Federal Register of Legislation - Australian Government

Primary content

Radiocommunications Act 1992

Authoritative Version
Act No. 174 of 1992 as amended, taking into account amendments up to Broadcasting Legislation Amendment (Digital Radio) Act 2007
An Act about management of the radiofrequency spectrum, and other matters
Administered by: Communications and the Arts
Registered 14 Jun 2016
Start Date 10 Mar 2016
End Date 30 Jun 2016

Radiocommunications Act 1992

No. 174, 1992

Compilation No. 64

Compilation date:                              10 March 2016

Includes amendments up to:            Act No. 14, 2016

Registered:                                         14 June 2016

 

 

 

 

 

 

 

 

 

This compilation includes commenced amendments made by Act No. 4, 2016

About this compilation

This compilation

This is a compilation of the Radiocommunications Act 1992 that shows the text of the law as amended and in force on 10 March 2016 (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If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.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

Chapter 1—Preliminary                                                                                         1

Part 1.1—Formal matters                                                                                                 1

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

2............................ Commencement.................................................................. 1

Part 1.2—Object of this Act                                                                                             2

3............................ The object of this Act.......................................................... 2

4............................ Outline of this Act.............................................................. 2

Part 1.3—Interpretative provisions                                                                             4

5............................ Definitions.......................................................................... 4

6............................ Definition of radiocommunication................................... 17

7............................ Definitions of radiocommunications device, radiocommunications transmitter and radiocommunications receiver............................................................................. 17

8............................ Definitions of radio emission and transmitter.................. 18

9............................ Definitions of device, non‑standard device and non‑standard transmitter              19

9A......................... Application of labels......................................................... 19

9B.......................... Digital mode..................................................................... 20

9C.......................... Digital community radio broadcasting representative company                20

9D......................... Incumbent digital radio broadcasting licensees................. 23

10.......................... Public or community services........................................... 23

10A....................... ACMA determinations about space objects...................... 24

11.......................... References to offences against this Act etc....................... 24

Part 1.4—Application of this Act                                                                               25

12.......................... Outline of this Part............................................................ 25

Division 1—General                                                                                                    26

13.......................... Crown to be bound........................................................... 26

Division 2—Provisions relating to location and similar matters         27

14.......................... Operation of this Division................................................ 27

15.......................... Application to external Territories..................................... 27

16.......................... Application outside Australia............................................ 27

17.......................... Offshore areas.................................................................. 28

17A....................... Western Greater Sunrise area............................................ 28

18.......................... Application to the atmosphere etc..................................... 29

Division 3—Provisions extending the concept of radiocommunication 30

19.......................... Operation of this Division................................................ 30

20.......................... Radio transmissions for the purpose of measurement....... 30

21.......................... Astronomical and meteorological observations................. 33

22.......................... Lighthouses etc................................................................. 33

Division 4—Matters to which this Act does not apply                              34

23.......................... Foreign space objects, vessels and aircraft........................ 34

24.......................... Defence research and intelligence..................................... 34

25.......................... Special defence undertakings............................................ 35

26.......................... Additional exemption for defence matters......................... 35

27.......................... Exemption for defence, law enforcement and emergency personnel        36

28.......................... Use of devices by the ACMA.......................................... 37

Chapter 2—Radio frequency planning                                                38

29.......................... Outline of this Chapter...................................................... 38

Part 2.1—Spectrum plans and frequency band plans                                  39

30.......................... Spectrum plans................................................................. 39

31.......................... Planning of broadcasting services bands.......................... 39

32.......................... Frequency band plans....................................................... 41

33.......................... Publication etc. of plans.................................................... 42

Part 2.2—Conversion plans and marketing plans                                           44

36.......................... Designation of parts of the spectrum for spectrum licences 44

37.......................... Preparation or variation of frequency band plans.............. 45

38.......................... Conversion plans.............................................................. 45

39.......................... Marketing plans—unencumbered spectrum...................... 46

39A....................... Marketing plans—re‑allocation of spectrum..................... 47

41.......................... Delays in preparing plans................................................. 49

42.......................... Variation of plans............................................................. 49

44.......................... Expressions of interest in spectrum licences..................... 49

Part 2.3—Digital radio channel plans                                                                      50

44A....................... Preparation of digital radio channel plans......................... 50

Chapter 3—Licensing of radiocommunications                         53

45.......................... Outline of this Chapter...................................................... 53

Part 3.1—Unlicensed radiocommunications                                                        55

Division 1—Offences                                                                                                   55

46.......................... Unlicensed operation of radiocommunications devices..... 55

47.......................... Unlawful possession of radiocommunications devices..... 55

48.......................... Additional provisions about possession of radiocommunications devices               56

49.......................... Emergency operation etc. of radiocommunications devices 57

Division 2—Civil proceedings                                                                                58

50.......................... Civil proceedings.............................................................. 58

Part 3.2—Spectrum licences                                                                                          59

51.......................... Outline of this Part............................................................ 59

Division 1—Issuing spectrum licences                                                               60

Subdivision A—Converting apparatus licences into spectrum licences     60

52.......................... Application of this Subdivision........................................ 60

53.......................... Preparation of draft spectrum licences.............................. 60

54.......................... Notification of draft spectrum licences.............................. 60

55.......................... Representations about draft spectrum licences.................. 61

56.......................... Offer of spectrum licences................................................ 61

57.......................... Issuing of spectrum licences on acceptance of offers........ 62

58.......................... Failures to accept offers.................................................... 62

59.......................... Compliance with plans...................................................... 63

Subdivision B—Issuing spectrum licences                                                         63

60.......................... Procedures for allocating spectrum licences...................... 63

61.......................... Preparation of draft spectrum licences.............................. 66

62.......................... Issue of spectrum licences................................................ 66

63.......................... Compliance with marketing plans..................................... 67

Subdivision C—Contents of spectrum licences                                                 67

64.......................... Authorisation to use part of the spectrum......................... 67

65.......................... Duration of spectrum licences........................................... 67

66.......................... Core conditions of spectrum licences................................ 68

67.......................... Conditions about payment of charges............................... 69

68.......................... Conditions about third party use....................................... 69

68A....................... Authorisation under spectrum licence is to be treated as acquisition of asset           70

69.......................... Conditions about registration of radiocommunications transmitters         70

69A....................... Conditions about residency etc......................................... 70

71.......................... Other conditions of spectrum licences.............................. 71

Subdivision D—Rules about section 50 and related provisions of the Competition and Consumer Act  71

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

Division 2—Varying spectrum licences                                                            73

72.......................... Variation with agreement.................................................. 73

73.......................... Variation without agreement............................................. 73

Division 3—Suspending and cancelling spectrum licences                      74

74.......................... Application of this Division.............................................. 74

75.......................... Suspending spectrum licences.......................................... 74

76.......................... Period of suspension........................................................ 74

77.......................... Cancelling spectrum licences............................................ 75

Division 4—Re‑issuing spectrum licences                                                        76

78.......................... Notice of spectrum licences that are about to be re‑issued 76

79.......................... Preparation of draft spectrum licences for re‑issue........... 76

80.......................... Procedures for re‑allocating spectrum licences................. 76

81.......................... Re‑issue of spectrum licences........................................... 77

82.......................... Re‑issue of spectrum licences to the same licensees in the public interest                77

83.......................... General rules about newly‑issued spectrum licences apply to re‑issued spectrum licences      78

84.......................... Commencement of re‑issued spectrum licences................ 78

Division 5—Trading spectrum licences                                                             79

85.......................... Trading spectrum licences................................................. 79

86.......................... Registration of assignments etc......................................... 79

87.......................... Variation etc. of spectrum licences to take assignments into account       79

88.......................... Rules about assignments etc............................................. 80

Division 6—Resuming spectrum licences                                                         81

Subdivision A—Resuming spectrum licences by agreement                         81

89.......................... ACMA may resume spectrum licences by agreement....... 81

90.......................... Effect of resumption......................................................... 81

Subdivision B—Resuming spectrum licences by compulsory process        82

91.......................... ACMA may resume spectrum licences compulsorily....... 82

92.......................... Effect of resumption......................................................... 82

93.......................... Payment of compensation................................................. 82

94.......................... Interest payable on resumption etc.................................... 83

95.......................... Reaching agreements during the compulsory process....... 83

Part 3.3—Apparatus licences                                                                                        84

96.......................... Outline of this Part............................................................ 84

Division 1—Types of apparatus licences                                                          85

97.......................... Transmitter licences and receiver licences......................... 85

98.......................... Types of transmitter licences and receiver licences........... 85

98A....................... Channel A datacasting transmitter licence......................... 86

98B........................ Channel B datacasting transmitter licence......................... 86

98C........................ Foundation category 1 digital radio multiplex transmitter licence             86

98D....................... Foundation category 2 digital radio multiplex transmitter licence             87

98E........................ Limit on declaration of foundation digital radio multiplex transmitter licences         87

Division 2—Issuing apparatus licences                                                             89

99.......................... Applications for apparatus licences................................... 89

100........................ Issuing apparatus licences................................................. 89

100AA.................. NBS transmitter licences—authorised channels................ 92

100A..................... NBS transmitter licences—authorisation of datacasting services             93

100C...................... NBS transmitter licences—authorisation of radio broadcasting services  94

100D..................... NBS transmitter licences—authorisation of SDTV multi‑channelled national television broadcasting services.......................................................................................... 94

100E...................... NBS transmitter licences—authorisation of HDTV multi‑channelled national television broadcasting services.......................................................................................... 95

101........................ Testing of radiocommunications devices.......................... 96

101A..................... Transmitter licences for temporary community broadcasting 97

102........................ Transmitter licences for certain broadcasting services....... 97

102AD.................. Transmitter licences—authorised channels....................... 99

102B...................... Datacasting transmitter licences...................................... 100

102C...................... Category 1 digital radio multiplex transmitter licences.... 100

102D..................... Category 2 digital radio multiplex transmitter licences.... 103

102E...................... Category 3 digital radio multiplex transmitter licences.... 106

102F...................... Limit on issue of non‑foundation digital radio multiplex transmitter licences           108

103........................ Duration of apparatus licences........................................ 108

104........................ Compliance with plans.................................................... 109

105........................ Parts of the spectrum allocated for spectrum licences..... 110

106........................ Price‑based allocation system for certain transmitter licences.. 110

106A..................... Issue of apparatus licence is to be treated as acquisition of asset of a person for the purposes of section 50 of the Competition and Consumer Act................................ 113

Division 3—Conditions of apparatus licences                                             114

107........................ General conditions.......................................................... 114

108........................ Additional conditions for transmitter licences................. 115

108A..................... Conditions of transmitter licences for temporary community broadcasters              117

109........................ Conditions of transmitter licences for certain broadcasting services         118

109A..................... Conditions of datacasting transmitter licences................. 119

109B...................... Conditions of digital radio multiplex transmitter licences—general          126

109C...................... Conditions of category 1 and category 2 digital radio multiplex transmitter licences—access etc.           130

109D..................... Conditions of foundation digital radio multiplex transmitter licences       131

110........................ Conditions relating to interference.................................. 133

111........................ Changes to licence conditions......................................... 133

112........................ Guidelines relating to conditions etc............................... 134

113........................ Contravention of conditions............................................ 135

113A..................... Constitutional safety net—issue of shares to digital community radio broadcasting representative company........................................................................................ 135

Division 4—Third party users                                                                             137

114........................ Licensees may authorise third party users....................... 137

114A..................... Authorisation under apparatus licence is to be treated as acquisition of asset of a person for the purposes of section 50 of the Competition and Consumer Act........... 138

115........................ Determinations limiting authorisation of third party users 139

116........................ Revocation of authorisations........................................... 139

117........................ Licensees must keep records of authorisations............... 140

118........................ Licensees must notify authorised persons of certain matters 140

Division 4A—Access to channel B datacasting transmitter licences 142

118A..................... Access to channel B datacasting transmitter licences...... 142

118B...................... Applicant for channel B datacasting transmitter licences must give the ACCC an access undertaking     142

118C...................... Further information about access undertaking................ 143

118D..................... ACCC to accept or reject access undertaking.................. 144

118E...................... Duration of access undertaking etc................................. 144

118F...................... Variation of access undertakings.................................... 145

118G..................... Further information about variation of access undertaking 146

118H..................... Decision‑making criteria................................................. 147

118J....................... Register of access undertakings...................................... 147

118K...................... Enforcement of access undertakings............................... 148

118L...................... Procedural Rules............................................................. 148

118M..................... Definitions...................................................................... 150

Division 4B—Access to digital radio multiplex transmitter licences 151

Subdivision A—Introduction                                                                               151

118N..................... Simplified outline............................................................ 151

118NA.................. Scope.............................................................................. 151

118NB................... Definitions...................................................................... 151

118NC................... National broadcasters...................................................... 153

Subdivision B—Access undertakings                                                                153

118ND.................. Digital radio multiplex transmitter licensees must give the ACCC access undertakings           153

118NE................... Further information about access undertakings............... 154

118NF................... ACCC to accept or reject access undertakings................ 155

118NG.................. Duration of access undertakings etc................................ 156

118NH.................. Variation of access undertakings.................................... 158

118NI.................... Further information about variation of access undertakings 160

118NJ.................... Decision‑making criteria................................................. 161

118NK................... Register of access undertakings...................................... 161

Subdivision C—Standard access obligations, excess‑capacity access obligations and distributed‑capacity access obligations                                                                                  162

118NL................... Standard access obligations............................................ 162

118NM.................. Excess‑capacity access obligations................................. 162

118NN.................. Distributed‑capacity access obligations........................... 163

118NO.................. Compliance with access obligations................................ 164

118NP................... Other obligations............................................................ 164

118NQ.................. Standard access entitlements of commercial broadcasters 164

118NR................... Standard access entitlements of community broadcasters 166

118NS................... Standard access entitlements of national broadcasters..... 173

118NT................... Excess‑capacity access entitlements etc........................... 174

118NU.................. Distributed‑capacity access entitlements etc.................... 178

118NV.................. Capacity cap—digital commercial radio broadcasting licensees               181

118NW.................. Suspension of access entitlements.................................. 182

118NX.................. Transfer of digital radio multiplex transmitter licence..... 182

118NY.................. Renewal of digital radio multiplex transmitter licence..... 184

Subdivision D—Enforcement                                                                              185

118NZ................... Judicial enforcement of access obligations etc................ 185

118P...................... Enforcement of access undertakings............................... 186

Subdivision E—External audits                                                                         186

118PA................... External audits................................................................ 186

118PB................... Eligibility for appointment.............................................. 189

118PC................... External auditor may have regard to the results of previous audit            190

118PD................... External auditors............................................................. 190

Subdivision F—Review of decisions                                                                  191

118PE.................... Review by Australian Competition Tribunal................... 191

118PF.................... Functions and powers of Australian Competition Tribunal 191

118PG................... Provisions that do not apply in relation to a Australian Competition Tribunal review              195

118PH................... Statement of reasons for reviewable decision—specification of documents             195

Subdivision G—Injunctions                                                                                 195

118PI..................... Injunctions...................................................................... 195

118PJ.................... Interim injunctions.......................................................... 196

118PK................... Discharge or variation of injunctions.............................. 197

118PL.................... Certain limits on granting injunctions not to apply.......... 197

118PM.................. Other powers of the Federal Court unaffected................ 198

Subdivision H—Miscellaneous                                                                           198

118PN................... Annual reports................................................................ 198

118PO................... Procedural Rules............................................................. 199

118PP.................... Constitutional safety net.................................................. 200

Division 4C—Access to broadcasting transmission towers etc. by digital radio multiplex transmitter licensees and authorised persons                                              201

Subdivision A—Introduction                                                                               201

118Q..................... Simplified outline............................................................ 201

118QA.................. Definitions...................................................................... 202

118QB................... Designated associated facilities....................................... 202

118QC................... Extended meaning of access........................................... 203

Subdivision B—Access to broadcasting transmission towers etc. by digital radio multiplex transmitter licensees                                                                                                       203

118QD.................. Access to broadcasting transmission towers................... 203

118QE................... Access to designated associated facilities........................ 205

118QF................... Access to sites of broadcasting transmission towers...... 206

118QG.................. Terms and conditions of access...................................... 208

118QH.................. Code relating to access.................................................... 210

Subdivision C—Miscellaneous                                                                            210

118QI.................... Arbitration—acquisition of property............................... 210

118QJ.................... Relationship between this Division and the National Transmission Network Sale Act 1998   211

Division 5—Qualified operators                                                                         212

119........................ ACMA to determine the need for qualified operators..... 212

120........................ Applications for certificates of proficiency..................... 212

121........................ Issuing certificates of proficiency................................... 212

122........................ Restrictions on issuing certificates of proficiency........... 212

122A..................... Delegating the power to issue certificates of proficiency 213

123........................ Re‑examination of qualified operators............................ 214

124........................ Cancelling certificates of proficiency.............................. 215

Division 6—Suspending and cancelling apparatus licences: general 217

Subdivision A—General provisions                                                                  217

125........................ Application of this Subdivision...................................... 217

126........................ Suspending apparatus licences........................................ 217

127........................ Period of suspension...................................................... 218

128........................ Cancelling apparatus licences.......................................... 218

Subdivision B—International broadcasting services                                    219

128A..................... Application of this Subdivision...................................... 219

128B...................... Cancelling transmitter licences........................................ 219

Division 6A—Suspending and cancelling datacasting transmitter licences         220

128C...................... Suspending datacasting transmitter licences.................... 220

128D..................... Cancelling datacasting transmitter licences...................... 220

Division 7—Renewing apparatus licences                                                     221

129........................ Applications for renewal of apparatus licences............... 221

130........................ Renewing apparatus licences.......................................... 221

131........................ Application of other provisions...................................... 223

Division 8—Transfer of apparatus licences                                                 224

131AA.................. Applications for transfer of apparatus licences............... 224

131AB................... Transfer of apparatus licences......................................... 225

131AC................... Apparatus licences not transferable in certain circumstances 225

131ACA................ Datacasting transmitter licences...................................... 226

Division 10—Provisional international broadcasting certificates    227

131AE................... Applications for certificates............................................ 227

131AF................... Issuing certificates.......................................................... 227

131AG.................. Duration of certificates.................................................... 228

Part 3.4—Class licences                                                                                                  229

Division 1—General                                                                                                  229

132........................ ACMA may issue class licences..................................... 229

133........................ Conditions of class licences............................................ 229

134........................ Varying class licences..................................................... 230

136........................ Consultation on variations and revocations..................... 230

