directions to the SMA in relation to the exercise of the power to determine procedures imposing a limit as mentioned in subsection (5).

           (11)  A direction under subsection (10) must be published in the Gazette.

           (12)  The SMA must exercise its powers under subsection (1) in a manner consistent with any directions given by the Minister under subsection (10).

           (13)  Subsection (10) does not, by implication, limit the Minister’s power to give directions otherwise than under that subsection.

           (14)  Before determining procedures under subsection (1), the SMA must consult the ACCC about whether the procedures should include a requirement mentioned in subsection (7) and, if so, the nature of the requirement.

22  At the end of section 62

Add:

             (3)  If the issue of the licence is covered by section 153L (which deals with re-allocation of spectrum), the SMA may defer the issue of the licence until the relevant frequencies become available as a result of the expiry, surrender or cancellation of one or more apparatus licences that, under section 153D, are affected by the spectrum re-allocation declaration concerned.

23  Subsection 65(3)

Omit “10 years”, substitute “15 years”.

24  At the end of section 66

Add:

             (5)  If the issue of the licence is covered by section 153L (which deals with re-allocation of spectrum), a condition mentioned in paragraph (1)(a) of this section may provide for the progressive authorisation of the operation of radiocommunications devices under the licence. The progressivity is to be based on the times when a particular part or parts of the spectrum become available as a result of the expiry, surrender or cancellation of one or more apparatus licences that, under section 153D, are affected by the spectrum re-allocation declaration concerned.

             (6)  Subsection (5) does not, by implication, limit subsection (1).

25  After section 68

Insert:

68A  Authorisation under spectrum licence is to be treated as acquisition of asset

                   For the purposes of section 50 and subsections 81(1) and (1A) and 88(9), 89(5A) and 90(9) of the Trade Practices Act 1974, the authorisation, in accordance with subsection 68(1) of this Act, of a person to operate radiocommunications devices under a spectrum licence is taken to be an acquisition by the person of an asset of another person.

26  Section 70

Repeal the section.

27  Subsection 71(2)

Omit “70”, substitute “69”.

28  After section 71

Insert:

Subdivision DRules about section 50 and related provisions of the Trade Practices Act

71A  Issue of spectrum licence is to be treated as acquisition of asset

             (1)  For the purposes of section 50 and subsections 81(1), 88(9), 89(5A) and 90(9) of the Trade Practices Act 1974, the issue of a spectrum licence to a person is taken to be an acquisition by the person of an asset of another person.

             (2)  Subsection (1) does not apply to the re-issue of a spectrum licence under section 82.

29  Section 83

Omit “Subdivision C of Division 1 applies”, substitute “Subdivisions C and D of Division 1 apply”.

Note:       The heading to section 83 of the Radiocommunications Act 1992 is altered by omitting “Contents of” and substituting “General rules about newly-issued spectrum licences apply to”.

30  Section 83

Omit “it applies”, substitute “those Subdivisions apply”.

31  After subsection 87(2) (before the note)

Insert:

             (3)  Subdivision D of Division 1 applies to the issue of a new licence under subsection (1) of this section.

32  After subsection 98(2)

Insert:

          (2A)  For the purposes of this Act, the type of an apparatus licence is to be ascertained solely by reference to a determination.

33  At the end of subsection 100(5)

Add “otherwise than under section 153H”.

34  Subsection 106(1)

After “system for”, insert “allocating and/or”.

35  After subsection 106(2)

Insert:

             (3)  A system so determined may:

                     (a)  impose limits on the number of transmitter licences that the SMA may issue to:

                              (i)  any one person; or

                             (ii)  a specified person; or

                     (b)  impose limits on the number of transmitter licences that the SMA may, in total, issue to the members of a specified group of persons.

Note:          Persons or groups may be specified by name, by inclusion in a specified class or in any other way.

             (4)  A limit imposed as mentioned in subsection (3) may be expressed to apply in relation to any or all of the following:

                     (a)  a specified part of the spectrum;

                     (b)  a specified area;

                     (c)  a specified population reach.

For example, a system might impose a limit of one transmitter licence per person in the band between 1800 MHz and 1900 MHz (inclusive) for a particular area. This subsection does not, by implication, limit subsection (3).

             (5)  A system so determined may provide that, if the issue of a licence is covered by section 153M (which deals with re-allocation of spectrum), the SMA may defer the issue of the licence until the relevant frequencies become available as a result of the expiry, surrender or cancellation of one or more other apparatus licences that, under section 153D, are affected by the spectrum re‑allocation declaration concerned.

             (6)  A system so determined may require the SMA to give specified information to the ACCC.