137........................ Compliance with plans.................................................... 232

138........................ Parts of the spectrum allocated for spectrum licences..... 232

Division 2—Requests for advice                                                                         233

140........................ Requests for advice on operation of radiocommunications devices          233

141........................ ACMA to advise on the operation of radiocommunications devices        233

142........................ The effect of the ACMA’s advice................................... 233

Part 3.5—Registration of licences                                                                            235

143........................ The Register of Radiocommunications Licences............. 235

144........................ Contents of the Register—spectrum licences.................. 235

145........................ Refusal to register radiocommunications transmitters for operation under spectrum licences  235

146........................ Updating the Register to take variations etc. of spectrum licences into account        236

147........................ Contents of the Register—apparatus licences................. 237

148........................ Updating the Register to take variations etc. of apparatus licences into account       238

149........................ Contents of the Register—class licences......................... 238

150........................ Updating the Register to take variations etc. of class licences into account              238

151........................ Inspection of the Register............................................... 238

152........................ Parts of the Register may be kept confidential................ 239

153........................ Correction of the Register............................................... 239

Part 3.6—Re‑allocation of encumbered spectrum                                         241

153A..................... Outline of this Part.......................................................... 241

153B...................... Spectrum re‑allocation declaration.................................. 241

153C...................... Spectrum re‑allocation declaration—ancillary provisions 242

153D..................... Affected apparatus licences and licensees....................... 243

153E...................... Minister may make a spectrum re‑allocation declaration only after receiving the ACMA’s recommendation........................................................................................ 243

153F...................... ACMA may recommend that the Minister make a spectrum re‑allocation declaration             244

153G..................... Comments by potentially‑affected apparatus licensees on recommendation             244

153H..................... Effect of spectrum re‑allocation declaration.................... 245

153J....................... Revocation and variation of spectrum re‑allocation declaration                245

153K...................... Automatic revocation of spectrum re‑allocation declaration if no licences allocated by re‑allocation deadline........................................................................................ 246

153L...................... Re‑allocation by means of issuing spectrum licences...... 247

153M..................... Re‑allocation by means of issuing apparatus licences..... 247

153N..................... Restriction on issuing spectrum licences for parts of the spectrum subject to re‑allocation      247

153P...................... Restriction on issuing apparatus licences for parts of the spectrum subject to re‑allocation     248

Chapter 4—General regulatory provisions                                    250

154........................ Outline of this Chapter.................................................... 250

Part 4.1—Standards and other technical regulation                                    251

Division 1—Preliminary                                                                                          251

155........................ The object of this Part..................................................... 251

156........................ Outline of this Part.......................................................... 251

Division 2—Non‑standard devices                                                                     253

157........................ Emissions from non‑standard transmitters...................... 253

158........................ Possession of non‑standard devices............................... 255

159........................ Additional provisions about possession of devices........ 260

160........................ Supply of non‑standard devices...................................... 260

161........................ Imputed knowledge........................................................ 263

Division 3—Standards                                                                                              264

162........................ The ACMA’s power to make standards......................... 264

163........................ Procedures for making standards.................................... 265

163A..................... Making standards in cases of urgency............................ 266

Division 4—Permits for non‑standard devices                                            267

166........................ The effect of permits....................................................... 267

167........................ The ACMA may issue permits....................................... 267

168........................ Conditions of permits..................................................... 268

169........................ Duration of permits......................................................... 268

169A..................... Compensation—constitutional safety‑net........................ 270

170........................ Contraventions of permit conditions............................... 270

171........................ Cancelling permits.......................................................... 271

Division 5—Other exemptions from Division 2                                          272

172........................ Emergency transmissions etc.......................................... 272

173........................ Possession or supply for use solely outside Australia.... 272

174........................ Supply with permission.................................................. 273

175........................ Supply for modification etc............................................. 273

176........................ Supply for re‑export....................................................... 273

177........................ Burden of proof.............................................................. 273

178........................ Reasonable excuse.......................................................... 274

Division 7—Labelling of devices                                                                         275

182........................ Requirements to apply labels etc..................................... 275

183........................ Recognised testing authorities......................................... 277

183A..................... Certification bodies......................................................... 277

186........................ Sale etc. of devices without labels................................... 277

187........................ Applying labels before satisfying requirements under subsection 182(4)                279

187A..................... Failure to retain records.................................................. 280

188........................ Imputed knowledge........................................................ 281

188A..................... Protected symbols........................................................... 281

Division 8—Prohibited devices                                                                            286

189........................ Operation etc. of prohibited devices................................ 286

190........................ Declaration of prohibited devices.................................... 286

191........................ Consultation on proposed declarations........................... 287

Part 4.2—Offences relating to radio emission                                                  289

192........................ Interference likely to prejudice safe operation of vessels, aircraft or space objects   289

193........................ Interference in relation to certain radiocommunications.. 289

194........................ Interference likely to endanger safety or cause loss or damage                290

195........................ Transmission from foreign vessel, aircraft or space object 290

196........................ Emergency transmissions etc.......................................... 291

197........................ Causing interference etc.................................................. 291

198........................ Transmission of false information.................................. 292

199........................ Transmission likely to cause explosion........................... 292

200........................ Imputed knowledge........................................................ 293

201........................ Operation of laws of States or Territories....................... 293

Part 4.3—Settlement of interference disputes                                                  294

Division 1—Conciliators                                                                                         294

202........................ Appointment of a conciliator........................................... 294

203........................ Terms and conditions etc................................................ 294

204........................ Remuneration and allowances......................................... 294

Division 2—Referral of matters to conciliators                                         296

205........................ Referral of complaints to conciliators.............................. 296

206........................ Referral of other matters to conciliators.......................... 296

207........................ Consideration of whether to refer a matter...................... 297

Division 3—The conciliation process                                                               298

208........................ Conciliator may effect settlement in relation to disputed conduct             298

209........................ Conciliator may decide not to make inquiry.................... 298

210........................ Compulsory conference.................................................. 299

211........................ Protection from civil actions........................................... 300

Division 4—Directions                                                                                             301

212........................ ACMA may issue directions.......................................... 301

213........................ Complainants to be kept informed.................................. 302

214........................ Contravention of a direction............................................ 302

215........................ Commonwealth not liable for costs................................. 302

Division 5—Miscellaneous                                                                                     303

216........................ Offences relating to settlement of interference disputes.. 303

217........................ Operation of State and Territory laws............................. 303

Part 4.4—Restricted use zones                                                                                   304

Division 1—Declarations of emergency                                                         304

219........................ Declaration of period of emergency................................ 304

220........................ Circumstances in which Proclamation may be made....... 304

221........................ Termination of period of emergency............................... 304

Division 2—Restrictive orders                                                                            305

222........................ Restrictive orders............................................................ 305

223........................ Publication of restrictive orders...................................... 305

224........................ Application of orders to broadcasting............................. 306

225........................ Revocation of orders....................................................... 306

226........................ Orders may have extended operation.............................. 306

227........................ Contravention of orders.................................................. 306

228........................ Orders to prevail over inconsistent laws......................... 307

229........................ Restrictive orders are legislative instruments.................. 307

Division 3—Guidelines for making restrictive orders                            308

230........................ Minister may make guidelines........................................ 308

Chapter 5—Administration and enforcement                            309

231........................ Outline of this Chapter.................................................... 309

Part 5.1—Delegation                                                                                                        310

238........................ Delegation....................................................................... 310

Part 5.2—Public inquiries                                                                                             311

255........................ ACMA may hold inquiry............................................... 311

256........................ ACMA to hold inquiry when directed............................ 311

257........................ Informing the public about an inquiry............................. 312

258........................ Discussion paper............................................................ 312

259........................ Written submissions....................................................... 313

260........................ Protection from civil actions........................................... 313

261........................ Hearings......................................................................... 313

261A..................... Hearing to be in public except in exceptional cases......... 314

261B...................... Confidential material not to be published........................ 314

261C...................... Direction about private hearings..................................... 315

261D..................... Reports on inquiries........................................................ 317

Part 5.3—Advisory guidelines                                                                                    318

262........................ ACMA may make advisory guidelines........................... 318

Part 5.4—Accreditation                                                                                                  319

263........................ ACMA may accredit persons......................................... 319

264........................ Withdrawal of accreditation............................................ 319

265........................ Procedure for withdrawing accreditation........................ 320

266........................ Accreditation principles.................................................. 320

266A..................... ACMA determination in relation to certificates............... 321

Part 5.5—Enforcement                                                                                                   322

Division 1—Inspectors                                                                                             322

267........................ Inspectors....................................................................... 322

268........................ Identity cards.................................................................. 322

Division 2—Search warrants                                                                               324

269........................ Magistrate may issue warrant......................................... 324

270........................ Warrants may be issued by telephone or other electronic means              325

Division 3—Searches and seizures                                                                    328

271........................ References to connection with an offence....................... 328

272........................ General offence related searches and seizures................. 328

273........................ Evidence about the commission of other offences.......... 329

274........................ Production of identity card etc........................................ 329

275........................ Emergency searches and seizures................................... 330

276........................ Retention of thing seized................................................. 331

Division 4—Powers of inspectors                                                                       332

277........................ Power of inspectors to enter premises and adjust transmitters in emergencies         332

278........................ Powers of inspectors to require operation of transmitters 333

279........................ General powers of inspectors......................................... 333

Division 5—Forfeiture                                                                                             335

280........................ Court may order forfeiture.............................................. 335

281........................ Forfeited goods may be sold........................................... 335

Division 6—Miscellaneous                                                                                     336

282........................ Act not to affect performance of duties by inspectors..... 336

283........................ Inspectors not authorised to enter or search certain land or premises used for defence purposes             336

284........................ Offences that are going to be committed......................... 336

Part 5.6—Review of decisions                                                                                    338

Division 1—Decisions subject to internal reconsideration before AAT review                338

285........................ Decisions that may be subject to reconsideration by the ACMA             338

286........................ Deadlines for reaching certain decisions......................... 339

287........................ Statements to accompany notification of decisions......... 340

288........................ Applications for reconsideration of decisions................. 340

289........................ Reconsideration by the ACMA...................................... 341

290........................ Deadlines for reconsiderations........................................ 341

291........................ Statements to accompany notification of decisions on reconsideration     341

292........................ Review by the AAT........................................................ 342

Division 2—Decisions not subject to internal reconsideration before AAT review        343

292A..................... Review by the AAT........................................................ 343

292B...................... Notification of decisions to include notification of reasons and appeal rights          343

Part 5.7—Charges                                                                                                             344

294........................ Spectrum access charges................................................. 344

295........................ Publication of determinations.......................................... 345

296........................ Collection of charges on behalf of the ACMA............... 345

297........................ Limits on charges............................................................ 345

298........................ Recovery of charges....................................................... 345

298A..................... Fees imposed by certain bodies...................................... 345

Part 5.8—Enforceable undertakings                                                                     346

298B...................... Simplified outline............................................................ 346

298C...................... Acceptance of undertakings............................................ 346

298D..................... Enforcement of undertakings.......................................... 346

Chapter 6—Miscellaneous                                                                                348

299........................ International agreements etc............................................ 348

300........................ Labelling of radiocommunications transmitters for purposes of identification         348

301........................ Supply of radiocommunications devices to unlicensed persons               349

303........................ Compilation etc. of information...................................... 350

304........................ Applications etc. in electronic form................................. 350

305........................ Evidentiary certificates.................................................... 351

306........................ Conduct by directors, employees and agents.................. 352

307........................ Surrender of licences, certificates and permits................ 353

308........................ No compensation for suspensions and cancellations...... 353

309........................ Officers and employees of governments and authorities. 354

310........................ Operation of this Act in relation to the Broadcasting Services Act           354

311........................ Act not to affect performance of functions by States or certain Territories               354

312........................ Application of the Competition and Consumer Act........ 354

313........................ Legislation of the Australian Antarctic Territory............. 355

313A..................... Application of the Criminal Code................................... 355

314........................ Regulations..................................................................... 355

314A..................... Instruments under this Act may provide for matters by reference to other instruments            356

315........................ Penalties payable instead of prosecution......................... 358

Schedule—Resuming spectrum licences by compulsory process      360

Part 1—Resumption Procedures                                                                              360

1............................ Pre‑acquisition declarations............................................ 360

2............................ Service on licensees and third party users....................... 360

3............................ Resumption notices......................................................... 361

4............................ Date of effect of resumptions.......................................... 361

5............................ Notification of licensees.................................................. 361

Part 2—Compensation                                                                                                    363

1............................ The basis on which compensation is payable.................. 363

2............................ Amounts of compensation payable................................. 364

3............................ Claims for compensation................................................ 364

4............................ Consideration of claims by the ACMA.......................... 364

5............................ Deadline for consideration of claims............................... 365

6............................ Consideration of offers by licensees............................... 365

7............................ Determination of compensation by the AAT.................. 365

8............................ Determination of compensation by the Federal Court..... 366

9............................ Determination of compensation by independent valuers. 366

Endnotes                                                                                                                                  368

Endnote 1—About the endnotes                                                                          368

Endnote 2—Abbreviation key                                                                              370

Endnote 3—Legislation history                                                                           371

Endnote 4—Amendment history                                                                         383


An Act about management of the radiofrequency spectrum, and other matters

Chapter 1Preliminary

Part 1.1Formal matters

  

1  Short title

                   This Act may be cited as the Radiocommunications Act 1992.

2  Commencement

                   This Act commences on 1 July 1993.

Part 1.2Object of this Act

  

3  The object of this Act

                   The object of this Act is to provide for management of the radiofrequency spectrum in order to:

                     (a)  maximise, by ensuring the efficient allocation and use of the spectrum, the overall public benefit derived from using the radiofrequency spectrum;

                     (b)  make adequate provision of the spectrum:

                              (i)  for use by agencies involved in the defence or national security of Australia, law enforcement or the provision of emergency services; and

                             (ii)  for use by other public or community services;

                     (c)  provide a responsive and flexible approach to meeting the needs of users of the spectrum;

                     (d)  encourage the use of efficient radiocommunication technologies so that a wide range of services of an adequate quality can be provided;

                     (e)  provide an efficient, equitable and transparent system of charging for the use of spectrum, taking account of the value of both commercial and non‑commercial use of spectrum;

                      (f)  support the communications policy objectives of the Commonwealth Government;

                     (g)  provide a regulatory environment that maximises opportunities for the Australian communications industry in domestic and international markets;

                     (h)  promote Australia’s interests concerning international agreements, treaties and conventions relating to radiocommunications or the radiofrequency spectrum.

4  Outline of this Act

                   In order to achieve this object:

                     (a)  Chapter 2 provides for radio frequency planning that involves preparation of:

                              (i)  a spectrum plan and frequency band plans (see Part 2.1); and

                             (ii)  marketing plans and conversion plans (see Part 2.2); and

                     (b)  Chapter 3 provides for licensing radiocommunications under:

                              (i)  spectrum licences (see Part 3.2); and

                             (ii)  apparatus licences (see Part 3.3); and

                            (iii)  class licences (see Part 3.4);

                     (c)  Chapter 3 also provides for registration of licences (see Part 3.5); and

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

                     (d)  Chapter 4 provides for general regulatory requirements aimed at:

                              (i)  providing for standards and other technical regulation (see Part 4.1); and

                             (ii)  regulating various acts relating to radio emissions, particularly those involving interference with radiocommunications (see Part 4.2); and

                            (iii)  settling interference disputes (see Part 4.3); and

                            (iv)  providing for restricted use zones (see Part 4.4); and

                     (e)  Chapter 5 provides for various other matters dealing with the administration and enforcement of this Act.

Part 1.3Interpretative provisions

  

5  Definitions

                   In this Act, unless the contrary intention appears:

AAT means the Administrative Appeals Tribunal.

ACCC means the Australian Competition and Consumer Commission.

ACMA means the Australian Communications and Media Authority.

advisory guideline means an advisory guideline made under section 262.

aircraft includes a balloon.

apparatus licence means an apparatus licence issued under Part 3.3.

apparatus licence tax means a tax imposed under the Radiocommunications (Receiver Licence Tax) Act 1983 or the Radiocommunications (Transmitter Licence Tax) Act 1983.

apply, in relation to a label, has a meaning affected by section 9A.

Australia, when used in a geographical sense, includes the external Territories.

Australian aircraft means an aircraft that is in Australian control or is registered, or required to be registered, under regulations made under the Civil Aviation Act 1988.

Australian space object means a space object that the ACMA, by legislative instrument, determines to be an Australian space object for the purposes of this Act.

Australian vessel means a vessel that is in Australian control or:

                     (a)  not being an air‑cushion vehicle—is an Australian boat within the meaning of the Fisheries Management Act 1991; or

                     (b)  being an air‑cushion vehicle—would be an Australian boat within the meaning of that Act if it were a boat within the meaning of that Act.

authority, in relation to the Commonwealth, a State or a Territory, means:

                     (a)  a Department; or

                     (b)  a body (whether incorporated or unincorporated) established for a public purpose by or under the law of the Commonwealth, the State or the Territory, as the case may be; or

                     (c)  any other body corporate in which:

                              (i)  the Commonwealth, the State or the Territory, as the case may be; or

                             (ii)  a body corporate referred to in paragraph (b);

                            has a controlling interest.

broadcasting services bands licence has the same meaning as in the Broadcasting Services Act 1992.

broadcasting station means a transmitter that is operating for the purposes of:

                     (a)  a broadcasting services bands licence; or

                     (b)  the provision of a national broadcasting service within the meaning of the Broadcasting Services Act 1992.

BSA control rules means:

                     (a)  sections 54A and 56A of the Broadcasting Services Act 1992; and

                     (b)  clause 41 of Schedule 6 to the Broadcasting Services Act 1992.

BSA coverage area means coverage area within the meaning of Schedule 4 to the Broadcasting Services Act 1992.

BSA datacasting licence means a datacasting licence under Schedule 6 to the Broadcasting Services Act 1992.

BSA exempt re‑transmission service means a service that, under subsection 212(1) of the Broadcasting Services Act 1992, is exempt from the regulatory regime established by that Act.

BSA licence area means licence area within the meaning of the Broadcasting Services Act 1992.

BSA television licence area plan means a television licence area plan within the meaning of the Broadcasting Services Act 1992.

category 1 digital radio multiplex transmitter licence means a transmitter licence for one or more multiplex transmitters that are for use for transmitting either or both of the following services in a designated BSA radio area:

                     (a)  one or more digital commercial radio broadcasting services;

                     (b)  one or more digital community radio broadcasting services.

category 2 digital radio multiplex transmitter licence means a transmitter licence for one or more multiplex transmitters that are for use for transmitting any or all of the following services in a designated BSA radio area:

                     (a)  one or more digital commercial radio broadcasting services;

                     (b)  one or more digital community radio broadcasting services;

                     (c)  one or more digital national radio broadcasting services.

category 3 digital radio multiplex transmitter licence means a transmitter licence for one or more multiplex transmitters that are for use for transmitting one or more digital national radio broadcasting services in a designated BSA radio area.

certificate means:

                              (i)  a certificate of proficiency; or

                             (ii)  a compliance certificate; or

                            (iii)  a frequency assignment certificate referred to in subsection 100(4A); or

                            (iv)  any other kind of certificate that may be issued under this Act.

certificate of proficiency means a certificate of proficiency issued under section 121.

change, in relation to information in the Register, means any one or more of the following:

                     (a)  the addition of matter to the information;

                     (b)  the alteration of matter included in the information;

                     (c)  the deletion of matter from the information.

channel A datacasting transmitter licence has the meaning given by section 98A.

channel B datacasting transmitter licence has the meaning given by section 98B.

class licence means a class licence issued under Part 3.4.

commercial broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

commercial radio broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.

commercial television broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.

community television broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

Commonwealth officer means.

                     (a)  a Minister; or

                     (b)  a person who, whether on a full‑time or a part‑time basis, and whether in a permanent capacity or otherwise:

                              (i)  is in the service or employment of the Commonwealth, the Administration of a Territory or an authority of the Commonwealth; or

                             (ii)  holds or performs the duties of any office or position established by or under a law of the Commonwealth or a Territory; or

                     (c)  a member of the Defence Force; or

                     (d)  the Commissioner of the Australian Federal Police, a Deputy Commissioner of the Australian Federal Police, an AFP employee or a special member of the Australian Federal Police (all within the meaning of the Australian Federal Police Act 1979); or

                     (e)  a member of the police force of a Territory.

community broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

conciliator means a person appointed under section 202.

conciliator’s report means a report by a conciliator under section 208.

conversion plan means a plan prepared under section 38.

core condition means a condition included in a spectrum licence under section 66.

datacasting service has the same meaning as in the Broadcasting Services Act 1992.

datacasting transmitter licence means a transmitter licence for a transmitter that is for use for transmitting a datacasting service, but does not include:

                     (a)  a transmitter licence issued under section 102; or

                    (aa)  a digital radio multiplex transmitter licence; or

                     (b)  an NBS transmitter licence; or

                     (c)  a prescribed transmitter licence.

datacasting transmitter licence fee means a fee imposed under the Datacasting Transmitter Licence Fees Act 2006.

Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.

Department means:

                     (a)  in relation to the Commonwealth—an Agency within the meaning of the Public Service Act 1999; or

                     (b)  in relation to a State or Territory—a body that, in relation to that State or Territory, is a body of such a kind.

designated BSA radio area means:

                     (a)  the BSA licence area of a commercial radio broadcasting licence; or

                     (b)  the BSA licence area of a community radio broadcasting licence, where that BSA licence area is the same as the BSA licence area of a commercial radio broadcasting licence.

Note:          See also section 8AD of the Broadcasting Services Act 1992, which deals with deemed radio broadcasting licence areas.

designated community radio broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.

designated datacasting service has the same meaning as in Schedule 6 to the Broadcasting Services Act 1992.

designated teletext service has the same meaning as in Schedule 6 to the Broadcasting Services Act 1992.

device has the meaning given in subsection 9(1).

digital commercial radio broadcasting licence means a commercial radio broadcasting licence that authorises the provision of one or more digital commercial radio broadcasting services.

digital commercial radio broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

digital community radio broadcasting licence means a designated community radio broadcasting licence that authorises the provision of one or more digital community radio broadcasting services.

digital community radio broadcasting representative company, in relation to a designated BSA radio area, has the meaning given by section 9C.

digital community radio broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

digital national radio broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

digital radio channel plan means a plan under section 44A.

digital radio multiplex transmitter licence means:

                     (a)  a category 1 digital radio multiplex transmitter licence; or

                     (b)  a category 2 digital radio multiplex transmitter licence; or

                     (c)  a category 3 digital radio multiplex transmitter licence.

digital radio start‑up day has the same meaning as in the Broadcasting Services Act 1992.

disputed conduct means conduct (including any act and any refusal or omission to act) of a kind referred to in paragraph 205(1)(a).

domestic digital television receiver means domestic reception equipment that:

                     (a)  is not a hand‑held device; and

                     (b)  is capable of receiving television programs transmitted in:

                              (i)  SDTV digital mode; or

                             (ii)  HDTV digital mode; and

                     (c)  has such other characteristics (if any) as are specified in a legislative instrument made by the ACMA under this paragraph.

For the purposes of paragraph (b), disregard clause 6 of Schedule 6 to the Broadcasting Services Act 1992.

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).

environment means the physical environment.

Federal Court means the Federal Court of Australia.

foreign aircraft means an aircraft that is not an Australian aircraft.

foreign space object means a space object that is not an Australian space object.

foreign vessel means a vessel that is not an Australian vessel.

foundation category 1 digital radio multiplex transmitter licence has the meaning given by section 98C.

foundation category 2 digital radio multiplex transmitter licence has the meaning given by section 98D.

foundation digital radio multiplex transmitter licence means:

                     (a)  a foundation category 1 digital radio multiplex transmitter licence; or

                     (b)  a foundation category 2 digital radio multiplex transmitter licence.

frequency band means any contiguous range of radio frequencies.

frequency band plan means a plan prepared under section 32.

HDTV digital mode has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

import means import into Australia.

in Australian control means in the control or possession of one or more of any of the following:

                     (a)  the Commonwealth (including an arm of the Defence Force) or a State or Territory;

                     (b)  an authority of the Commonwealth;

                     (c)  an authority of a State;

                     (d)  an authority of a Territory.

incumbent digital commercial radio broadcasting licensee has the meaning given by subsection 9D(1).

incumbent digital community radio broadcasting licensee has the meaning given by subsection 9D(2).

inspector has the meaning given in section 267.

interference means:

                     (a)  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 a device; or

                     (b)  in relation to the uses or functions of devices—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 a device.

international broadcasting licence means an international broadcasting licence under the Broadcasting Services Act 1992.

international broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

label has a meaning affected by section 9A.

licence means a spectrum licence, an apparatus licence or a class licence.

licensee means:

                     (a)  in relation to a spectrum licence—the person specified in the licence as the licensee, whether the licence was originally issued to that person or subsequently assigned to him or her; or

                     (b)  in relation to an apparatus licence—the person who holds the licence;

and, in Part 2 of the Schedule, includes the person from whom the spectrum licence in question, or the part of the spectrum licence in question, was resumed.

marketing plan means a plan prepared under section 39 or 39A.

member, in relation to the Australian Federal Police, includes a special member of the Australian Federal Police.

member of the crew, in relation to an vessel, aircraft or space object, includes the person in charge of the vessel, aircraft or space object.

national broadcaster has the same meaning as in the Broadcasting Services Act 1992.

national broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service, but does not include a digital radio multiplex transmitter licence.

newspaper means a newspaper that is in the English language and is published on at least 4 days in each week, but does not include a publication if less than 50% of its circulation is by way of sale.

non‑foundation digital radio multiplex transmitter licence means:

                     (a)  a category 1 digital radio multiplex transmitter licence; or

                     (b)  a category 2 digital radio multiplex transmitter licence;

that is not a foundation digital radio multiplex transmitter licence.

non‑standard device has the meaning given in subsection 9(2).

non‑standard transmitter has the meaning given in subsection 9(3).

open narrowcasting television service has the same meaning as in the Broadcasting Services Act 1992.

part, in relation to a spectrum licence, means:

                     (a)  a specified portion of the frequencies at which operation of radiocommunications devices is authorised under the licence; or

                     (b)  a specified portion of the area within which operation of radiocommunications devices is so authorised; or

                     (c)  a specified portion of the frequencies at which operation of radiocommunications devices is so authorised in a specified portion of the area within which operation of radiocommunications devices is so authorised.

period of emergency means a period declared to be a period of emergency under subsection 219(1).

permit means a permit issued under section 167.

pre‑acquisition declaration means a declaration published in the Gazette under clause 1 of Part 1 of the Schedule.

provisional international broadcasting certificate means a provisional international broadcasting certificate issued under section 131AF.

public or community service has the meaning given in section 10.

qualified company means a company that:

                     (a)  is formed in Australia; and

                     (b)  has a share capital.

qualified operator means a person who holds a certificate of proficiency.

radiocommunication has the meaning given in section 6.

radiocommunications device has the meaning given in subsection 7(1).

radiocommunications receiver has the meaning given in subsection 7(3).

radiocommunications transmitter has the meaning given in subsection 7(2).

radio emission has the meaning given in subsection 8(1).

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

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

receiver licence means an apparatus licence of the kind referred to in subsection 97(3).

reception, in relation to radio emission, includes interception.

Register, except in section 183, means the Register of Radiocommunications Licences established under section 143.

restrictive order means an order made under subsection 222(1).

resumption notice means a notice published in the Gazette under clause 3 of Part 1 of the Schedule.

SDTV digital mode has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

space object means an object (whether artificial or natural) that is beyond, has been beyond or is intended to go beyond the major portion of the Earth’s atmosphere, or any part of such an object, even if the part is intended to go only some of the way towards leaving the major portion of the Earth’s atmosphere.

Note:          Under section 10A, the ACMA may determine that a particular object is not a space object for the purposes of this Act.

spectrum means the range of frequencies within which radiocommunications are capable of being made.

spectrum access charge means a spectrum access charge fixed under section 294.

spectrum licence means a spectrum licence issued under Part 3.2.

spectrum licence tax means a tax imposed under the Radiocommunications (Spectrum Licence Tax) Act 1997.

spectrum plan means:

                     (a)  in relation to a time before the first plan prepared under section 30 comes into effect—the last plan prepared under section 18 of the Radiocommunications Act 1983; and

                     (b)  in relation to a time after the first plan prepared under section 30 comes into effect—a plan prepared under section 30.

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

standard means a standard made under section 162.

State officer means a person who, whether on a full‑time basis or a part‑time basis, and whether in a permanent capacity or otherwise:

                     (a)  is in the service or employment of a State or an authority of a State; or

                     (b)  holds or performs the duties of any office or position established by or under a law of a State;

and includes a member of the police force of a State.

subscription television broadcasting service has the same meaning as in the Broadcasting Services Act 1992.

supply includes supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase.

television program includes so much of a television program as consists only of sounds or images.

temporary community broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.

this Act includes the regulations.

transmitter has the meaning given in subsection 8(2).

transmitter licence means an apparatus licence of the kind referred to in subsection 97(2).

vessel means a vessel or boat of any description, and includes:

                     (a)  an air‑cushion vehicle; and

                     (b)  any floating structure.

6  Definition of radiocommunication

             (1)  For the purposes of this Act, radiocommunication is:

                     (a)  radio emission; or

                     (b)  reception of radio emission;

for the purpose of communicating information between persons and persons, persons and things or things and things.

             (2)  The reference in subsection (1) to communicating information includes communicating information between a part of a thing and:

                     (a)  another part of the same thing; or

                     (b)  the same part of that thing;

(as, for example, in the operation of a radar device).

Note:          Division 3 of Part 1.4 has the effect of extending the concept of radiocommunication in certain circumstances.

7  Definitions of radiocommunications device, radiocommunications transmitter and radiocommunications receiver

             (1)  For the purposes of this Act, a radiocommunications device is:

                     (a)  a radiocommunications transmitter other than a radiocommunications transmitter of a kind specified in a written determination made by the ACMA for the purposes of this paragraph; or

                     (b)  a radiocommunications receiver of a kind specified in a written determination made by the ACMA for the purposes of this paragraph.

             (2)  For the purposes of this Act, a radiocommunications transmitter is:

                     (a)  a transmitter designed or intended for use for the purpose of radiocommunication; or

                     (b)  anything (other than a line within the meaning of the Telecommunications Act 1997) designed or intended to be ancillary to, or associated with, such a transmitter for the purposes of that use; or

                     (c)  anything (whether artificial or natural) that is designed or intended for use for the purpose of radiocommunication by means of the reflection of radio emissions and that the ACMA determines in writing to be a radiocommunications transmitter for the purposes of this Act.

             (3)  For the purposes of this Act, a radiocommunications receiver is:

                     (a)  anything designed or intended for use for the purposes of radiocommunication by means of the reception of radio emission; or

                     (b)  anything (other than a line within the meaning of the Telecommunications Act 1997) designed or intended to be ancillary to, or associated with, such a thing for the purposes of that use; or

                     (c)  anything (whether artificial or natural) that is designed or intended for use for the purpose of radiocommunication by means of the reflection of radio emissions and that the ACMA determines in writing to be a radiocommunications receiver for the purposes of this Act.

             (4)  This Act does not preclude the same thing from being both a radiocommunications receiver and a radiocommunications transmitter, or any other kind of transmitter, for the purposes of this Act.

             (5)  A determination by the ACMA under this section is a legislative instrument.

8  Definitions of radio emission and transmitter

             (1)  For the purposes of this Act, a radio emission is any emission of electromagnetic energy of frequencies less than 420 terahertz without continuous artificial guide, whether or not any person intended the emission to occur.

             (2)  For the purposes of this Act, a transmitter is:

                     (a)  anything designed or intended for radio emission; or

                     (b)  any other thing, irrespective of its use or function or the purpose of its design, that is capable of radio emission.

9  Definitions of device, non‑standard device and non‑standard transmitter

             (1)  For the purposes of this Act, a device is:

                     (a)  a radiocommunications transmitter; or

                     (b)  any other transmitter; or

                     (c)  a radiocommunications receiver; or

                     (d)  any other thing any use or function of which is capable of being interfered with by radio emission.

             (2)  For the purposes of this Act, a non‑standard device is a device that:

                     (a)  if the device has not been altered or modified in a material respect after its manufacture or, if it has been imported, after its importation—does not comply with a standard that was applicable to it when it was manufactured or imported, as the case may be; or

                     (b)  if the device was so altered or modified—does not comply with a standard that was applicable to it when it was so altered or modified.

             (3)  For the purposes of this Act, a non‑standard transmitter is a transmitter that is a non‑standard device.

9A  Application of labels

             (1)  A reference in this Act to a label includes a reference to a statement.

             (2)  For the purposes of this Act, a label is taken to be applied to a thing if:

                     (a)  the label is affixed to the thing; or

                     (b)  the label is woven in, impressed on, worked into or annexed to the thing; or

                     (c)  the label is affixed to a container, covering, package, case, box or other thing in or with which the first‑mentioned thing is supplied; or

                     (d)  the label is affixed to, or incorporated in, an instruction or other document that accompanies the first‑mentioned thing.

9B  Digital mode

                   For the purposes of this Act, a service is transmitted in digital mode if the service is transmitted using a digital modulation technique.

9C  Digital community radio broadcasting representative company

             (1)  For the purposes of this Act, a company is the digital community radio broadcasting representative company for a particular designated BSA radio area if:

                     (a)  the company is a qualified company; and

                     (b)  the incumbent digital community radio broadcasting licensees for the designated BSA radio area have given the ACMA a joint written notice electing that this paragraph apply to the company; and

                     (c)  before the company was formed, the promoters of the company invited each incumbent digital community radio broadcasting licensee for the area to subscribe for shares in the company on the basis that:

                              (i)  the incumbent digital community radio broadcasting licensees who accepted the invitation would be issued with an equal number of shares; and

                             (ii)  no other persons would be entitled to subscribe for shares in the company; and

                     (d)  the invitations referred to in paragraph (c) were:

                              (i)  published on the ACMA’s website; and

                             (ii)  open for a period of at least 90 days beginning on or after the commencement of this section; and

                     (e)  there was no discrimination between subscribers for shares in the company in relation to the consideration payable for the issue of the shares concerned; and

                      (f)  the total amount of money payable as consideration for the issue of the shares in the company is not substantially in excess of the total amount that, as at the time the invitations referred to in paragraph (c) are published, would be required for the viable operation of the company; and

                     (g)  none of the recipients of an invitation referred to in paragraph (c) were subject to duress as to whether the invitation should be accepted; and

                     (h)  the company has a constitution; and

                      (i)  the company’s constitution provides that a person is not eligible to hold a share in the company unless the person is a digital community radio broadcasting licensee whose BSA licence area is the same as the designated BSA radio area; and

                      (j)  the company’s constitution provides that, if:

                              (i)  a digital community radio broadcasting licence is allocated to a person under the Broadcasting Services Act 1992 after the commencement of this section; and

                             (ii)  the BSA licence area of the digital community radio broadcasting licence is the same as the designated BSA radio area;

                            the company must:

                            (iii)  within 30 days after the allocation of the digital community radio broadcasting licence, offer to issue shares in the company to the holder of the digital community radio broadcasting licence, where the number of shares offered equals the number of shares already held by a particular digital community radio broadcasting licensee; and

                            (iv)  keep the offer open for at least 90 days; and

                             (v)  ensure that, if the offer is accepted, the amount of money payable as consideration for the issue of the shares is not substantially in excess of the amount that was payable by an incumbent digital community radio broadcasting licensee who subscribed for shares in the company in response to an invitation referred to in paragraph (c); and

                     (k)  the company’s constitution provides that the purposes of the company are:

                              (i)  holding shares in one or more companies that hold, have applied for, or propose to apply for, category 1 digital radio multiplex transmitter licences, or category 2 digital radio multiplex transmitter licences, for the designated BSA radio area; and

                             (ii)  exercising the powers conferred by this Act on a digital community radio broadcasting representative company; and

                            (iii)  carrying out activities incidental to the purposes mentioned in subparagraphs (i) and (ii); and

                      (l)  the company complies with such other conditions (if any) as are specified in the regulations.

Note:          See also section 8AD of the Broadcasting Services Act 1992, which deals with deemed radio broadcasting licence areas.

             (2)  For the purposes of the application of paragraph (1)(i) and subparagraph (1)(j)(iii) before the digital radio start‑up day for the designated BSA radio area, digital community radio broadcasting licensee includes an incumbent digital community radio broadcasting licensee.

             (3)  An election under paragraph (1)(b) given in relation to a particular designated BSA radio area has no effect if an election under that paragraph has been previously given in relation to that area.

             (4)  An election under paragraph (1)(b) is irrevocable.