             (7)  Subsections (2), (3), (4), (5) and (6) do not, by implication, limit subsection (1).

             (8)  The SMA must not determine a system imposing a limit as mentioned in subsection (3) unless the SMA is directed to do so by the Minister under subsection (9).

             (9)  The Minister may give written directions to the SMA in relation to the exercise of the power to determine procedures imposing a limit as mentioned in subsection (3).

           (10)  A direction under subsection (9) must be published in the Gazette.

           (11)  The SMA must exercise its powers under subsection (1) in a manner consistent with directions given by the Minister under subsection (9).

           (12)  Before determining a price-based allocation system under subsection (1), the SMA must consult the ACCC about whether the procedures should include a requirement mentioned in subsection (6) and, if so, the nature of the requirement.

36  Subsection 106(3)

Renumber as (13).

37  At the end of section 106

Add:

           (14)  If:

                     (a)  a transmitter licence of a kind specified for the purposes of subsection (1) would authorise a person to operate a radiocommunications transmitter; and

                     (b)  this Act or any other law requires that a person operating a transmitter:

                              (i)  of that kind; or

                             (ii)  for a purpose for which the transmitter is to be used;

                            be within a specified class of persons;

the Minister may give the SMA a written direction requiring the SMA, in determining a price-based allocation system, to limit the persons eligible to apply for such a transmitter licence to:

                     (c)  persons within that specified class; or

                     (d)  persons not within, but eligible to be within, that class; or

                     (e)  persons within that class and persons not within, but eligible to be within, that class.

           (15)  The SMA must comply with a direction under subsection (14).

           (16)  A direction under subsection (14) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

           (17)  Subsections (9) and (14) do not, by implication, limit the Minister’s power to give directions otherwise than under those subsections.

38  After section 106

Insert:

106A  Issue of apparatus licence is to be treated as acquisition of asset of a person for the purposes of section 50 of the Trade Practices Act

             (1)  For the purposes of section 50 and subsections 81(1), 88(9), 89(5A) and 90(9) of the Trade Practices Act 1974, the issue of an apparatus licence to a person is taken to be an acquisition by the person of an asset of another person.

             (2)  Subsection (1) does not apply to a transmitter licence issued under section 102.

             (3)  Subsection (1) does not apply to the issue of an apparatus licence if the licence is issued by way of renewal of an existing apparatus licence (see Division 7).

39  Paragraph 107(1)(e)

Repeal the paragraph.

40  Subsection 107(2)

Omit “(c), (d) and (e)”, substitute “(c) and (d)”.

41  At the end of section 107

Add:

             (5)  If the issue of an apparatus licence is covered by section 153M (which deals with re-allocation of spectrum), a condition of the licence may provide for the progressive authorisation of the operation of the radiocommunications device under the licence. The progressivity is to be based on the times when a particular part or parts of the spectrum become available as a result of the expiry, surrender or cancellation of one or more other apparatus licences that, under section 153D, are affected by the spectrum re‑allocation declaration concerned.

             (6)  Subsection (5) does not, by implication, limit anything in subsection (1).

42  After section 114

Insert:

114A  Authorisation under apparatus licence is to be treated as acquisition of asset of a person for the purposes of section 50 of the Trade Practices Act

                   For the purposes of section 50 and subsections 81(1) and (1A) and 88(9), 89(5A) and 90(9) of the Trade Practices Act 1974, the authorisation, in accordance with subsection 114(1) of this Act, of a person to operate radiocommunications devices under an apparatus licence is taken to be an acquisition by the person of an asset of another person.

43  After subsection 130(2)

Insert:

          (2A)  The SMA must not renew the licence if:

                     (a)  under section 153D, the licence is affected by a spectrum re‑allocation declaration; and

                     (b)  the licence is due to expire after the end of the re‑allocation period for the spectrum re‑allocation declaration.

44  After subsection 130(4)

Insert:

          (4A)  If:

                     (a)  the SMA renews the licence by issuing a new apparatus licence; and

                     (b)  under section 153D, the new licence is affected by a spectrum re-allocation declaration;

the period specified in the new licence for the purposes of subsection 103(2) must end before the end of the re-allocation period for the spectrum re-allocation declaration.

45  At the end of subsection 147(1)

Add:

             ; and (f)  if, under section 153D, the licence is affected by a spectrum re‑allocation declaration—a note to that effect.

46  After Part 3.5

Insert:

Part 3.6Re-allocation of encumbered spectrum

153A  Outline of this Part

             (1)  This Part is about the re-allocation of spectrum.

             (2)  Section 153B allows the Minister to make a declaration that one or more specified parts of the spectrum are subject to re‑allocation. The declaration is called a spectrum re‑allocation declaration.