             (5)  The promoters of a company may request the ACMA to publish on its website the invitations referred to in paragraph (1)(c).

             (6)  The ACMA must comply with a request under subsection (5) if the ACMA is satisfied that the request was made in good faith.

9D  Incumbent digital radio broadcasting licensees

Incumbent digital commercial radio broadcasting licensee

             (1)  For the purposes of this Act, if:

                     (a)  the licensee of a commercial radio broadcasting licence held the licence at the commencement of this section; and

                     (b)  the licence was not allocated under subsection 40(1) of the Broadcasting Services Act 1992;

the licensee is an incumbent digital commercial radio broadcasting licensee.

Incumbent digital community radio broadcasting licensee

             (2)  For the purposes of this Act, if the licensee of a designated community radio broadcasting licence held the licence at the commencement of this section, the licensee is an incumbent digital community radio broadcasting licensee.

10  Public or community services

             (1)  For the purposes of this Act, a public or community service is a service provided by a body or organisation of a kind specified by the Minister, by written instrument, to be bodies or organisations for the purposes of this section.

             (2)  Each such body or organisation must either be:

                     (a)  an authority of the Commonwealth, a State or a Territory; or

                     (b)  a body or organisation that:

                              (i)  is not carried on for the purpose of profit or gain to its members; and

                             (ii)  applies its profits (if any) or other income in achieving its objects; and

                            (iii)  does not provide for making any distribution, whether in money, property or otherwise, to its members.

             (3)  The instrument is a legislative instrument.

10A  ACMA determinations about space objects

                   Despite the definition of space object in section 5, the ACMA may, by legislative instrument, make a determination that a particular object is not a space object for the purposes of this Act.

Note:          Under subsection 33(3A) of the Acts Interpretation Act 1901, objects may be specified by reference to a particular class or classes of objects.

11  References to offences against this Act etc.

             (1)  A reference in this Act to an offence against this Act or to an offence against a provision of this Act includes a reference to an offence against section 6 of the Crimes Act 1914, or an ancillary offence (within the meaning of the Criminal Code), that relates to this Act or that provision, as the case requires.

          (1A)  A reference in this Act to an offence against this Act includes a reference to an offence against section 136.1 or 137.1 of the Criminal Code that relates to this Act.

             (2)  A reference in this Act to a conviction of an offence includes a reference to:

                     (a)  making an order under section 19B of the Crimes Act 1914 in relation to the offence; or

                     (b)  payment, under regulations made under paragraph 314(2)(d), of a penalty in relation to the offence.

Part 1.4Application of this Act

  

12  Outline of this Part

             (1)  This Part is about the scope of this Act’s operation, and the situations in which that operation is extended or restricted.

             (2)  Division 1 applies this Act to the Crown.

             (3)  Division 2 describes how questions of location affect the application of this Act.

             (4)  Division 3 brings certain activities within the concept of radiocommunication for the purposes of this Act.

             (5)  Division 4 is about the situations and activities that are exempt from the operation of this Act.

Division 1General

13  Crown to be bound

             (1)  Subject to subsection (2), this Act binds the Crown in all its capacities.

             (2)  Nothing in this Act renders the Crown liable to be prosecuted for an offence.

Division 2Provisions relating to location and similar matters

14  Operation of this Division

                   This Division has effect subject to Division 4.

15  Application to external Territories

                   This Act extends to all the external Territories.

16  Application outside Australia

             (1)  Except so far as the contrary intention appears, this Act applies outside Australia (whether or not in a foreign country), but only in relation to:

                     (a)  Australian citizens ordinarily resident in Australia, in respect of radio emissions intended to be received in Australia, other than:

                              (i)  radio emissions made by a genuine member of the crew of a foreign vessel, foreign aircraft or foreign space object in the course of his or her duties as such a member; or

                             (ii)  radio emissions made from a foreign country by a person in the performance of a duty imposed by the law of that country; and

                     (b)  members of the crew of Australian aircraft, Australian vessels and Australian space objects; and

                     (c)  Australian aircraft, Australian space objects and Australian vessels; and

                    (ca)  foreign space objects, in the circumstances specified in a determination by the ACMA; and

                     (d)  anything to which this Act extends because of section 17 or 17A.

             (2)  For the purposes of paragraph (1)(a), a radio emission that is intended to be retransmitted to Australia is taken to be intended to be received in Australia.

             (3)  Section 195 applies without limitation outside Australia (whether or not in a foreign country).

             (4)  A determination under paragraph (1)(ca) is a legislative instrument.

17  Offshore areas

             (1)  Subject to subsection (2), this Act applies in relation to the offshore areas in respect of the States and Territories as if references in this Act to Australia, when used in a geographical sense, included references to the offshore areas in respect of the States and Territories.

             (2)  The extended application given to this Act by subsection (1) extends only in relation to:

                     (a)  acts, matters and things directly or indirectly connected with exploration of, or exploitation of the resources of, the continental shelf of Australia or of an external Territory; and

                     (b)  acts done by or in relation to, and matters, circumstances and things affecting, or any person who is in offshore area for a reason directly or indirectly connected with such exploration or exploitation.

             (3)  In this section:

offshore area, in relation to a State or Territory, has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006.

17A  Western Greater Sunrise area

             (1)  Subject to subsection (2), this Act applies in relation to the Western Greater Sunrise area as if references in this Act to Australia, when used in a geographical sense, included references to the Western Greater Sunrise area.

             (2)  The extended application given to this Act by subsection (1) extends only in relation to:

                     (a)  acts, matters and things directly or indirectly connected with exploration of, or exploitation of the resources of, either or both of the Greater Sunrise unit reservoirs; and

                     (b)  acts done by or in relation to, and matters, circumstances and things affecting, any person who is in the Western Greater Sunrise area for a reason directly or indirectly connected with such exploration or exploitation.

             (3)  In this section:

Greater Sunrise unit reservoirs has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006.

Western Greater Sunrise area has the same meaning as in the Offshore Petroleum and Greenhouse Gas Storage Act 2006.

18  Application to the atmosphere etc.

                   Except so far as the contrary intention appears, references in this Act to Australia, a foreign country, a place or any waters include references to the space (including the atmosphere and outer space) above.

Division 3Provisions extending the concept of radiocommunication

19  Operation of this Division

             (1)  This Division:

                     (a)  only applies in relation to anything to which this Act extends under Division 2; and

                     (b)  has effect subject to Division 4.

             (2)  Subsections 20(1) and (2) and sections 21 and 22 each have effect without prejudice to the effect that this Act has apart from that subsection or section.

20  Radio transmissions for the purpose of measurement

             (1)  This Act applies in relation to:

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

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

                             (ii)  trade and commerce among the States; or

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

                            (iv)  any trading activity of a trading corporation, or any other activity of the corporation carried on for the purpose of its trading activities; or

                             (v)  any other activity carried on by a trading corporation; or

                            (vi)  any financial activity of a financial corporation, or any other activity of the corporation carried on for the purpose of its financial activities; or

                           (vii)  any other activity carried on by a financial corporation; or

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

                            (ix)  the making of astronomical or meteorological observations; or

                     (b)  a measurement transmission made by or on behalf of the Commonwealth, an authority or instrumentality of the Commonwealth, a foreign corporation or a body corporate incorporated in a Territory; or

                     (c)  a measurement transmission made in a Territory or a place outside Australia; or

                     (d)  any other measurement transmission;

in the same way as it applies in relation to radiocommunication.

Note:          Section 6 sets out the general meaning of radiocommunication.

             (2)  This Act applies in relation to:

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

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

                             (ii)  trade and commerce among the States; or

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

                            (iv)  any trading activity of a trading corporation, or any other activity of the corporation carried on for the purpose of its trading activities; or

                             (v)  any other activity carried on by a trading corporation; or

                            (vi)  any financial activity of a financial corporation, or any other activity of the corporation carried on for the purpose of its financial activities; or

                           (vii)  any other activity carried on by a financial corporation; or

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

                            (ix)  the making of astronomical or meteorological observations; or

                     (b)  a measurement transmitter used by or on behalf of the Commonwealth, an authority or instrumentality of the Commonwealth, a foreign corporation or a body corporate incorporated in a Territory; or

                     (c)  a measurement transmitter in a Territory or a place outside Australia; or

                     (d)  any other measurement transmitter;

in the same way as it applies in relation to a radiocommunications transmitter.

Note:          Subsection 7(2) sets out the general meaning of radiocommunications transmitter.

             (3)  This section does not apply with respect to:

                     (a)  State banking that does not extend beyond the limits of the State concerned; or

                     (b)  State insurance that does not so extend.

             (4)  In this section:

financial corporation means a financial corporation to which paragraph 51(xx) of the Constitution applies, and includes a body corporate formed within the limits of Australia that carries on as its sole or principal business the business of:

                     (a)  banking within the meaning of paragraph 51(xiii) of the Constitution; or

                     (b)  insurance within the meaning of paragraph 51(xiv) of the Constitution.

foreign corporation means a foreign corporation to which paragraph 51(xx) of the Constitution applies.

measurement transmission means radio emission for purposes connected with making a measurement by means of the propagation or other qualities of radio emission.

measurement transmitter means a transmitter designed or intended for measurement transmission.

trading corporation means a trading corporation to which paragraph 51(xx) of the Constitution applies.

21  Astronomical and meteorological observations

                   This Act applies to a radio emission in connection with making astronomical or meteorological observations in the same way as it applies to a radiocommunication.

22  Lighthouses etc.

                   This Act applies to a radio emission in connection with the operation of lighthouses, lightships, beacons and buoys in the same way as it applies to a radiocommunication.

Division 4Matters to which this Act does not apply

23  Foreign space objects, vessels and aircraft

             (1)  This Act does not apply to foreign space objects, except in accordance with a determination by the ACMA under paragraph 16(1)(ca).

             (2)  This Act does not apply to transmitters or radiocommunications receivers on board a foreign vessel that is travelling, or is in transit, (whether in or outside Australia) on a voyage:

                     (a)  from a point outside Australia to a port in Australia; or

                     (b)  from a port in Australia to a point outside Australia; or

                     (c)  from a point outside Australia to another point outside Australia.

             (3)  This Act does not apply to transmitters or radiocommunications receivers on board a foreign aircraft that is travelling, or is in transit, (whether in or outside Australia) on a voyage:

                     (a)  from a point outside Australia to an airport in Australia; or

                     (b)  from an airport in Australia to a point outside Australia; or

                     (c)  from a point outside Australia to another point outside Australia.

             (4)  Subsections (2) and (3) apply subject to the provisions of any agreement, treaty or convention between Australia and any other countries that makes provision in relation to radio emission.

             (5)  However, nothing in this section limits section 195 or Part 5.5.

24  Defence research and intelligence

             (1)  This Act does not apply to anything done or omitted to be done by a member of the Defence Force, or by an officer of the Defence Department, in the performance of his or her functions or duties as such a member or officer in relation to the operation of an organisation:

                     (a)  that is part of the Defence Force or part of the Defence Department; and

                     (b)  the purpose of which relates to:

                              (i)  research for purposes connected with defence; or

                             (ii)  intelligence.

             (2)  This Act does not apply in relation to anything done or omitted to be done by or on behalf of:

                     (a)  the Australian Secret Intelligence Service; or

                     (b)  the Australian Security Intelligence Organisation.

25  Special defence undertakings

                   This Act does not apply to anything done or omitted to be done by a person performing a function or duty in relation to the operation of a facility that is:

                     (a)  jointly operated by the Commonwealth and a foreign country; and

                     (b)  a special defence undertaking for the purposes of the Defence (Special Undertakings) Act 1952.

26  Additional exemption for defence matters

             (1)  Subject to subsection (2), Parts 3.1, 4.1 and 4.2 do not apply to anything done or omitted to be done by a member of the Defence Force, or by an officer of the Defence Department, if:

                     (a)  the act or omission takes place in the performance of one of his or her functions or duties as such a member or officer; and

                     (b)  the function or duty concerned is, under the regulations, taken for the purposes of this subsection to be a function or duty that relates to:

                              (i)  military command and control; or

                             (ii)  intelligence; or

                            (iii)  weapons systems.

             (2)  The regulations may provide for the application, in specified circumstances, of all or any of Parts 3.1, 4.1 or 4.2, or any of the provisions of those Parts, to a member of the Defence Force, or to an officer of the Defence Department, in the performance of one of his or her functions or duties as mentioned in subsection (1).

27  Exemption for defence, law enforcement and emergency personnel

             (1)  This section applies to a person performing a function or duty in relation to:

                     (a)  the defence, security or international relations of:

                              (i)  Australia; or

                             (ii)  a foreign country whose naval, military or air force is acting in co‑operation with the Defence Force of Australia; or

                     (b)  the Australian Federal Police or the police force of a State or Territory; or

                  (baa)  the performance of the functions of the Integrity Commissioner (within the meaning of the Law Enforcement Integrity Commissioner Act 2006); or

                   (ba)  one of the following bodies or offices:

                              (i)  the Independent Commission Against Corruption of New South Wales;

                             (ii)  the Corruption and Crime Commission of Western Australia;

                            (iii)  the Independent Commissioner Against Corruption of South Australia; or

                   (bb)  one of the following bodies:

                              (i)  the New South Wales Crime Commission;

                             (ii)  the Crime and Corruption Commission of Queensland; or

                   (bc)  the Australian Crime Commission; or

                   (bd)  the New South Wales Police Integrity Commission; or

                   (be)  a body that:

                              (i)  performs functions related to the investigation, prevention or prosecution of serious crime, or of corruption (whether or not the body also performs other functions); and

                             (ii)  is covered by a written determination made by the ACMA for the purposes of this paragraph; or

                     (c)  a fire‑fighting, civil defence or rescue organisation; or

                     (d)  an ambulance service; or

                     (e)  the Royal Flying Doctor Service; or

                      (f)  any other organisation whose sole or principal purpose involves securing the safety of persons during an emergency.

             (2)  The ACMA may determine in writing that acts or omissions by members of a class of persons to whom this section applies are exempt from either or both of the following:

                     (a)  all or any of Parts 3.1, 4.1 and 4.2;

                     (b)  specified provisions of those Parts.

The exemption may be expressed to apply generally or in specified circumstances.

             (3)  A determination under paragraph (1)(be) or subsection (2) is a legislative instrument.

             (4)  For the purposes of subparagraph (1)(be)(i), serious crime is conduct that, if engaged in within, or in connection with, Australia, would constitute an offence against the law of the Commonwealth, a State or a Territory punishable by imprisonment for a period exceeding 12 months.

28  Use of devices by the ACMA

                   Parts 3.1, 4.1 and 4.2 do not apply to anything done by the ACMA in connection with the use of a device in performing its functions or exercising its powers under this Act.

Chapter 2Radio frequency planning

  

  

29  Outline of this Chapter

             (1)  This Chapter provides for the preparation of plans that will govern the allocation of the spectrum under the licensing systems provided for in Chapter 3.

             (2)  Part 2.1 is about preparing:

                     (a)  a spectrum plan that covers so much of the spectrum as is relevant to regulation of radiocommunications under this Act; and

                     (b)  frequency band plans that cover particular parts of the spectrum in more detail.

             (3)  Part 2.2 is about the additional plans necessary to enable selected parts of the spectrum to be allocated under the spectrum licensing system, namely:

                     (a)  conversion plans that govern conversion into spectrum licences of apparatus licences that apply in the parts of the spectrum in question; and

                     (b)  marketing plans that govern allocation under spectrum licences of so much of the parts of the spectrum in question as have not been allocated under apparatus licences; and

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

             (4)  Part 2.3 is about preparing digital radio channel plans relating to digital radio multiplex transmitter licences.

Part 2.1Spectrum plans and frequency band plans

  

30  Spectrum plans

             (1)  The ACMA may, by legislative instrument, prepare a spectrum plan.

Note:          For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

             (2)  A spectrum plan must:

                     (a)  divide into such number of frequency bands as the ACMA thinks appropriate so much of the spectrum as the ACMA thinks necessary for the purpose of regulating radiocommunications under this Act; and

                     (b)  designate one or more bands to be used primarily for the general purposes of defence; and

                     (c)  specify the general purpose or purposes for which each other band may be used.

             (3)  In this section:

used includes:

                     (a)  reserved for future use; and

                     (b)  reserved for the prevention or control of interference to radiocommunications.

31  Planning of broadcasting services bands

             (1)  The Minister may, after consulting the ACMA, and in accordance with the spectrum plan, by written instrument:

                     (a)  designate a part of the spectrum as being primarily for broadcasting purposes; and

                     (b)  refer it to the ACMA for planning under Part 3 of the Broadcasting Services Act 1992.

       (1AA)  The Minister may, by written instrument, vary a subsection (1) designation so as to enlarge or reduce the part of the spectrum covered by the designation.

          (1A)  The Minister may, after consulting the ACMA, and in accordance with the spectrum plan, by written instrument:

                     (a)  designate a part of the spectrum as being partly for the purpose of digital radio broadcasting services; and

                     (b)  refer that part of the spectrum to the ACMA for planning under Part 3 of the Broadcasting Services Act 1992.

          (1B)  Subsection (1A) does not limit subsection (1).

       (1BA)  The Minister may, by written instrument, vary a subsection (1A) designation so as to enlarge or reduce the part of the spectrum covered by the designation.

          (1C)  The Minister may, by written instrument, determine that a designation under subsection (1A) ceases to be in force at a specified time.

          (1D)  The Minister may, by written instrument, determine that a designation under subsection (1A) has effect only in relation to one or more specified areas of Australia.

             (2)  If a subsection (1) or (1A) designation is in force in relation to a particular part of the spectrum, the ACMA may make a written determination that licences, or specified kinds of licences, can be issued in specified circumstances in relation to that part of the spectrum, or in relation to a specified part or parts of that part of the spectrum.

             (3)  In making or varying a subsection (2) determination, the ACMA must:

                     (a)  promote the objects, and have regard to the matters, described in section 23 of the Broadcasting Services Act 1992; and

                     (b)  promote the object of this Act, to the extent this is not inconsistent with paragraph (a).

This subsection has effect subject to subsection (4).

             (4)  A subsection (2) determination (including as varied) must not be inconsistent with the spectrum plan.

             (5)  Subject to subsections (3) and (4), the ACMA may, by written instrument, vary a subsection (2) determination.

             (6)  The ACMA may, by written instrument, revoke a subsection (2) determination.

             (7)  An instrument under subsection (1), (1AA), (1A), (1BA), (1C), (1D), (5) or (6) is not a legislative instrument.

             (8)  A determination under subsection (2) is not a legislative instrument.

32  Frequency band plans

             (1)  The ACMA may, by legislative instrument, prepare frequency band plans, each relating to one or more frequency bands.

Note:          For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

             (3)  A frequency band plan must not be inconsistent with the spectrum plan.

             (4)  A frequency band plan:

                     (a)  must make provision in relation to the purpose or purposes for which the band or bands may be used; and

                     (b)  without limiting paragraph (a), may provide for:

                              (i)  the one or more purposes for which any part of a band (including any particular frequency or frequency channel) may be used; and

                             (ii)  parts of the spectrum to be reserved for provision of public or community services.

             (5)  A frequency band plan:

                     (a)  may be of general application or may be limited as provided in the plan; and

                     (b)  without limiting paragraph (a), may apply:

                              (i)  with respect to a specified area; and

                             (ii)  with respect to a specified period.

             (6)  In this section:

used includes:

                     (a)  reserved for future use; and

                     (b)  reserved for the prevention or control of interference to radiocommunications.

33  Publication etc. of plans

             (1)  Before preparing a spectrum plan or a frequency band plan, the ACMA must, by notice published on the ACMA’s website:

                     (a)  state that a draft of the plan is available for public comment; and

                     (b)  set out the draft plan; and

                     (c)  invite interested parties to make representations about the draft plan on or before the day specified in the notice.

             (2)  The day specified under paragraph (1)(c) must be at least one month later than the day on which the notice is published.

             (3)  A person may, not later than the day specified under paragraph (1)(c), make representations to the ACMA about the draft plan.

             (4)  The ACMA:

                     (a)  must give due consideration to any representations so made; and

                     (b)  may, having considered the representations, alter the draft plan.

             (5)  The requirements of this section do not apply to the draft plan as altered under paragraph (4)(b).

             (6)  This section does not apply to the preparation of a plan if the ACMA is satisfied that the preparation of the plan is a matter of urgency.

Part 2.2Conversion plans and marketing plans

  

36  Designation of parts of the spectrum for spectrum licences

             (1)  The Minister may, after consultation with the ACMA, give to the ACMA a written notice designating a specified part of the spectrum to be allocated by issuing spectrum licences.

             (2)  The notice is to be expressed to apply with respect to one or more specified areas.

             (3)  The ACMA may, at the Minister’s request or on its own initiative, make recommendations to the Minister about notices that should be given.

             (4)  Before making a recommendation, the ACMA must give members of the public reasonable opportunity to make representations to the ACMA about the recommendation it should make.

             (5)  The Minister must not give a notice that relates wholly or partly to a part of the spectrum referred to the ACMA under subsection 31(1) or (1A), unless the part of the spectrum that the notice relates to is covered by a determination under subsection 31(2).

             (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 ACMA on receiving the notice; and

                      (f)  any marketing plan prepared by the ACMA 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 ACMA 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 ACMA issuing the spectrum licence.

37  Preparation or variation of frequency band plans

                   The ACMA may, before preparing a conversion plan or a marketing plan under this Part, prepare a frequency band plan under section 32, or vary a frequency band plan in accordance with subsection 33(3) of the Acts Interpretation Act 1901, in order to assist it in preparing the conversion plan or marketing plan.

38  Conversion plans

             (1)  On receiving a notice designating a specified part of the spectrum to be allocated by issuing spectrum licences, the ACMA must, by legislative instrument, prepare a conversion plan that sets out the procedures and timetable for issuing spectrum licences to replace existing apparatus licences that authorise operation of radiocommunications devices:

                     (a)  at frequencies within that part of the spectrum; and

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

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

             (3)  The conversion plan may contain such other additional matters as the ACMA thinks fit.

             (4)  The conversion plan must not be inconsistent with:

                     (a)  the spectrum plan; or

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

             (5)  This section does not apply if there are no apparatus licences to which such a conversion plan would apply.

39  Marketing plans—unencumbered spectrum

             (1)  On receiving a notice designating a part of the spectrum to be allocated by issuing spectrum licences, the ACMA must also, by legislative instrument, prepare a marketing plan for issuing spectrum licences that authorise the operation of radiocommunications devices:

                     (a)  at frequencies, within that part of the spectrum, that will not be used under spectrum licences issued in accordance with the conversion plan; and

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

             (2)  The marketing plan is to apply to:

                     (a)  spectrum licences that might be issued that do not replace apparatus licences; and

                     (b)  spectrum licences that are issued under section 58.

             (3)  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 plan applies.

             (4)  Without limiting the matters that the marketing plan may contain, it 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 amongst 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.

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

             (6)  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 of the spectrum to which the marketing plan relates.

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 ACMA must, by legislative 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.

41  Delays in preparing plans

             (1)  If the ACMA thinks that preparation of a conversion plan or a marketing plan may be unduly delayed because of difficulties in preparing the plan so far as it relates to some of the frequencies within the part of the spectrum in respect of which the plan is to be prepared, the ACMA may:

                     (a)  decide that, in order not to delay the preparation of a plan in relation to frequencies for which the difficulties do not apply, the task of preparing the plan should be divided into one of preparing more than one plan; and

                     (b)  prepare those plans at different times.

             (2)  Each of the plans so prepared is taken to have been prepared under section 38, 39 or 39A, as the case requires, and this Part applies to the preparation of each plan accordingly.

42  Variation of plans

             (1)  The ACMA may, at any time, by legislative instrument, vary a conversion plan or a marketing plan.

             (2)  This Part applies in relation to a variation of a conversion plan or a marketing plan in the same way that it applies in relation to the preparation of the plan.

44  Expressions of interest in spectrum licences

                   This Part does not prevent the ACMA, prior to preparing a conversion plan or a marketing plan, from seeking from members of the public, in any way the ACMA thinks appropriate, expressions of interest in being issued with spectrum licences in accordance with such a plan.

Part 2.3Digital radio channel plans

  

44A  Preparation of digital radio channel plans

             (1)  Before issuing the first digital radio multiplex transmitter licence for a designated BSA radio area, the ACMA must, by legislative instrument, prepare a plan that:

                     (a)  allots a frequency channel or channels in relation to the designated BSA radio area for use by digital radio multiplex transmitter licensees, where each allotted frequency channel has a bandwidth of at least 1.536 MHz; and

                     (b)  reserves a frequency channel of at least 1.536 MHz bandwidth for a category 3 digital radio multiplex transmitter licence for the designated BSA radio area to be issued in accordance with subsection 102E(2); and

                     (c)  determines which of the following types of licences, or which combination of the following types of licences, are to be issued for the designated BSA radio area:

                              (i)  category 1 digital radio multiplex transmitter licence;

                             (ii)  category 2 digital radio multiplex transmitter licence; and

                     (d)  if a particular type of licence mentioned in paragraph (c) is to be issued for the designated BSA radio area—determines whether:

                              (i)  a single licence of that type is to be issued for the designated BSA radio area; or

                             (ii)  2 or more licences of that type are to be issued for the designated BSA radio area; and

                     (e)  determines technical specifications of multiplex transmitters operated under digital radio multiplex transmitter licences for the designated BSA radio area.

             (2)  The plan must be consistent with:

                     (a)  the spectrum plan; and

                     (b)  any relevant frequency band plans; and

                     (d)  any relevant licence area plans prepared under section 26 of the Broadcasting Services Act 1992.

             (3)  A plan under subsection (1) is to be known as the digital radio channel plan for the designated BSA radio area.

             (4)  A copy of a digital radio channel plan is to be made available on the ACMA’s website.

Consultation

             (5)  Before preparing a plan under subsection (1), the ACMA must:

                     (a)  publish a draft of the plan on the ACMA’s website; and

                     (b)  invite members of the public to make submissions to the ACMA about the draft plan within a specified period of at least 30 days; and

                     (c)  consider any submissions the ACMA receives from members of the public within that period.

Variation of digital radio plans

             (6)  The ACMA may, by legislative instrument, vary a digital radio channel plan.

             (7)  Before varying a digital radio channel plan under subsection (6), the ACMA must:

                     (a)  publish a draft of the variation on the ACMA’s website; and

                     (b)  invite members of the public to make submissions to the ACMA about the variation within a specified period of at least 30 days; and

                     (c)  consider any submissions the ACMA receives from members of the public within that period.

ACMA must have regard to authorised digital radio broadcasting services

             (8)  In preparing a plan under subsection (1) or varying a plan under subsection (6), the ACMA must have regard to:

                     (a)  the digital commercial radio broadcasting services that are, or will be, authorised by commercial radio broadcasting licences for the designated BSA radio area; and

                     (b)  the digital community radio broadcasting services that are, or will be, authorised by community radio broadcasting licences for the designated BSA radio area; and

                     (c)  the digital national radio broadcasting services that are, or will be, provided by national broadcasters in the designated BSA radio area.

             (9)  Subsection (8) does not limit the matters to which the ACMA may have regard.

Frequency channels to be in the same frequency band

           (10)  The ACMA must, as far as practicable, ensure that all the frequency channels allotted or reserved by a digital radio channel plan for a particular designated BSA radio area are in the same frequency band.

Technical specifications not to discriminate between digital radio multiplex transmitter licensees

           (11)  The ACMA must, as far as practicable, ensure that a digital radio channel plan for a particular designated BSA radio area does not discriminate between digital radio multiplex transmitter licensees in relation to the technical specifications of multiplex transmitters.

Chapter 3Licensing of radiocommunications

  

  

45  Outline of this Chapter

             (1)  This Chapter provides for the 3 systems of licences that apply to radiocommunications and for registration of licences.

             (2)  Part 3.1 prohibits unlicensed radiocommunications, except in emergency situations, and allows for civil proceedings to be taken in some circumstances.

             (3)  Part 3.2 provides for spectrum licences, under which licensees may use parts of the spectrum.

             (4)  Part 3.3 provides for apparatus licences, under which licensees may operate the radiocommunications devices to which the licences relate.

             (5)  Part 3.4 provides for class licences, under which any person may operate radiocommunications devices that come within the terms of the licences.

             (6)  Part 3.5 provides for registration of these licences in a Register of Radiocommunications Licences.

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

             (7)  The following diagram shows how this Chapter applies to a particular operation of a radiocommunications device.

 

Part 3.1Unlicensed radiocommunications

Division 1Offences

46  Unlicensed operation of radiocommunications devices

             (1)  Subject to section 49, a person must not operate a radiocommunications device otherwise than as authorised by:

                     (a)  a spectrum licence; or

                     (b)  an apparatus licence; or

                     (c)  a class licence.

Penalty: 

                     (a)  if the radiocommunications device is a radiocommunications transmitter:

                              (i)  if the offender is an individual—imprisonment for 2 years; or

                             (ii)  otherwise—1,500 penalty units; or

                     (b)  if the radiocommunications device is not a radiocommunications transmitter—20 penalty units.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

47  Unlawful possession of radiocommunications devices

             (1)  Subject to section 49, a person must not have a radiocommunications device in his or her possession for the purpose of operating the device otherwise than as authorised by:

                     (a)  a spectrum licence; or

                     (b)  an apparatus licence; or

                     (c)  a class licence.

Penalty: 

                     (a)  if the radiocommunications device is a radiocommunications transmitter:

                              (i)  if the offender is an individual—imprisonment for 2 years; or

                             (ii)  otherwise—1,500 penalty units; or

                     (b)  if the radiocommunications device is not a radiocommunications transmitter—20 penalty units.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

48  Additional provisions about possession of radiocommunications devices

             (1)  Without limiting section 47, a person is taken, for the purposes of that section, to have a radiocommunications device in his or her possession for the purpose of operation if it is in his or her possession, otherwise than for the purpose of supply to another person, and can be operated merely by doing one or more of the following:

                     (a)  connecting the device to an electric power supply by means of an electric plug or other electrical connection;

                     (b)  connecting a microphone to the device by inserting a microphone plug into the device;

                     (c)  switching on the device;

                     (d)  switching on any other equipment relevant to the device’s operation;

                     (e)  adjusting settings by manipulating the device’s external switches, dials or other controls;

                      (f)  connecting the device to an antenna.

             (2)  Subsection (1) only applies in the absence of any evidence to the contrary.

             (3)  A reference in this Division to a person having a radiocommunications device in his or her possession includes a reference to the person having it under control in any place whatever, whether for the use or benefit of that person or another person, and although another person has the actual possession or custody of it.

49  Emergency operation etc. of radiocommunications devices

             (1)  A person does not contravene section 46 or 47 by operating a radiocommunications device, or having a radiocommunications device in his or her possession, in the reasonable belief that the operation or possession was necessary for the purpose of:

                     (a)  securing the safety of a vessel, aircraft or space object that was in danger; or

                     (b)  dealing with an emergency involving a serious threat to the environment; or

                     (c)  dealing with an emergency involving risk of death of, or injury to, persons; or

                     (d)  dealing with an emergency involving risk of substantial loss of, or substantial damage to, property.

             (2)  In proceedings for an offence against section 46 or 47, the burden of proving any of the matters referred to in subsection (1) lies on the defendant.

             (3)  Nothing in this section limits the scope of the expression “reasonable excuse” in section 46 or 47.

Division 2Civil proceedings

50  Civil proceedings

             (1)  If a person (the defendant):

                     (a)  operates a radiocommunications device in a way that is not in accordance with any licence; and

                     (b)  that operation causes interference to radiocommunications carried on by another person (the plaintiff) under a spectrum licence;

the plaintiff may apply to the Federal Court for relief.

             (2)  The court may grant all or any of the following forms of relief:

                     (a)  an injunction restraining the defendant from causing such interference, from causing interference of a similar kind or from causing or permitting others to cause interference of the same or a similar kind;

                     (b)  an order directing the defendant to do a specified act for the purpose of:

                              (i)  placing the plaintiff as nearly as practicable in the position in which he or she would have been but for the interference; or

                             (ii)  otherwise mitigating detriment to the plaintiff arising out of the interference;

                     (c)  damages against the defendant in respect of loss suffered by the plaintiff as a result of the interference, including loss of any benefit that the plaintiff might reasonably have been expected to obtain but for the interference;

                     (d)  such other relief as the court thinks just.

Part 3.2Spectrum licences

  

51  Outline of this Part

             (1)  This Part is about spectrum licences, under which licensees are authorised to use parts of the spectrum.

             (2)  Division 1 is about issuing spectrum licences, in particular:

                     (a)  converting apparatus licences into spectrum licences under conversion plans and (in some cases) marketing plans (Subdivision A); and

                     (b)  issuing spectrum licences under marketing plans (Subdivision B); and

                     (c)  what spectrum licences will contain (Subdivision C); and

                     (d)  how section 50 and related provisions of the Competition and Consumer Act 2010 apply to the issue of spectrum licences (Subdivision D).

             (3)  Division 2 is about varying spectrum licences.

             (4)  Division 3 is about suspending and cancelling spectrum licences.

             (5)  Division 4 is about re‑issuing spectrum licences.

             (6)  Division 5 is about trading spectrum licences.

             (7)  Division 6 enables the ACMA to resume spectrum licences:

                     (a)  by agreement with the licensee (Subdivision A); or

                     (b)  by the compulsory process set out in the Schedule (Subdivision B).

Division 1Issuing spectrum licences

Subdivision AConverting apparatus licences into spectrum licences

52  Application of this Subdivision

             (1)  This Subdivision applies to an apparatus licence if the apparatus licence authorises the operation of a radiocommunications device:

                     (a)  at frequencies within a part of the spectrum to which a conversion plan applies; and

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

             (2)  The holder of such an apparatus licence is referred to in this Subdivision as the licensee.

53  Preparation of draft spectrum licences

             (1)  As soon as practicable after preparing a conversion plan, the ACMA must, in respect of each apparatus licence to which this Subdivision applies as a result of the conversion plan, prepare a draft of a spectrum licence to replace the apparatus licence.

             (2)  The draft spectrum licence must, so far as is practicable, authorise the operation of radiocommunications devices to the same extent as, or to a greater extent than, they are authorised under the apparatus licence to be replaced.

54  Notification of draft spectrum licences

             (1)  The ACMA must give to the licensee:

                     (a)  a copy of the draft spectrum licence; and

                     (b)  a notice inviting the licensee to make representations about the draft spectrum licence on or before the day specified in the notice.

             (2)  The day specified in the notice must be at least one month later than the day on which the notice is given to the licensee.

55  Representations about draft spectrum licences

             (1)  The licensee may, on or before the day specified in the notice, make representations to the ACMA about the proposed spectrum licence.

             (2)  The ACMA:

                     (a)  must give due consideration to any representations so made; and

                     (b)  may, having considered the representations, alter the draft spectrum licence.

56  Offer of spectrum licences

             (1)  The ACMA must, as soon as practicable after the day specified in the notice, give to the licensee a written offer to issue to the licensee a spectrum licence to replace the licensee’s apparatus licence.

             (2)  The offer must:

                     (a)  identify the spectrum licence that the ACMA proposes to issue; and

                     (b)  specify the amount of spectrum access charge that the licensee must pay to the Commonwealth for the spectrum licence; and

                     (c)  specify the day on which the offer will close.

Note:          Spectrum access charges are determined under Part 5.7.

             (3)  The day specified in the offer must be at least one month later than the day on which the offer is given to the licensee.

57  Issuing of spectrum licences on acceptance of offers

             (1)  The ACMA must issue the spectrum licence to the licensee if, on or before the day specified in the offer, the licensee gives the ACMA a written notice:

                     (a)  accepting the offer; and

                     (b)  agreeing to pay the amount of spectrum access charge specified in the offer.

Note:          Spectrum access charges are determined under Part 5.7.

             (2)  The spectrum licence comes into force on the day specified in the licence.

             (3)  Immediately before it comes into force, the apparatus licence that it is to replace ceases to be in force.

58  Failures to accept offers

             (1)  If the licensee:

                     (a)  notifies the ACMA, on or before the day specified in the offer, that the licensee does not accept the offer; or

                     (b)  fails to give the ACMA notice under section 57 before that day;

the ACMA may allocate the spectrum licence in the manner provided for in sections 60 to 63, and issue the spectrum licence accordingly.

          (1A)  Subsection (1) has effect subject to section 577J of the Telecommunications Act 1997.

             (2)  The spectrum licence comes into force on the day specified in the licence.

             (3)  Immediately before it comes into force, the apparatus licence that it is to replace ceases to be in force.

             (4)  If the licensee had paid an apparatus licence tax for the apparatus licence, the ACMA must refund to the licensee such portion of the tax as corresponds to the part of the period of the apparatus licence that had, immediately before the licence ceased to be in force, not elapsed.