             (3)  A spectrum re‑allocation declaration may provide that the part or parts of the spectrum should be re‑allocated:

                     (a)  by issuing spectrum licences under Subdivision B of Division 1 of Part 3.2 (see section 153L); or

                     (b)  by issuing apparatus licences under Division 2 of Part 3.3 (see section 153M).

             (4)  Certain apparatus licences that are affected by a spectrum re‑allocation declaration will be cancelled at the end of the period specified in the declaration (see section 153H).

153B  Spectrum re-allocation declaration

             (1)  The Minister may make a written declaration that one or more specified parts of the spectrum are subject to re-allocation under this Part in relation to a specified period (the re-allocation period).

             (2)  The declaration is called a spectrum re-allocation declaration.

             (3)  For each part of the spectrum specified in the declaration, the declaration must be expressed to apply with respect to one or more specified areas.

             (4)  The re-allocation period must:

                     (a)  begin within 28 days after the declaration is made; and

                     (b)  run for at least 2 years.

             (5)  The declaration must specify a time as the re-allocation deadline for the declaration. That time must be at least 12 months before the end of the re-allocation period.

             (6)  For each part of the spectrum specified in the declaration, the declaration must state whether the part of the spectrum should be re-allocated:

                     (a)  by issuing spectrum licences under Subdivision B of Division 1 of Part 3.2 (see section 153L); or

                     (b)  by issuing apparatus licences under Division 2 of Part 3.3 (see section 153M).

             (7)  The declaration must not specify a particular part of the spectrum with respect to a particular area if, at the time of the declaration, a spectrum licence is in force authorising the operation of radiocommunications devices:

                     (a)  at frequencies that are wholly or partly within that part of the spectrum; and

                     (b)  within that area.

             (8)  A particular part of the spectrum may be specified in the declaration whether or not any apparatus licences are in force authorising the operation of radiocommunications devices at frequencies that are wholly or partly within that part of the spectrum.

             (9)  A particular part of the spectrum may be specified in the declaration even if it adjoins:

                     (a)  another part of the spectrum that is also specified in the declaration; or

                     (b)  2 other parts of the spectrum that are also specified in the declaration.

153C  Spectrum re‑allocation declaration—ancillary provisions

             (1)  The Minister must give a copy of a spectrum re‑allocation declaration to the SMA.

             (2)  As soon as practicable after receiving a copy of the declaration, the SMA must:

                     (a)  prepare a written notice stating:

                              (i)  that the declaration has been made; and

                             (ii)  that affected apparatus licensees can get a free copy of the declaration from any office of the SMA; and

                     (b)  both:

                              (i)  as far as practicable, make reasonable efforts to give each affected apparatus licensee a copy of the notice; and

                             (ii)  cause a copy of the notice to be published in one or more newspapers circulating generally in the capital city of each State; and

                     (c)  make copies of the declaration available in accordance with the notice.

Note:          Affected apparatus licensee has the meaning given by section 153D.

             (3)  A spectrum re-allocation declaration is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

             (4)  In this section:


State includes the Northern Territory and the Australian Capital Territory.

153D  Affected apparatus licences and licensees

             (1)  For the purposes of this Part, an apparatus licence is affected by a spectrum re-allocation declaration if the licence authorises the operation of radiocommunications devices:

                     (a)  at frequencies that are wholly or partly within the part or parts of the spectrum specified in the declaration; and

                     (b)  within the area or areas specified in the declaration with respect to that part or those parts.

             (2)  In this Part:

affected apparatus licensee means the licensee of an affected apparatus licence.

153E  Minister may make a spectrum re-allocation declaration only after receiving the SMA’s recommendation

             (1)  The Minister must not make a spectrum re-allocation declaration in relation to a particular part or parts of the spectrum unless, during the previous 180 days, the SMA has given the Minister a recommendation under section 153F in relation to that part, or those parts, of the spectrum.

             (2)  In deciding whether to make the declaration, the Minister must have regard to the recommendation.

             (3)  Subsection (2) does not, by implication, limit the matters to which the Minister may have regard.

153F  SMA may recommend that the Minister make a spectrum re‑allocation declaration

             (1)  The SMA may give the Minister a written recommendation to make a spectrum re-allocation declaration in relation to one or more specified parts of the spectrum.

             (2)  The recommendation must specify the period that, in the SMA’s opinion, the declaration should specify as the re-allocation period.

             (3)  Subsection (2) does not, by implication, limit the matters that may be dealt with by the recommendation.