59  Compliance with plans

             (1)  The ACMA must ensure that, in issuing a spectrum licence under this Subdivision, the ACMA had complied with any requirements relating to:

                     (a)  issuing the licence; or

                     (b)  the procedures to be followed prior to its issue;

that are imposed by the relevant conversion plan.

             (2)  In addition to subsection (1), if the spectrum licence is issued under section 58, the ACMA must also ensure that it has complied with any requirements relating to:

                     (a)  issuing the licence; or

                     (b)  the procedures to be followed prior to its issue;

that are imposed by the relevant marketing plan.

             (3)  Failure to comply with this section does not affect the validity of a spectrum licence.

Subdivision BIssuing spectrum licences

60  Procedures for allocating spectrum licences

             (1)  The ACMA must determine, in writing, the procedures to be applied in allocating spectrum licences under this Subdivision:

                     (a)  by auction; or

                     (b)  by tender; or

                     (c)  by allocation for a pre‑determined price or a negotiated price.

             (2)  The procedures for allocation by auction may, for example, deal with any of the following matters:

                     (a)  the types of auction;

                     (b)  advertising of auctions;

                     (c)  entry fees for prospective bidders;

                     (d)  reserve prices (if any);

                     (e)  deposits (if any) payable by successful bidders;

                      (f)  methods of payment for licences.

             (3)  The procedures for allocation by tender may, for example, deal with any of the following matters:

                     (a)  the types of tender;

                     (b)  advertising of tenders;

                     (c)  entry fees for prospective tenderers;

                     (d)  reserve prices (if any);

                     (e)  the method for resolving which of 2 or more equal tenders is to be successful;

                      (f)  deposits (if any) payable by successful tenderers;

                     (g)  methods of payment for licences.

             (4)  The procedures for allocation for a pre‑determined or negotiated price may, for example, deal with any of the following matters:

                     (a)  the way in which prices are to be determined or negotiated;

                     (b)  advertising of proposed allocations;

                     (c)  methods of payment for licences.

             (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).

          (6A)  Procedures that impose limits as mentioned in subsection (5) may impose limits of nil in relation to specified persons or to the members of specified groups of persons.

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

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

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

           (10)  The Minister may give written directions to the ACMA 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 ACMA 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 ACMA must consult the ACCC about whether the procedures should include a requirement mentioned in subsection (7) and, if so, the nature of the requirement.

           (15)  This section has effect subject to section 577J of the Telecommunications Act 1997.

61  Preparation of draft spectrum licences

             (1)  After a marketing plan has been prepared, the ACMA may prepare drafts of spectrum licences that are to be allocated in accordance with the marketing plan.

             (2)  Drafts of spectrum licences so prepared need not be complete, but each must contain a draft of its core conditions.

62  Issue of spectrum licences

             (1)  The ACMA may allocate such a spectrum licence in accordance with the procedures determined under section 60 but not otherwise.

             (2)  The ACMA must issue the spectrum licence to the person to whom it is allocated if the person:

                     (a)  pays to the ACMA the spectrum access charge for issuing the licence; or

                     (b)  reaches an agreement with the ACMA for the payment of that spectrum access charge.

Note:          Spectrum access charges are determined under Part 5.7.

             (3)  If the issue of the licence is covered by section 153L (which deals with re‑allocation of spectrum), the ACMA 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.

             (4)  This section has effect subject to section 577J of the Telecommunications Act 1997.

63  Compliance with marketing plans

             (1)  The ACMA must ensure that, in issuing a spectrum licence under this Subdivision, the ACMA has complied with any requirements relating to:

                     (a)  issuing the licence; or

                     (b)  the procedures to be followed prior to its issue;

that are imposed by the relevant marketing plan.

             (2)  Failure to comply with this section does not affect the validity of a spectrum licence.

Subdivision CContents of spectrum licences

64  Authorisation to use part of the spectrum

             (1)  A spectrum licence authorises:

                     (a)  the person specified in the licence as the licensee; and

                     (b)  subject to section 68, any person authorised by that person;

to operate a radiocommunications device in accordance with the licence.

             (2)  Operation of a radiocommunications device is not authorised by the spectrum licence if it is not in accordance with the conditions of the licence.

65  Duration of spectrum licences

             (1)  A spectrum licence comes into force on the day on which it is issued or on such later day as is specified in the licence for the purpose.

             (2)  Subject to Division 3, a spectrum licence remains in force for the period specified in the licence.

             (3)  The licence may specify any period up to 15 years.

66  Core conditions of spectrum licences

             (1)  A spectrum licence must include the following core conditions:

                     (a)  a condition specifying the part or parts of the spectrum in which operation of radiocommunications devices is authorised under the licence;

                     (b)  a condition specifying the maximum permitted level of radio emission, in parts of the spectrum outside such a part, that may be caused by operation of radiocommunications devices under the licence;

                     (c)  a condition specifying the area within which operation of radiocommunications devices is authorised under the licence;

                     (d)  a condition specifying the maximum permitted level of radio emission, outside that area, that may be caused by operation of radiocommunications devices under the licence.

             (2)  The area specified in the condition referred to in paragraph (1)(c) may be the whole of Australia.

             (3)  A spectrum licence may also include a core condition specifying the periods during which operation of radiocommunications devices is authorised under the licence.

             (4)  Without limiting subsection (3), the periods specified may include times during each day or times during particular days of each week.

             (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).

67  Conditions about payment of charges

A spectrum licence must include a condition that the licensee meet all obligations (if any) of the licensee to pay:

                     (a)  charges fixed by determinations made under section 60 of the Australian Communications and Media Authority Act 2005; and

                     (b)  spectrum access charges fixed by determinations made under section 294; and

                     (c)  amounts of spectrum licence tax.

68  Conditions about third party use

             (1)  Except as provided by this section, the licensee of a spectrum licence may authorise other persons to operate radiocommunications devices under the licence.

             (2)  A spectrum licence:

                     (a)  must include a condition that any operation of a radiocommunications device under the licence by a person other than the licensee must comply with any rules made under subsection (3); and

                     (b)  must include a condition that the licensee must notify any persons whom he or she authorises to operate radiocommunications devices under the licence of their obligations under this Act, in particular:

                              (i)  if applicable, the registration requirements under Part 3.5 for operation of radiocommunications devices under the licence; and

                             (ii)  any rules made under subsection (3).

             (3)  The ACMA may, by legislative instrument, make rules about the operation of radiocommunications devices under spectrum licences by persons other than licensees, including rules about the way in which licensees may authorise those persons to operate radiocommunications devices under spectrum licences.

             (5)  This section has effect subject to section 577K of the Telecommunications Act 1997.

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 Competition and Consumer Act 2010, 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.

69  Conditions about registration of radiocommunications transmitters

             (1)  A spectrum licence must include a condition that radiocommunications transmitters not be operated under the licence unless the requirements of the ACMA under Part 3.5 for registration of the transmitter under that Part have been met.

             (2)  The condition may exempt radiocommunications transmitters of particular kinds from meeting those requirements.

69A  Conditions about residency etc.

             (1)  A spectrum licence must include a condition that, at all times when the licensee derives income, profits or gains from operating radiocommunications devices under the licence or from authorising others to do so, either:

                     (a)  the licensee is to be an Australian resident (see subsection (3)); or

                     (b)  the income, profits or gains are to be attributable to a permanent establishment (see subsection (3)) in Australia through which the licensee carries on business.

             (2)  A spectrum licence must include a condition that, at all times when an authorised person (see subsection (3)) derives income, profits or gains from allowing third parties to operate radiocommunications devices under the licence, either:

                     (a)  the authorised person is to be an Australian resident; or

                     (b)  the income, profits or gains are to be attributable to a permanent establishment in Australia through which the authorised person carries on business.

             (3)  In this section:

Australian resident has the same meaning as in the Income Tax Assessment Act 1997.

authorised person means a person authorised under section 68 by the licensee of a spectrum licence to operate radiocommunications devices under the licence.

permanent establishment has the same meaning as in:

                     (a)  if the licensee or authorised person (as appropriate) is a resident of a country or other jurisdiction with which Australia has an agreement, within the meaning of the International Tax Agreements Act 1953—that agreement; or

                     (b)  in any other case—the Income Tax Assessment Act 1997.

71  Other conditions of spectrum licences

             (1)  The ACMA may include such other conditions in a spectrum licence as it thinks fit.

             (2)  The ACMA’s power under this section is not limited by sections 67 to 69A.

Subdivision DRules about section 50 and related provisions of the Competition and Consumer 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 Competition and Consumer Act 2010, 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.

Division 2Varying spectrum licences

72  Variation with agreement

             (1)  Subject to subsection (2), the ACMA may, with the written agreement of the licensee of a spectrum licence, vary the licence by:

                     (a)  including one or more further conditions; or

                     (b)  revoking or varying any conditions of the licence.

             (2)  The conditions as varied must still comply with the requirements of Subdivision C of Division 1.

73  Variation without agreement

             (1)  Subject to subsection (2), the ACMA may, by written notice given to the licensee of a spectrum licence, vary the licence by:

                     (a)  including one or more further conditions; or

                     (b)  revoking or varying any conditions of the licence, other than core conditions.

             (2)  The conditions as varied must still comply with the requirements of Subdivision C of Division 1.

Note:          Variations of spectrum licences under this section are reviewable under Part 5.6.

Division 3Suspending and cancelling spectrum licences

74  Application of this Division

This Division applies to a spectrum licence if the ACMA is satisfied that the licensee, or a person authorised by the licensee to operate a radiocommunications device under the licence, has:

                     (a)  contravened a condition of the licence, or in any other way contravened this Act; or

                     (b)  operated a radiocommunications device under the licence, or purportedly under the licence:

                              (i)  in contravention of any other law (whether written or unwritten) of the Commonwealth, a State or a Territory; or

                             (ii)  in the course of contravening such a law.

75  Suspending spectrum licences

             (1)  The ACMA may, by written notice given to the licensee, suspend the spectrum licence.

Note:          Suspensions of spectrum licences are reviewable under Part 5.6.

             (2)  The notice must give the reasons for suspending the licence.

             (3)  The ACMA may, at any time, by written notice given to the licensee, revoke the suspension of the licence.

76  Period of suspension

             (1)  Subject to subsection (2), the suspension of the spectrum licence, unless it is sooner revoked, ceases:

                     (a)  if, within 28 days after the suspension, proceedings for an offence against this Act are instituted against the licensee, or against a person authorised by the licensee to operate a radiocommunications device under the licence, and he or she is convicted of the offence—on the expiration of 14 days after the date of the conviction; or

                     (b)  if such proceedings are instituted within 28 days after the suspension and he or she is not convicted of the offence—on the completion of the proceedings; or

                     (c)  in any other case—on the expiration of 28 days after the suspension.

             (2)  If:

                     (a)  the notice of suspension specifies a day as the day on which the suspension of the spectrum licence ceases; and

                     (b)  that day occurs before the day fixed under subsection (1);

the suspension of the licence, unless it is sooner revoked, ceases on the day so specified.

             (3)  In subsection (1):

proceedings does not include proceedings by way of appeal or review.

77  Cancelling spectrum licences

             (1)  The ACMA may, by written notice given to the licensee, cancel the spectrum licence.

Note:          Cancellations of spectrum licences are reviewable under Part 5.6.

             (2)  The notice must give the reasons for cancelling the licence.

Division 4Re‑issuing spectrum licences

78  Notice of spectrum licences that are about to be re‑issued

                   The ACMA must, from time to time, publish on its website a notice that:

                     (a)  states where information may be obtained about:

                              (i)  the spectrum licences that will expire during a period specified in the notice; and

                             (ii)  the parts of the spectrum to which they relate; and

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

79  Preparation of draft spectrum licences for re‑issue

             (1)  The ACMA may, at any time prior to a spectrum licence expiring, prepare:

                     (a)  a draft of a new spectrum licence that would wholly or partly replace that licence; or

                     (b)  drafts of 2 or more new spectrum licences that, taken together, would wholly or partly replace that licence.

             (2)  The conditions included in a draft licence need not be the same conditions as those included in the licence that is to be replaced.

80  Procedures for re‑allocating spectrum licences

                   The procedures determined under section 60 apply, so far as they are capable of applying, to re‑allocating spectrum licences under this Division in the same way that they apply to allocating spectrum licences under Subdivision B of Division 1.

81  Re‑issue of spectrum licences

             (1)  The ACMA may re‑allocate a spectrum licence in accordance with the procedures determined under section 60 (as they apply because of section 80), but not otherwise.

             (2)  The ACMA must issue the spectrum licence to the person to whom it is re‑allocated if the person:

                     (a)  pays to the ACMA the spectrum access charge for issuing the licence; or

                     (b)  reaches an agreement with the ACMA for payment of that spectrum access charge.

82  Re‑issue of spectrum licences to the same licensees in the public interest

             (1)  The ACMA may, without following the procedures determined under section 60 (as they apply because of section 80), re‑issue a spectrum licence to the person to whom it was previously issued if:

                     (a)  the licence was used in the provision of a service included in a class of services specified in a determination under subsection (3); or

                     (b)  the ACMA is satisfied that special circumstances exist as a result of which it is in the public interest for that person to continue to hold the licence.

             (2)  Subsection (1) does not imply that the ACMA must issue such a spectrum licence without the person:

                     (a)  paying to the ACMA the spectrum access charge for issuing the licence; or

                     (b)  reaching an agreement with the ACMA for payment of that spectrum access charge.

             (3)  The Minister may determine, by written instrument, a specified class of services for which re‑issuing spectrum licences to the same licensees would be in the public interest.

             (4)  A determination is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.

             (5)  The ACMA must notify the licensee in writing if the core conditions of the re‑issued licence differ from the core conditions of the licence it replaces.

Note:          Changes in the core conditions of such re‑issued licences are reviewable decisions under Part 5.6.

             (6)  This section does not prevent a spectrum licence being issued under section 81 to a person to whom it was previously issued.

83  General rules about newly‑issued spectrum licences apply to re‑issued spectrum licences

                   Subdivisions C and D of Division 1 apply to spectrum licences re‑issued under this Division in the same way that those Subdivisions apply to spectrum licences issued under Division 1.

84  Commencement of re‑issued spectrum licences

                   A spectrum licence re‑issued under this Division comes into force on the day specified in the licence, not being a day occurring earlier than the expiry of the spectrum licence it replaces.

Division 5Trading spectrum licences

85  Trading spectrum licences

             (1)  Subject to subsection (2) and section 86 of this Act and section 577L of the Telecommunications Act 1997, the licensee of a spectrum licence may assign, or otherwise deal with, the whole or any part of the licence.

             (2)  An assignment must comply with any rules made under section 88.

86  Registration of assignments etc.

             (1)  The parties to an assignment under section 85 of the whole, or any part of, a licence that involves:

                     (a)  a change in the licensee; or

                     (b)  the issue of a spectrum licence; or

                     (c)  the variation of the conditions of a spectrum licence; or

                     (d)  the cancellation of one or more existing spectrum licences;

must give to the ACMA such information about the assignment as the ACMA requires (if any) for the purpose of amending the Register to take account of the assignment.

             (2)  The assignment covered by subsection (1) cannot take effect before the Register is amended under Part 3.5 to take it into account.

87  Variation etc. of spectrum licences to take assignments into account

             (1)  The ACMA may do one or more of the following if it is satisfied it is necessary or convenient to do so in order to give effect to an assignment under section 85:

                     (a)  vary a spectrum licence by specifying in it as the licensee a different person from the person currently specified;

                     (b)  vary the conditions of a spectrum licence by:

                              (i)  including one or more further conditions; or

                             (ii)  revoking or varying any conditions;

                     (c)  issue one or more new spectrum licences;

                     (d)  cancel one or more existing spectrum licences.

             (2)  A licence as varied, or a new licence issued, under subsection (1) must comply with the requirements of Subdivision C of Division 1.

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

Note:          Variations and cancellations under this section are reviewable under Part 5.6.

88  Rules about assignments etc.

             (1)  The ACMA may, by legislative instrument, determine rules:

                     (a)  for assignments of spectrum licences; and

                     (b)  setting out the circumstances in which spectrum licences are to be varied, issued or cancelled under section 87.

             (2)  The rules may, for example, restrict assignments of spectrum licences that were issued for the provision of public or community services.

Division 6Resuming spectrum licences

Subdivision AResuming spectrum licences by agreement

89  ACMA may resume spectrum licences by agreement

             (1)  The ACMA may resume a spectrum licence, or a part of a spectrum licence, under an agreement entered into with the licensee.

             (2)  Without limiting the matters that may be included in the agreement, if a part of the licence is to be resumed, the agreement must specify variations to the conditions included in the remaining part of the licence that will be made to give effect to the agreement.

90  Effect of resumption

             (1)  If the whole of the licence is resumed, it ceases to have effect:

                     (a)  at the end of the day specified for that purpose in the agreement; or

                     (b)  if such a day is not specified—at the end of the day on which the agreement is entered into.

             (2)  If a part of the licence is resumed:

                     (a)  that part of the licence ceases to have effect at the end of the day on which the ACMA makes the necessary changes to the information in the Register under section 146 to take the resumption into account; and

                     (b)  the ACMA must vary, in a way that gives effect to the variations specified in the agreement, the conditions included in the remaining part of the licence.

Subdivision BResuming spectrum licences by compulsory process

91  ACMA may resume spectrum licences compulsorily

             (1)  Subject to subsection (2), the ACMA may resume a spectrum licence, or a part of a spectrum licence.

             (2)  The ACMA must not resume the licence unless:

                     (a)  the Minister has given his or her written approval for the resumption; and

                     (b)  the ACMA has followed the resumption procedures set out in Part 1 of the Schedule.

92  Effect of resumption

             (1)  If the whole of the licence is resumed, it ceases to have effect:

                     (a)  on the day specified for that purpose in the notice of resumption; or

                     (b)  if such a day is not specified—at the end of the day on which the notice is given.

             (2)  If a part of the licence is resumed:

                     (a)  that part of the licence ceases to have effect at the end of the day on which the ACMA makes the necessary changes to the information in the Register under section 146 to take the resumption into account; and

                     (b)  the ACMA must vary, in the way that in its opinion best gives effect to the resumption, the conditions included in the remaining part of the licence.

Note:          Variations under this section are reviewable under Part 5.6.

93  Payment of compensation

             (1)  Part 2 of the Schedule sets out the procedures to be followed for determining the compensation payable for:

                     (a)  resuming the licence or the part of the licence; or

                     (b)  publishing a pre‑acquisition declaration that is revoked before resumption of the licence, or the part of the licence, takes place.