153G  Comments by potentially-affected apparatus licensees on recommendation

             (1)  Before giving the Minister a recommendation under section 153F to make a spectrum re-allocation declaration, the SMA must:

                     (a)  prepare a written notice:

                              (i)  stating that the SMA has prepared a draft version of the recommendation; and

                             (ii)  setting out the terms of the draft version; and

                     (b)  both:

                              (i)  as far as practicable, make reasonable efforts to give each potentially‑affected apparatus licensee a copy of the notice; and

                             (ii)  cause a copy of the notice to be published in one or more newspapers circulating generally in the capital city of each State.

             (2)  The notice must invite each potentially‑affected apparatus licensee to give written comments to the SMA about the draft version of the recommendation within the specified period after either:

                     (a)  the licensee receives the notice; or

                     (b)  the publication of the notice;

as the case may be. The specified period must run for at least 28 days.

             (3)  If a potentially‑affected apparatus licensee has given comments in accordance with a notice under this section, then, in preparing the final version of the recommendation, the SMA must have regard to the comments.

             (4)  Subsection (3) does not, by implication, limit the matters to which the SMA may have regard.

             (5)  If the Minister is satisfied that:

                     (a)  at a time during the period:

                              (i)  beginning on 1 July 1996; and

                             (ii)  ending immediately before the commencement of this section;

                            the SMA began a process of consultation about a particular proposal to re-allocate a part of the spectrum; and

                     (b)  the process may reasonably be regarded as equivalent to the process set out in subsections (1), (2), (3) and (4) that would otherwise have applied in relation to a recommendation corresponding to the proposal;

the Minister may, by written notice given to the SMA, exempt the SMA from compliance with those subsections in relation to a recommendation under section 153F that corresponds to the proposal.

             (6)  In this section:

potentially‑affected apparatus licensee means the licensee of an apparatus licence, where the licensee would become an affected apparatus licensee if the spectrum re‑allocation declaration were to be made in accordance with the recommendation.

State includes the Northern Territory and the Australian Capital Territory.

153H  Effect of spectrum re-allocation declaration

             (1)  This section applies to an apparatus licence if:

                     (a)  immediately before the end of the re-allocation period for a spectrum re-allocation declaration, the licence is affected by the declaration; and

                     (b)  the licence came into force after the commencement of this section.

             (2)  The licence is cancelled under this section at the end of the re‑allocation period.

153J  Revocation and variation of spectrum re-allocation declaration

             (1)  The Minister must not revoke a spectrum re-allocation declaration if:

                     (a)  the declaration states that a particular part of the spectrum should be re-allocated by issuing licences; and

                     (b)  the SMA has begun allocating any or all of those licences.

             (2)  The Minister must not vary a spectrum re-allocation declaration if:

                     (a)  the declaration states that a particular part of the spectrum should be re-allocated by issuing licences; and

                     (b)  the SMA has begun allocating any or all of those licences with respect to a particular area; and

                     (c)  the variation relates to the whole or a part of that area.

             (3)  For the purposes of this section, the SMA is taken to begin allocating licences if, and only if:

                     (a)  in a case where the licences are to be allocated by auction—the SMA publishes an advertisement for that auction; or

                     (b)  in a case where the licences are to be allocated by tender—the SMA publishes an advertisement calling for suitable tenders; or

                     (c)  in any other case—the SMA invites applications for the allocation of the licences.

             (4)  This section does not prevent the Minister from varying a spectrum re-allocation declaration so as to extend the re‑allocation deadline if the Minister is of the opinion that there are special circumstances.

153K  Automatic revocation of spectrum re-allocation declaration if no licences allocated by re-allocation deadline

             (1)  This section applies if:

                     (a)  a spectrum re-allocation declaration states that a particular part of the spectrum should be re-allocated by issuing licences; and

                     (b)  no such licences are allocated before the re-allocation deadline for the declaration.

             (2)  The declaration is taken to have been revoked immediately after the re-allocation deadline.

             (3)  As soon as practicable after the re-allocation deadline, the SMA must give each affected apparatus licensee a written notice stating that the declaration is taken to have been revoked.

             (4)  Subsection (2) applies despite subsection 153J(1).

             (5)  This section does not, by implication, limit the Minister’s power to revoke a spectrum re-allocation declaration in accordance with subsection 33(3) of the Acts Interpretation Act 1901.

153L  Re-allocation by means of issuing spectrum licences

             (1)  This section applies if a spectrum re-allocation declaration states that a part or parts of the spectrum should be re-allocated by issuing spectrum licences.

             (2)  The licences must be issued under Subdivision B of Division 1 of Part 3.2 in accordance with a marketing plan prepared under section 39A.