             (2)  If an amount of compensation is determined under those procedures to be payable to a person, the Commonwealth must pay that amount to that person, together with the amount of interest payable under section 94.

94  Interest payable on resumption etc.

             (1)  Interest is payable on the amount of compensation in respect of the period:

                     (a)  starting:

                              (i)  if the licence or the part of the licence is resumed—on the day the resumption took place; or

                             (ii)  if the pre‑acquisition declaration was revoked before the resumption took place—on the day the pre‑acquisition declaration was served on the licensee; and

                     (b)  finishing at the end of the day on which the compensation is paid.

             (2)  Interest is payable at the rate specified in, or ascertained in accordance with, the regulations.

95  Reaching agreements during the compulsory process

             (1)  This Subdivision does not prevent the ACMA entering into an agreement under section 89 under which a spectrum licence or a part of a spectrum licence is resumed even though the ACMA was, until the agreement was entered into, in the process of resuming the licence, or the part of the licence, under section 91.

             (2)  On entering into the agreement, the ACMA must stop the process of resuming the licence, or the part of the licence, under this Subdivision.

Part 3.3Apparatus licences

  

96  Outline of this Part

             (1)  This Part is about apparatus licences, under which licensees are authorised to operate the radiocommunications devices to which the licences relate.

             (2)  Division 1 is about the types of apparatus licences that may be issued.

             (3)  Division 2 is about issuing apparatus licences.

             (4)  Division 3 is about the conditions to which apparatus licences are subject.

             (5)  Division 4 is about licensees authorising third parties to operate radiocommunications devices under apparatus licences.

             (6)  Division 5 is about requirements to have qualified operators to operate radiocommunications devices under some apparatus licences.

             (7)  Divisions 6 and 6A are about suspending and cancelling apparatus licences.

             (8)  Division 7 is about renewing apparatus licences.

Division 1Types of apparatus licences

97  Transmitter licences and receiver licences

             (1)  The ACMA may issue:

                     (a)  transmitter licences; and

                     (b)  receiver licences.

             (2)  A transmitter licence authorises:

                     (a)  the person specified in the licence as the licensee; and

                     (b)  subject to Division 4, any person authorised by that person under section 114;

to operate specified radiocommunications transmitters, or radiocommunications transmitters of a specified kind.

             (3)  A receiver licence authorises:

                     (a)  the person specified in the licence as the licensee; and

                     (b)  subject to Division 4, any person authorised by that person under section 114;

to operate specified radiocommunications receivers, or radiocommunications receivers of a specified kind.

             (4)  Operation of a radiocommunications device is not authorised by the relevant apparatus licence if it is not in accordance with the conditions of the licence.

98  Types of transmitter licences and receiver licences

             (1)  The ACMA may, by legislative instrument, determine the types of transmitter licences and the types of receiver licences that it may issue.

             (2)  The ACMA must not issue an apparatus licence that is not a transmitter licence or receiver licence of a type so determined.

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

98A  Channel A datacasting transmitter licence

             (1)  The ACMA may, by writing, declare that a specified datacasting transmitter licence proposed to be issued is a channel A datacasting transmitter licence for the purposes of this Act.

             (2)  If such a datacasting transmitter licence is issued, the licence is a channel A datacasting transmitter licence for the purposes of this Act.

             (3)  A declaration under subsection (1) is not a legislative instrument.

             (4)  A copy of a declaration under subsection (1) is to be made available on the ACMA’s website.

98B  Channel B datacasting transmitter licence

             (1)  The ACMA may, by writing, declare that a specified datacasting transmitter licence proposed to be issued is a channel B datacasting transmitter licence for the purposes of this Act.

             (2)  If such a datacasting transmitter licence is issued, the licence is a channel B datacasting transmitter licence for the purposes of this Act.

             (3)  A declaration under subsection (1) is not a legislative instrument.

             (4)  A copy of a declaration under subsection (1) is to be made available on the ACMA’s website.

98C  Foundation category 1 digital radio multiplex transmitter licence

             (1)  Subject to this section, the ACMA may, by writing, declare that a specified category 1 digital radio multiplex transmitter licence proposed to be issued is a foundation category 1 digital radio multiplex transmitter licence for the purposes of this Act.

             (2)  If such a category 1 digital radio multiplex transmitter licence is issued, the licence is a foundation category 1 digital radio multiplex transmitter licence for the purposes of this Act.

             (3)  A declaration under subsection (1) is not a legislative instrument.

             (4)  A copy of a declaration under subsection (1) is to be made available on the ACMA’s website.

98D  Foundation category 2 digital radio multiplex transmitter licence

             (1)  Subject to this section, the ACMA may, by writing, declare that a specified category 2 digital radio multiplex transmitter licence proposed to be issued is a foundation category 2 digital radio multiplex transmitter licence for the purposes of this Act.

             (2)  If such a category 2 digital radio multiplex transmitter licence is issued, the licence is a foundation category 2 digital radio multiplex transmitter licence for the purposes of this Act.

             (3)  A declaration under subsection (1) is not a legislative instrument.

             (4)  A copy of a declaration under subsection (1) is to be made available on the ACMA’s website.

98E  Limit on declaration of foundation digital radio multiplex transmitter licences

             (1)  In exercising its powers under subsection 98C(1) or 98D(1) in relation to a particular designated BSA radio area, the ACMA must ensure that the total multiplex capacities under foundation digital radio multiplex transmitter licences for the designated BSA radio area is not more than sufficient to fulfil the number of standard access entitlements that have come into existence, or are likely to come into existence, under subsection 118NQ(2) in its application to the designated BSA radio area.

             (2)  For the purposes of subsection (1), if the number of standard access entitlements that have come into existence, or are likely to come into existence, under subsection 118NQ(2) in its application to the designated BSA radio area is not a multiple of 7, round up that number to the next higher number that is a multiple of 7.

             (3)  Subsection (1) does not prevent the ACMA from making a declaration under subsection 98C(1) in relation to a category 1 digital radio multiplex transmitter licence for a particular designated BSA radio area if the ACMA proposes to cancel a foundation category 1 digital radio multiplex transmitter licence that has been previously issued for that area.

             (4)  Subsection (1) does not prevent the ACMA from making a declaration under subsection 98D(1) in relation to a category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area if the ACMA proposes to cancel a foundation category 2 digital radio multiplex transmitter licence that has been previously issued for that area.

             (5)  In this section:

multiplex capacity has the same meaning as in Division 4B.

Division 2Issuing apparatus licences

99  Applications for apparatus licences

             (1)  A person may apply in writing to the ACMA for an apparatus licence of the type specified in the application.

             (2)  The application must be in a form approved by the ACMA.

             (3)  The ACMA may approve different forms for the different types of apparatus licence.

100  Issuing apparatus licences

             (1)  Subject to sections 102, 102B, 102C, 102D, 102E and 102F, upon such application being made, the ACMA may issue to the applicant an apparatus licence of the type applied for.

          (1A)  The ACMA must not issue a temporary community transmitter licence except under section 101A. For the purposes of this subsection, a temporary community transmitter licence is an apparatus licence that authorises operation of one or more radiocommunications transmitters for transmitting a community broadcasting service in accordance with a temporary community broadcasting licence.

             (2)  The ACMA must not issue an apparatus licence authorising operation of a radiocommunications transmitter within a part of the spectrum designated under subsection 31(1) or (1A) unless:

                     (a)  the issue of the licence is in accordance with a decision of the ACMA under subsection 34(1) or (3) of the Broadcasting Services Act 1992; or

                     (b)  the issue of the licence is in accordance with a determination under subsection 31(2) of this Act; or

                     (c)  the licence is a digital radio multiplex transmitter licence.

             (3)  Subsection (2) does not prevent the ACMA from issuing an apparatus licence authorising operation of a radiocommunications transmitter for transmitting a broadcasting service if:

                     (a)  the licence authorises operation of the transmitter only within a part of the spectrum that constitutes capacity reserved under paragraph 31(1)(a) of the Broadcasting Services Act 1992; and

                     (b)  the broadcasting service in question is a broadcasting service of a kind for which the capacity has been so reserved.

          (3A)  An NBS transmitter licence cannot be issued to any person other than:

                     (a)  the Australian Broadcasting Corporation; or

                     (b)  the Special Broadcasting Service Corporation; or

                     (c)  the Commonwealth.

       (3AA)  Subsection (2) does not prevent the ACMA from issuing an NBS transmitter licence that authorises the operation of one or more transmitters for transmitting one or more national broadcasting services that are covered by a licence area plan in force under section 26 of the Broadcasting Services Act 1992.

          (3B)  The ACMA must not issue a transmitter licence authorising operation of a radiocommunications transmitter for transmitting an international broadcasting service unless there is in force an international broadcasting licence that authorises the provision of that service.

          (3C)  If:

                     (a)  a provisional international broadcasting certificate is in force in relation to an application for a transmitter licence; and

                     (b)  the application for the licence is made by the holder of the certificate; and

                     (c)  the conditions set out in the certificate are satisfied;

the ACMA must not refuse to issue the transmitter licence unless the ACMA is satisfied that there are exceptional circumstances that warrant the refusal.

             (4)  In deciding whether to issue an apparatus licence, the ACMA must have regard to:

                     (a)  all matters that it considers relevant; and

                     (b)  without limiting paragraph (a), the effect on radiocommunications of the proposed operation of the radiocommunications devices that would be authorised under the licence.

          (4A)  The ACMA, in deciding whether to issue an apparatus licence, may have regard to a frequency assignment certificate issued by a person accredited under section 263 to issue such certificates for the purposes of this section, stating that the operation of a device under the 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.

             (5)  In deciding whether to issue an apparatus licence, the ACMA may also have regard to whether, in the 2 years before the application, the applicant has been the holder of an apparatus licence that has been cancelled otherwise than under section 153H.

             (6)  Without limiting subsection (4), in deciding whether to issue a transmitter licence, the ACMA must have regard to the following additional matters:

                     (a)  if a licence that the ACMA may issue as a result of the application would be a licence in respect of which persons operating the transmitters are required under section 119 to be qualified operators in relation to the licence—whether:

                              (i)  the applicant; or

                             (ii)  each person specified by the applicant as a person whom the applicant proposes to authorise under the licence to operate the transmitters;

                            is a qualified operator in relation to such a licence;

                     (b)  whether the ACMA is satisfied that the proposed operation of the transmitters is not reasonably likely to cause:

                              (i)  death of, or injury to, persons; or

                             (ii)  loss of, or damage to, property.

             (7)  If the ACMA refuses to issue the licence, it must give the applicant a written notice of the refusal, together with a statement of its reasons.

Note:          Refusals to issue apparatus licences are reviewable under Part 5.6.

             (8)  Nothing in this Act prevents 2 or more apparatus licences (whether transmitter licences or receiver licences or both) from being contained in the same instrument.

100AA  NBS transmitter licences—authorised channels

             (1)  If:

                     (a)  an NBS transmitter licence is issued under section 100; and

                     (b)  the licence authorises the operation of one or more radiocommunications transmitters for transmitting one or more national television broadcasting services in digital mode in a BSA coverage area;

the licence authorises the operation of the transmitter or transmitters concerned for transmitting those services in that area using the channel or channels allotted to the national broadcaster concerned under the BSA television licence area plan for that BSA television licence area.

             (2)  In this section:

BSA television licence area means a BSA licence area for a commercial television broadcasting licence.

national television broadcasting service means a national broadcasting service that provides television programs.

NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.

100A  NBS transmitter licences—authorisation of datacasting services

             (1)  If:

                     (a)  an NBS transmitter licence is or was issued under section 100; and

                     (b)  the licence authorises the operation of one or more specified radiocommunications transmitters for transmitting a national television broadcasting service in digital mode using one or more channels;

the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting designated datacasting services in digital mode using those channels.

          (1B)  The authorisation of the operation of the transmitter or transmitters concerned for transmitting a designated datacasting service in digital mode using those channels has no effect unless the licensee holds a BSA datacasting licence authorising the provision of that service.

             (2)  In this section:

national broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.

100C  NBS transmitter licences—authorisation of radio broadcasting services

             (1)  If:

                     (a)  an NBS transmitter licence is or was issued to a particular national broadcaster; and

                     (b)  the licence authorises the operation of one or more specified radiocommunications transmitters for transmitting a national television broadcasting service in digital mode using one or more channels;

the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting national radio broadcasting services in digital mode using those channels.

             (2)  In this section:

national broadcaster has the same meaning as in the Broadcasting Services Act 1992.

national broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

national radio broadcasting service means a national broadcasting service that provides radio programs.

national television broadcasting service means a national broadcasting service that provides television programs.

NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.

100D  NBS transmitter licences—authorisation of SDTV multi‑channelled national television broadcasting services

             (1)  If:

                     (a)  an NBS transmitter licence is or was issued to a particular national broadcaster; and

                     (b)  the licence authorises the operation of one or more specified radiocommunications transmitters for transmitting a national television broadcasting service in digital mode using one or more channels; and

                     (c)  the national broadcaster provides, or proposes to provide, one or more SDTV multi‑channelled national television broadcasting services;

the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting the SDTV multi‑channelled national television broadcasting services in digital mode using those channels.

             (2)  In this section:

national broadcaster has the same meaning as in the Broadcasting Services Act 1992.

national broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

national television broadcasting service means a national broadcasting service that provides television programs.

NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.

SDTV multi‑channelled national television broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

100E  NBS transmitter licences—authorisation of HDTV multi‑channelled national television broadcasting services

             (1)  If:

                     (a)  an NBS transmitter licence is or was issued to a national broadcaster; and

                     (b)  the NBS transmitter licence authorises the operation of one or more specified radiocommunications transmitters for transmitting one or more national television broadcasting services in digital mode using one or more channels; and

                     (c)  the national broadcaster provides, or proposes to provide, one or more HDTV multi‑channelled national television broadcasting services;

the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting HDTV multi‑channelled national television broadcasting services using those channels.

             (2)  In this section:

HDTV multi‑channelled national television broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

national broadcaster has the same meaning as in the Broadcasting Services Act 1992.

national broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

national television broadcasting service means a national broadcasting service that provides television programs.

NBS transmitter licence means a transmitter licence for a transmitter that is for use for transmitting, to the public, a national broadcasting service.

101  Testing of radiocommunications devices

             (1)  If the ACMA thinks it necessary for the purposes of paragraph 100(4)(b), the ACMA may, by written notice given to the applicant for a transmitter licence or a receiver licence, request the applicant to:

                     (a)  submit to the ACMA the radiocommunications device specified in the notice, at a time and place specified in the notice, for testing; or

                     (b)  permit the ACMA, or a recognised testing authority, to test the radiocommunications device so specified.

             (2)  A radiocommunications device submitted under paragraph (1)(a) for testing must be returned to the applicant within a reasonable time.

101A  Transmitter licences for temporary community broadcasting

             (1)  If the ACMA allocates a temporary community broadcasting licence (the related licence) to a person, then the ACMA may issue to the person, upon application by the person under section 99, a transmitter licence that authorises operation of one or more specified radiocommunications transmitters for transmitting the community broadcasting service in accordance with the related licence.

             (2)  Subsections 100(4) to (8) apply for the purposes of this section.

102  Transmitter licences for certain broadcasting services

             (1)  Subject to subsections (2AA) and (2AB), if a broadcasting services bands licence (the related licence) is allocated to a person under Part 4 or 6 of the Broadcasting Services Act 1992, the ACMA must issue to the person a transmitter licence that authorises operation of one or more specified radiocommunications transmitters for transmitting the broadcasting service or services concerned in accordance with the related licence.

             (2)  If the related licence is transferred, that transmitter licence is taken to be issued to the person to whom the related licence is transferred.

       (2AA)  Subsection (1) does not apply if:

                     (a)  the related licence is a commercial radio broadcasting licence allocated on or after the digital radio start‑up day for the BSA licence area; and

                     (b)  the related licence is subject to a condition that the related licensee may only provide digital commercial radio broadcasting services under the related licence.

       (2AB)  Subsection (1) does not apply if:

                     (a)  the related licence is a designated community radio broadcasting licence allocated on or after the digital radio start‑up day for the BSA licence area; and

                     (b)  the related licence is subject to a condition that the related licensee may only provide digital community radio broadcasting services under the related licence.

       (2AC)  If:

                     (a)  the related licence is a commercial radio broadcasting licence allocated before the digital radio start‑up day for the BSA licence area; and

                     (b)  under the Broadcasting Services Act 1992, the related licence authorises the related licensee to provide digital commercial radio broadcasting services;

then, after the digital radio start‑up day for the BSA licence area, the transmitter licence does not authorise the operation of a radiocommunications transmitter for transmitting those services.

       (2AD)  If:

                     (a)  the related licence is a designated community radio broadcasting licence allocated before the digital radio start‑up day for the BSA licence area; and

                     (b)  under the Broadcasting Services Act 1992, the related licence authorises the related licensee to provide digital community radio broadcasting services;

then, after the digital radio start‑up day for the BSA licence area, the transmitter licence does not authorise the operation of a radiocommunications transmitter for transmitting those services.

             (3)  If:

                     (a)  a transmitter licence is or was issued under this section; and

                     (b)  the licence authorises the operation of one or more specified radiocommunications transmitters for transmitting the broadcasting service or services concerned in digital mode using one or more channels;

the licence is also taken to authorise the operation of the transmitter or transmitters concerned for transmitting designated datacasting services in digital mode using those channels.

             (5)  The authorisation of the operation of the transmitter or transmitters concerned for transmitting a designated datacasting service in digital mode using those channels has no effect unless:

                     (a)  the licensee holds a BSA datacasting licence authorising the provision of that service; or

                     (b)  the service is a designated teletext service.

102AD  Transmitter licences—authorised channels

             (1)  If:

                     (a)  a transmitter licence is issued under section 102 in relation to a broadcasting services bands licence (the related licence); and

                     (b)  the transmitter licence is held by the licensee of the related licence; and

                     (c)  the transmitter licence authorises the operation of one or more radiocommunications transmitters for transmitting one or more commercial television broadcasting services in accordance with the related licence;

the transmitter licence authorises the operation of the transmitter or transmitters concerned for transmitting:

                     (d)  one or more HDTV multi‑channelled commercial television broadcasting services; and

                     (e)  one or more SDTV multi‑channelled commercial television broadcasting services;

in accordance with the related licence, using the channel or channels allotted to the licensee of the related licence under the BSA television licence area plan.