153M  Re-allocation by means of issuing apparatus licences

             (1)  This section applies if a spectrum re-allocation declaration states that a part or parts of the spectrum should be re-allocated by issuing apparatus licences.

             (2)  The licences must be issued under Division 2 of Part 3.3 in accordance with a price-based allocation system determined under section 106.

153N  Restriction on issuing spectrum licences for parts of the spectrum subject to re-allocation

             (1)  This section applies if the Minister makes a spectrum re-allocation declaration under section 153B in relation to a particular part or parts of the spectrum.

             (2)  During the re-allocation period, the SMA must not issue a spectrum licence that authorises the operation of radiocommunications devices:

                     (a)  at frequencies that are within that part, or those parts, of the spectrum; and

                     (b)  within the area or areas specified in the declaration;

unless:

                     (c)  the licence is issued as mentioned in section 153L (which deals with re-allocation of spectrum by issuing spectrum licences); or

                     (d)  at the start of the re-allocation period, the licence had already been allocated under subsection 62(1).

153P  Restriction on issuing apparatus licences for parts of the spectrum subject to re-allocation

             (1)  This section applies if a spectrum re-allocation declaration is in force in relation to a particular part or parts of the spectrum.

             (2)  During the re-allocation period, the SMA must not issue an apparatus licence that authorises the operation of radiocommunications devices:

                     (a)  at frequencies that are within that part, or those parts, of the spectrum; and

                     (b)  within the area or areas specified in the declaration;

unless:

                     (c)  the licence is issued as mentioned in section 153M (which deals with re-allocation of spectrum by issuing apparatus licences); or

                     (d)  the licence is issued by way of renewal of an apparatus licence (see Division 7 of Part 3.3); or

                     (e)  the SMA is satisfied that the special circumstances of the particular case justify the issuing of the licence.

             (3)  After the end of the re-allocation period, the SMA must not issue an apparatus licence that authorises the operation of radiocommunications devices:

                     (a)  at frequencies that are within that part, or those parts, of the spectrum; and

                     (b)  within the area or areas specified in the declaration;

unless the SMA is satisfied that the special circumstances of the particular case justify the issuing of the licence.

47  At the end of subsection 155(2)

Add:

             ; and (f)  protect the health and safety of persons who:

                              (i)  operate radiocommunications transmitters or radiocommunications receivers; or

                             (ii)  work on radiocommunications transmitters or radiocommunications receivers; or

                            (iii)  use services supplied by means of radiocommunications transmitters or radiocommunications receivers; or

                            (iv)  are reasonably likely to be affected by the operation of radiocommunications transmitters or radiocommunications receivers.

48  Paragraph 156(e)

Repeal the paragraph.

49  Paragraph 156(f)

Omit “, technical licence specifications”.

50  After subsection 157(1)

Insert:

             (2)  If the transmitter referred to in subsection (1) is a non‑standard transmitter solely because of non-compliance with an EMC standard, subsection (1) does not apply to the transmitter unless:

                     (a)  the person referred to in that subsection is a corporation to which paragraph 51(xx) of the Constitution applies; or

                     (b)  the radio emission referred to in that subsection was made as a result of the device being operated in the course of, or in relation to:

                              (i)  trade or commerce between Australia and places outside Australia; or

                             (ii)  trade or commerce among the States; or

                            (iii)  trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

                            (iv)  the supply of goods or services to the Commonwealth, to a Territory or to an authority or instrumentality of the Commonwealth or of a Territory; or

                             (v)  the defence of Australia; or

                            (vi)  the operation of lighthouses, lightships, beacons or buoys; or

                           (vii)  astronomical or meteorological observations; or

                          (viii)  an activity of a corporation to which paragraph 51(xx) of the Constitution applies; or

                            (ix)  banking, other than State banking; or

                             (x)  insurance, other than State insurance; or

                            (xi)  weighing or measuring; or

                     (c)  the radio emission referred to in that subsection was likely to interfere with the operation of another device, where that operation was in the course of, or in relation to:

                              (i)  trade or commerce between Australia and places outside Australia; or

                             (ii)  trade or commerce among the States; or

                            (iii)  trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

                            (iv)  the supply of goods or services to the Commonwealth, to a Territory or to an authority or instrumentality of the Commonwealth or of a Territory; or

                             (v)  the defence of Australia; or

                            (vi)  the operation of lighthouses, lightships, beacons or buoys; or

                           (vii)  astronomical or meteorological observations; or

                          (viii)  an activity of a corporation to which paragraph 51(xx) of the Constitution applies; or

                            (ix)  banking, other than State banking; or

                             (x)  insurance, other than State insurance; or

                            (xi)  weighing or measuring; or

                     (d)  the radio emission referred to in that subsection was likely to interfere with:

                              (i)  radiocommunications; or

                             (ii)  broadcasting services (within the meaning of the Broadcasting Services Act 1992); or

                            (iii)  telecommunications services (within the meaning of the Telecommunications Act 1991); or

                            (iv)  any other postal, telegraphic, telephonic or other like service.

51  Subsection 157(2)

Renumber the subsection as (3).

52  Subsection 158(1)

Omit “transmitter” (wherever occurring), substitute “device”.

Note:       The heading to section 158 of the Radiocommunications Act 1992 is altered by omitting “transmitters” and substituting “devices”.

53  After subsection 158(1)

Insert:

             (2)  If the device referred to in subsection (1) is a non‑standard device solely because of non-compliance with an EMC standard, subsection (1) does not apply to the possession of the device unless:

                     (a)  the person referred to in that subsection is a corporation to which paragraph 51(xx) of the Constitution applies; or

                     (b)  the operation referred to in that subsection is in the course of, or in relation to:

                              (i)  trade or commerce between Australia and places outside Australia; or

                             (ii)  trade or commerce among the States; or

                            (iii)  trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

                            (iv)  the supply of goods or services to the Commonwealth, to a Territory or to an authority or instrumentality of the Commonwealth or of a Territory; or

                             (v)  the defence of Australia; or

                            (vi)  the operation of lighthouses, lightships, beacons or buoys; or

                           (vii)  astronomical or meteorological observations; or

                          (viii)  an activity of a corporation to which paragraph 51(xx) of the Constitution applies; or

                            (ix)  banking, other than State banking; or

                             (x)  insurance, other than State insurance; or

                            (xi)  weighing or measuring; or

                     (c)  the operation referred to in that subsection was likely to interfere with the operation of another device, where the operation of that other device was in the course of, or in relation to:

                              (i)  trade or commerce between Australia and places outside Australia; or

                             (ii)  trade or commerce among the States; or

                            (iii)  trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

                            (iv)  the supply of goods or services to the Commonwealth, to a Territory or to an authority or instrumentality of the Commonwealth or of a Territory; or

                             (v)  the defence of Australia; or

                            (vi)  the operation of lighthouses, lightships, beacons or buoys; or

                           (vii)  astronomical or meteorological observations; or

                          (viii)  an activity of a corporation to which paragraph 51(xx) of the Constitution applies; or

                            (ix)  banking, other than State banking; or

                             (x)  insurance, other than State insurance; or

                            (xi)  weighing or measuring; or

                     (d)  the operation referred to in that subsection was likely to interfere with:

                              (i)  radiocommunications; or

                             (ii)  broadcasting services (within the meaning of the Broadcasting Services Act 1992); or

                            (iii)  telecommunications services (within the meaning of the Telecommunications Act 1991); or

                            (iv)  any other postal, telegraphic, telephonic or other like service.

54  Subsection 158(2)

Renumber the subsection as (3).

55  Subsection 158(2)

Omit “transmitters”, substitute “devices”.

56  Subsection 158(2)

Omit “transmitter” (wherever occurring), substitute “device”.

57  Subsection 158(2)

Omit “TRANSMITTER”, substitute “DEVICE”.

58  Section 159

Omit “transmitter” (wherever occurring), substitute “device”.

Note:       The heading to section 159 of the Radiocommunications Act 1992 is altered by omitting “transmitters” and substituting “devices”.

59  Subsection 159(1)

Omit “transmitter’s” (wherever occurring), substitute “device’s”.

60  After subsection 160(1)

Insert:

             (2)  If the device referred to in subsection (1) is a non-standard device solely because of non‑compliance with an EMC standard, subsection (1) does not apply to the supply of the device unless:

                     (a)  the person referred to in that subsection is a corporation to which paragraph 51(xx) of the Constitution applies; or

                     (b)  the supply referred to in that subsection was:

                              (i)  supply in the course of, or in relation to, trade or commerce between Australia and places outside Australia; or

                             (ii)  supply in the course of, or in relation to, trade or commerce among the States; or

                            (iii)  supply in the course of, or in relation to, trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

                            (iv)  supply to the Commonwealth, to a Territory or to an authority or instrumentality of the Commonwealth or of a Territory.

61  Subsection 160(2)

Renumber the subsection as (3).

62  Paragraph 162(3)(c)

Omit “radiocommunications devices” (wherever occurring), substitute “radiocommunications transmitters or radiocommunications receivers”.

63  At the end of subsection 162(3)

Add:

               ; or (e)  establishing for the uses or functions of devices an adequate level of immunity from electromagnetic disturbances caused by the use of other devices; or

                      (f)  protecting the health or safety of persons who:

                              (i)  operate radiocommunications transmitters or radiocommunications receivers; or

                             (ii)  work on radiocommunications transmitters or radiocommunications receivers; or

                            (iii)  use services supplied by means of radiocommunications transmitters or radiocommunications receivers; or

                            (iv)  are reasonably likely to be affected by the operation of radiocommunications transmitters or radiocommunications receivers.

64  At the end of subsection 163(1)

Add:

Note:          This subsection has effect subject to section 163A (which deals with the SMA’s power to make standards in cases of urgency).

65  After section 163

Insert:

163A  Making standards in cases of urgency

             (1)  The SMA is not required to comply with subsection 163(1) in relation to the making of a particular standard if the SMA is satisfied that it is necessary to make the standard as a matter of urgency in order to protect the health or safety of persons who:

                     (a)  operate radiocommunications transmitters or radiocommunications receivers; or

                     (b)  work on radiocommunications transmitters or radiocommunications receivers; or

                     (c)  use services supplied by means of radiocommunications transmitters or radiocommunications receivers; or

                     (d)  are reasonably likely to be affected by the operation of radiocommunications transmitters or radiocommunications receivers.

             (2)  If subsection (1) applies to a standard (the urgent standard), the urgent standard ceases to have effect 12 months after it came into operation. However, this rule does not prevent the SMA from revoking the urgent standard and making another standard under section 162 that:

                     (a)  is not a standard to which subsection (1) applies; and

                     (b)  deals with the same subject matter as the urgent standard.

66  Division 4 of Part 4.1 (heading)

Repeal the heading, substitute:

Division 4Permits for non‑standard devices

67  Paragraph 166(b)

Omit “transmitter”, substitute “device”.

68  Section 166

Omit “transmitter” (last occurring), substitute “device”.

69  Subsections 167(2) and (3)

Omit “transmitters” (wherever occurring), substitute “devices”.

70  Section 172

Omit “transmitter” (last occurring), substitute “device”.

71  Paragraph 173(1)(a)

Omit “transmitter”, substitute “device”.

72  Division 6 of Part 4.1

Repeal the Division.

73  Subsection 182(1)

Omit “one or more”, substitute “either or both”.

74  Paragraph 182(1)(b)

Repeal the paragraph.

75  Subsection 182(1B)

Omit “one or more”, substitute “either or both”.

76  Paragraph 182(1B)(b)

Repeal the paragraph.

77  Paragraph 182(4A)(b)

Omit “, technical licence specifications”.

78  Subsection 184(1)

Omit “, technical licence specification”.

79  Paragraph 184(2)(a)

Omit “, technical licence specification”.

80  At the end of section 186

Add:

             (2)  In addition to its effect apart from this subsection, subsection (1) also has the effect it would have if each reference in that subsection to a device were, by express provision, confined to:

                     (a)  a radiocommunications transmitter; or

                     (b)  a radiocommunications receiver; or

                     (c)  a device, where the operation of the device is likely to interfere with radiocommunications; or

                     (d)  a device, where the uses or functions of the device are likely to be interfered with by the operation of radiocommunications transmitters.

             (3)  In addition to its effect apart from this subsection, subsection (1) also has the effect it would have if each reference in that subsection to a person were, by express provision, confined to a corporation to which paragraph 51(xx) of the Constitution applies.

             (4)  In addition to its effect apart from this subsection, subsection (1) also has the effect it would have if each reference in that
subsection to sell or supply were, by express provision, confined to sell or supply:

                     (a)  in the course of, or in relation to:

                              (i)  trade or commerce between Australia and places outside Australia; or

                             (ii)  trade or commerce among the States; or

                            (iii)  trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

                     (b)  to the Commonwealth, to a Territory or to an authority or instrumentality of the Commonwealth or of a Territory.

81  At the end of section 187

Add:

             (2)  In addition to its effect apart from this subsection, subsection (1) also has the effect it would have if the reference in that subsection to a device were, by express provision, confined to:

                     (a)  a radiocommunications transmitter; or

                     (b)  a radiocommunications receiver; or

                     (c)  a device, where the operation of the device is likely to interfere with radiocommunications; or

                     (d)  a device, where the uses or functions of the device are likely to be interfered with by the operation of radiocommunications transmitters.

             (3)  In addition to its effect apart from this subsection, subsection (1) also has the effect it would have if each reference in that subsection to a person were, by express provision, confined to a corporation to which paragraph 51(xx) of the Constitution applies.

             (4)  In addition to its effect apart from this subsection, subsection (1) also has the effect it would have if each reference in that subsection to a person were, by express provision, confined to a person who manufactured or imported the device for the purposes of supply:

                     (a)  in the course of, or in relation to:

                              (i)  trade or commerce between Australia and places outside Australia; or

                             (ii)  trade or commerce among the States; or

                            (iii)  trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

                     (b)  to the Commonwealth, to a Territory or to an authority or instrumentality of the Commonwealth or of a Territory.

82  At the end of section 187A

Add:

             (2)  In addition to its effect apart from this subsection, subsection (1) also has the effect it would have if each reference in that subsection to a device were, by express provision, confined to:

                     (a)  a radiocommunications transmitter; or

                     (b)  a radiocommunications receiver; or

                     (c)  a device, where the operation of the device is likely to interfere with radiocommunications; or

                     (d)  a device, where the uses or functions of the device are likely to be interfered with by the operation of radiocommunications transmitters.

             (3)  In addition to its effect apart from this subsection, subsection (1) also has the effect it would have if the reference in that subsection to a manufacturer or importer were, by express provision, confined to a manufacturer, or an importer, that is a corporation to which paragraph 51(xx) of the Constitution applies.

             (4)  In addition to its effect apart from this subsection, subsection (1) also has the effect it would have if each reference in that subsection to a manufacturer or importer were, by express provision, confined to a manufacturer, or an importer, who manufactured or imported the device for the purposes of supply:

                     (a)  in the course of, or in relation to:

                              (i)  trade or commerce between Australia and places outside Australia; or

                             (ii)  trade or commerce among the States; or

                            (iii)  trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

                     (b)  to the Commonwealth, to a Territory or to an authority or instrumentality of the Commonwealth or of a Territory.

83  At the end of subsection 190(2)

Add:

               ; or (c)  is a radiocommunications transmitter, or a radiocommunications receiver, that would be reasonably likely to have an adverse effect on the health or safety of persons who:

                              (i)  operate the device; or

                             (ii)  work on the device; or

                            (iii)  use services supplied by means of the device; or

                            (iv)  are reasonably likely to be affected by the operation of the device.

84  After paragraph 233(k)

Insert:

                   (ka)  if requested to do so—to provide services or facilities, on a commercial basis, where:

                              (i)  the services or facilities relate to radiocommunications; or

                             (ii)  the provision of the services or facilities utilises the SMA’s spare capacity; or

                            (iii)  the provision of the services or facilities maintains or improves the specialised technical skills of the SMA’s staff in relation to radiocommunications or telecommunications; and

85  At the end of section 233

Add:

             (2)  Paragraph (1)(ka) does not authorise the SMA to perform a function if the performance of the function would impede the SMA’s capacity to perform its other functions.

             (3)  In this section:

telecommunications means the carriage of communications by means of guided and/or unguided electromagnetic energy.

86  Subsection 238(2)

Omit “or technical licence specifications”.

87  Paragraph 262(2)(a)

Omit “or technical licence specifications”.

88  Section 293

Omit “recovering its costs relating to”.

89  At the end of section 293

Add:

             (2)  A charge fixed under subsection (1) must be reasonably related to the expenses incurred or to be incurred by the SMA in relation to the matters to which the charge relates and must not be such as to amount to taxation.

             (3)  This section does not apply to services or facilities that the SMA provides under contract.

90  Paragraph 303(h)

Omit “and technical licence specifications”.

91  Section 312

After “Part 3.2” insert “or 3.3”.

92  Continuity of section 60 determinations

The amendments of section 60 of the Radiocommunications Act 1992 made by this Schedule do not affect the continuity of a determination that was in force under that section immediately before the commencement of this item.

93  Continuity of section 106 determinations

The amendments of section 106 of the Radiocommunications Act 1992 made by this Schedule do not affect the continuity of a determination that was in force under that section immediately before the commencement of this item.

94  Continuity of section 293 determinations

The amendments of section 293 of the Radiocommunications Act 1992 made by this Schedule do not affect the continuity of a determination that was in force under that section immediately before the commencement of this item.

 

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 5 December 1996

Senate on 25 February 1997]

 

(158/96)

 


  

I HEREBY CERTIFY that the above is a fair print of the Radiocommunications Amendment Bill 1997 which originated in the House of Representatives as the Radiocommunications Amendment Bill 1996 and has been finally passed by the Senate and the House of Representatives.

 

 

 

Clerk of the House of Representatives

 

IN THE NAME OF HER MAJESTY, I assent to this Act.

 

 

 

Governor-General

1997