             (2)  In this section:

commercial television broadcasting licence has the same meaning as in the Broadcasting Services Act 1992.

commercial television broadcasting service means a commercial broadcasting service that provides television programs.

HDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

SDTV multi‑channelled commercial television broadcasting service has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

102B  Datacasting transmitter licences

                   The ACMA must not issue a datacasting transmitter licence to a person unless:

                     (a)  the person is a qualified company; and

                     (b)  if the issue of the licence is not under a price‑based allocation system determined under section 106—the ACMA is satisfied that the issue of the licence would not result in a breach of any of the BSA control rules.

102C  Category 1 digital radio multiplex transmitter licences

             (1)  The ACMA must not issue a category 1 digital radio multiplex transmitter licence to a person unless the person is a qualified company.

             (2)  The ACMA must not issue a foundation category 1 digital radio multiplex transmitter licence for a particular designated BSA radio area otherwise than in accordance with a price‑based allocation system determined under section 106 unless:

                     (a)  the licensee is an eligible joint venture company; and

                     (b)  the application for the licence is accompanied by the fee determined by the ACMA by legislative instrument.

             (3)  The ACMA must not issue a foundation category 1 digital radio multiplex transmitter licence for a particular designated BSA radio area in accordance with a price‑based allocation system determined under section 106 unless:

                     (a)  the ACMA has, by notice published on its website at least 150 days before the issue of the licence, invited applications from eligible joint venture companies for the issue of the licence otherwise than in accordance with a price‑based allocation system determined under section 106; and

                     (b)  either:

                              (i)  no applications were received from eligible joint venture companies after the publication of the notice; or

                             (ii)  one or more applications were received from eligible joint venture companies after the publication of the notice, but the ACMA refused, under section 100, to issue the licence to any of the applicants.

             (4)  The ACMA must not issue a category 1 digital radio multiplex transmitter licence (other than a foundation category 1 digital radio multiplex transmitter licence) for a particular designated BSA radio area otherwise than in accordance with a price‑based allocation system determined under section 106.

Eligible joint venture company

             (5)  For the purposes of the application of this section to a particular designated BSA radio area, a company is an eligible joint venture company if:

                     (a)  before the company was formed, the promoters of the company initially invited:

                              (i)  each incumbent digital commercial radio broadcasting licensee for the designated BSA radio area; and

                             (ii)  if there is a digital community radio broadcasting representative company for the designated BSA radio area—the digital community radio broadcasting representative company;

                            to subscribe for shares in the first‑mentioned company on the basis that:

                            (iii)  the incumbent digital commercial radio broadcasting licensees who accepted the invitation would be issued with an equal number of shares; and

                            (iv)  the only persons entitled to subscribe for shares in the first‑mentioned company are the incumbent digital commercial radio broadcasting licensees and the digital community radio broadcasting representative company; and

                             (v)  assuming that the invitation were to be accepted by each invitee—the incumbent digital commercial radio broadcasting licensees would, in aggregate, hold seven‑ninths of the shares in the first‑mentioned company; and

                            (vi)  assuming that the invitation were to be accepted by each invitee—the digital community radio broadcasting representative company would hold two‑ninths of the shares in the first‑mentioned company; and

                     (b)  in a case where not all of the invitations referred to in paragraph (a) were accepted—before the company was formed, the promoters of the first‑mentioned company invited each person who had accepted an invitation referred to in paragraph (a) to subscribe for the remaining shares in the first‑mentioned company; and

                     (c)  the invitations referred to in paragraph (a) were:

                              (i)  published on the ACMA’s website; and

                             (ii)  open for a period of at least 120 days beginning on or after the commencement of this section; and

                     (d)  there was no discrimination between subscribers for shares in the first‑mentioned company in relation to the consideration payable for the issue of the shares concerned; and

                     (e)  the total amount of money payable as consideration for the issue of the shares in the first‑mentioned company is not substantially in excess of the total amount that, as at the time the invitations referred to in paragraph (a) are published, would be required for the commercially viable operation of the first‑mentioned company if it were assumed that a foundation category 1 digital radio multiplex transmitter licence had been issued to the first‑mentioned company at that time; and

                      (f)  none of the recipients of an invitation referred to in paragraph (a) or (b) were subject to duress as to whether the invitation should be accepted.

             (6)  The promoters of a company may request the ACMA to publish on its website the invitations referred to in paragraph (5)(a).

             (7)  The ACMA must comply with a request under subsection (6) if the ACMA is satisfied that the request was made in good faith.

Fee

             (8)  A fee determined under paragraph (2)(b) must not be such as to amount to taxation.

102D  Category 2 digital radio multiplex transmitter licences

             (1)  The ACMA must not issue a category 2 digital radio multiplex transmitter licence to a person unless the person is a qualified company.

             (2)  The ACMA must not issue a foundation category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area otherwise than in accordance with a price‑based allocation system determined under section 106 unless:

                     (a)  the licensee is an eligible joint venture company; and

                     (b)  the application for the licence is accompanied by the fee determined by the ACMA by legislative instrument.

             (3)  The ACMA must not issue a foundation category 2 digital radio multiplex transmitter licence for a particular designated BSA radio area in accordance with a price‑based allocation system determined under section 106 unless:

                     (a)  the ACMA has, by notice published on its website at least 150 days before the issue of the licence, invited applications from eligible joint venture companies for the issue of the licence otherwise than in accordance with a price‑based allocation system determined under section 106; and

                     (b)  either:

                              (i)  no applications were received from eligible joint venture companies after the publication of the notice; or

                             (ii)  one or more applications were received from eligible joint venture companies after the publication of the notice, but the ACMA refused, under section 100, to issue the licence to any of the applicants.

             (4)  The ACMA must not issue a category 2 digital radio multiplex transmitter licence (other than a foundation category 2 digital radio multiplex transmitter licence) for a particular designated BSA radio area otherwise than in accordance with a price‑based allocation system determined under section 106.

Eligible joint venture company

             (5)  For the purposes of the application of this section to a particular designated BSA radio area, a company is an eligible joint venture company if:

                     (a)  before the company was formed, the promoters of the company initially invited:

                              (i)  each incumbent digital commercial radio broadcasting licensee for the designated BSA radio area; and

                             (ii)  if there is a digital community radio broadcasting representative company for the designated BSA radio area—the digital community radio broadcasting representative company; and

                            (iii)  each national broadcaster;

                            to subscribe for shares in the first‑mentioned company on the basis that:

                            (iv)  the incumbent digital commercial radio broadcasting licensees who accepted the invitation would be issued with an equal number of shares; and

                             (v)  the only persons entitled to subscribe for shares in the first‑mentioned company are the incumbent digital commercial radio broadcasting licensees, the digital community radio broadcasting representative company and the national broadcasters; and

                            (vi)  assuming that the invitation were to be accepted by each invitee—the incumbent digital commercial radio broadcasting licensees would, in aggregate, hold five‑ninths of the shares in the first‑mentioned company; and

                           (vii)  assuming that the invitation were to be accepted by each invitee—the digital community radio broadcasting representative company would hold two‑ninths of the shares in the first‑mentioned company; and

                          (viii)  assuming that the invitation were to be accepted by each invitee—each national broadcaster would hold one‑ninth of the shares in the first‑mentioned company; and

                     (b)  in a case where not all of the invitations referred to in paragraph (a) were accepted—before the company was formed, the promoters of the first‑mentioned company invited each person who had accepted an invitation referred to in paragraph (a) to subscribe for the remaining shares in the first‑mentioned company; and

                     (c)  the invitations referred to in paragraph (a) were:

                              (i)  published on the ACMA’s website; and

                             (ii)  open for a period of at least 120 days beginning on or after the commencement of this section; and

                     (d)  there was no discrimination between subscribers for shares in the first‑mentioned company in relation to the consideration payable for the issue of the shares concerned; and

                     (e)  the total amount of money payable as consideration for the issue of the shares in the first‑mentioned company is not substantially in excess of the total amount that, as at the time the invitations referred to in paragraph (a) are published, would be required for the commercially viable operation of the first‑mentioned company if it were assumed that a foundation category 2 digital radio multiplex transmitter licence had been issued to the first‑mentioned company at that time; and

                      (f)  none of the recipients of an invitation referred to in paragraph (a) or (b) were subject to duress as to whether the invitation should be accepted.

             (6)  The promoters of a company may request the ACMA to publish on its website the invitations referred to in paragraph (5)(a).

             (7)  The ACMA must comply with a request under subsection (6) if the ACMA is satisfied that the request was made in good faith.

National broadcasters

             (8)  A national broadcaster may hold shares in a company that:

                     (a)  is the holder of a category 2 digital radio multiplex transmitter licence; or

                     (b)  is an applicant for the issue of a category 2 digital radio multiplex transmitter licence; or

                     (c)  proposes to apply for the issue of a category 2 digital radio multiplex transmitter licence.

Fee

             (9)  A fee determined under paragraph (2)(b) must not be such as to amount to taxation.

102E  Category 3 digital radio multiplex transmitter licences

Holder of a category 3 digital radio multiplex licence

             (1)  The ACMA must not issue a category 3 digital radio multiplex transmitter licence to a person unless the person is a qualified company, and:

                     (a)  both:

                              (i)  each national broadcaster beneficially owns shares in the company; and

                             (ii)  there are no other beneficial owners of shares in the company; or

                     (b)  both:

                              (i)  a single national broadcaster beneficially owns all the shares in the company; and

                             (ii)  the other national broadcaster has consented to that beneficial ownership.

Obligation to issue a category 3 digital radio multiplex licence

             (2)  If:

                     (a)  a digital radio channel plan is in force for a designated BSA radio area; and

                     (b)  a qualified company applies under section 99 for a category 3 digital radio multiplex transmitter licence for the designated BSA radio area; and

                     (c)  the requirements of paragraph (1)(a) or (b) of this section are satisfied in relation to the qualified company;

the ACMA must, under section 100, issue the category 3 digital radio multiplex transmitter licence to the company unless there is already a category 3 digital radio multiplex transmitter licence for the designated BSA radio area.

National broadcaster may hold shares in the holder of a category 3 digital radio multiplex licence etc.

             (3)  A national broadcaster may hold shares in a company that:

                     (a)  is the holder of a category 3 digital radio multiplex transmitter licence; or

                     (b)  is an applicant for the issue of a category 3 digital radio multiplex transmitter licence; or

                     (c)  proposes to apply for the issue of a category 3 digital radio multiplex transmitter licence.

102F  Limit on issue of non‑foundation digital radio multiplex transmitter licences

             (1)  Before issuing a non‑foundation digital radio multiplex transmitter licence for a particular designated BSA radio area, the ACMA must ensure that:

                     (a)  one or more foundation digital radio multiplex transmitter licences are in force for the designated BSA radio area; and

                     (b)  the total multiplex capacities under those foundation digital radio multiplex transmitter licences is sufficient to fulfil the number of standard access entitlements that have come into existence, or are likely to come into existence, under subsection 118NQ(2) in its application to the designated BSA radio area.

             (2)  For the purposes of subsection (1), if the number of standard access entitlements that have come into existence, or are likely to come into existence, under subsection 118NQ(2) in its application to the designated BSA radio area is not a multiple of 7, round up that number to the next higher number that is a multiple of 7.

103  Duration of apparatus licences

             (1)  An apparatus licence comes into force on the day on which it is issued or on such later day as is specified in the licence for the purpose.

             (2)  Subject to Division 6, an apparatus licence (other than an apparatus licence issued under section 101A or 102, a datacasting transmitter licence or a digital radio multiplex transmitter licence) remains in force for the period specified in the licence.

             (3)  The licence may specify any period not exceeding 5 years.

             (4)  A transmitter licence issued under section 101A:

                     (a)  subject to paragraph (b), continues in force while the related licence referred to in that section remains in force; and

                     (b)  does not have effect while the related licence referred to in that section is suspended.

          (4A)  A transmitter licence issued under subsection 102(1):

                     (a)  subject to paragraphs (b) and (c), continues in force while the related licence referred to in that subsection remains in force; and

                     (b)  does not have effect while the related licence referred to in that subsection is suspended; and

                     (c)  does not have effect after the later of the following dates, if the related licence is a CTV licence within the meaning of the Broadcasting Services Act 1992:

                              (i)  31 December 2006; or

                             (ii)  the date specified in a written determination by the Minister.

          (4B)  A determination under subparagraph (4A)(c)(ii) is a legislative instrument.

             (5)  Subject to Divisions 6 and 6A, a datacasting transmitter licence remains in force for 10 years.

             (6)  Subject to Division 6, a digital radio multiplex transmitter licence remains in force for 15 years.

104  Compliance with plans

             (1)  Subject to subsections (2) and (3), the ACMA may issue an apparatus licence that is inconsistent with the spectrum plan or any relevant frequency band plan only if:

                     (a)  the apparatus licence is granted for purposes which relate to an event of international, national or regional significance; or

                     (b)  the issue of the apparatus licence is otherwise in the public interest; or

                     (c)  the apparatus licence authorises a body covered by any of paragraphs 27(1)(b) to (be) to operate specified radiocommunications devices, or radiocommunications devices of a specified kind, for the purpose of investigations or operations conducted by the body.

             (2)  An apparatus licence of a kind mentioned in paragraph (1)(a) or (b) must not be issued for more than 30 days.

             (3)  An apparatus licence of a kind mentioned in paragraph (1)(a) or (b) must not be renewed under section 130 more than once.

105  Parts of the spectrum allocated for spectrum licences

             (1)  Subject to subsection (2), the ACMA must not issue an apparatus licence that authorises the operation of radiocommunications devices at frequencies that are within a part of the spectrum that is designated under section 36 to be allocated by issuing spectrum licences.

             (2)  The ACMA may issue such an apparatus licence:

                     (a)  to a body covered by any of paragraphs 27(1)(b) to (be) for the purpose of investigations or operations conducted by the body; or

                     (b)  if it is satisfied that the special circumstances of the particular case justify the issuing of the licence.

106  Price‑based allocation system for certain transmitter licences

             (1)  The ACMA may determine in writing a price‑based allocation system for allocating and/or issuing specified transmitter licences (other than licences issued under section 101A or NBS transmitter licences).

             (2)  A system so determined:

                     (a)  may apply generally or in respect of a particular area; and

                     (b)  may apply only in relation to a specified range of frequencies; and

                     (c)  may require payment of an application fee, but not a fee that would be such as to amount to taxation.

             (3)  A system so determined may:

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

                              (i)  any one person; or

                             (ii)  a specified person; or

                     (b)  impose limits on the number of transmitter licences that the ACMA 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 ACMA 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.

          (5A)  A system so determined must provide that a person is not eligible to apply for a channel A datacasting transmitter licence unless the person meets specified requirements.

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

          (6A)  The ACMA must not issue a datacasting transmitter licence under a system so determined if the ACMA is satisfied that the issue of the licence would result in a breach of one or more of the BSA control rules.

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

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

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

          (9A)  The Minister may give written directions to the ACMA in relation to the exercise of the power conferred by subsection (5A).

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

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

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

           (13)  If a transmitter licence is issued under a system so determined, the ACMA must publish in the Gazette:

                     (a)  the successful applicant’s name; and

                     (b)  the amount that the applicant agreed to pay to the Commonwealth for issue of the licence.

           (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 ACMA a written direction requiring the ACMA, 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 ACMA must comply with a direction under subsection (14).

           (16)  A direction under subsection (14) is a legislative instrument.

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

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

             (1)  For the purposes of section 50 and subsections 81(1), 88(9), 89(5A) and 90(9) of the Competition and Consumer Act 2010, 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 or to an NBS transmitter licence.

             (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).

Division 3Conditions of apparatus licences

107  General conditions

             (1)  An apparatus licence is subject to the following conditions:

                     (a)  a condition that the licensee, and any person authorised by the licensee to operate a radiocommunications device under the licence, must comply with this Act;

                     (b)  a condition that the licensee inform each person so authorised of the person’s obligations to comply with this Act and the conditions of the licence;

                     (c)  a condition that the licensee meet all obligations (if any) of the licensee to pay:

                              (i)  charges fixed by determinations under section 60 of the Australian Communications and Media Authority Act 2005; and

                             (ii)  amounts of apparatus licence tax;

                     (d)  a condition that any radiocommunications device operated under the licence must comply with all the standards applicable to it;

                      (f)  such conditions (if any) as the ACMA may, by legislative instrument, determine in relation to that particular type of apparatus licence;

                     (g)  such other conditions as are specified in the licence.

             (2)  Paragraphs (1)(a), (b), (c) and (d) do not limit the kinds of conditions that may be specified under paragraph (1)(f) or (g) or imposed under paragraph 111(1)(a).

Note:          Inclusion of conditions under paragraph (1)(g) is a reviewable decision under Part 5.6.

             (3)  This section does not apply to:

                     (a)  transmitter licences issued under section 101A or 102; or

                     (b)  datacasting transmitter licences; or

                     (c)  digital radio multiplex transmitter licences.

             (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).

108  Additional conditions for transmitter licences

             (1)  A transmitter licence is subject to the additional conditions set out in subsection (2) relating to the operation of any radiocommunications transmitter under the licence by the licensee, or by any person authorised by the licensee to operate a radiocommunications transmitter under the licence.

             (2)  The licensee, and any person so authorised:

                     (a)  must not operate, or permit operation of, the transmitter for a purpose that is inconsistent with a purpose of a kind specified in the appropriate frequency band plan (if any) under subsection 32(4); and

                     (b)  must not operate, or permit operation of, the transmitter except in accordance with any conditions specified in the licence that relate to:

                              (i)  containment of interference, or of the likelihood of interference, to radiocommunications; or

                             (ii)  transmission of an identification signal; and

                     (c)  must not operate, or permit operation of, the transmitter except on a frequency or frequencies, or on a frequency channel, and at a constancy, specified in the licence; and

                     (d)  must not operate, or permit operation of, the transmitter:

                              (i)  in a way that would be likely to cause reasonable persons, justifiably in all the circumstances, to be seriously alarmed or seriously affronted; or

                             (ii)  for the purpose of harassing a person; and

                   (da)  must not operate, or permit operation of, the transmitter for transmitting an international broadcasting service unless there is in force an international broadcasting licence authorising the provision of that service; and

                     (e)  if the licence is a licence in respect of which persons operating the transmitter are required under section 119 to be qualified operators in relation to the licence—must not operate the transmitter unless he or she is such a qualified operator; and

                      (f)  must comply with section 187 of the Navigation Act 2012; and

                     (g)  must comply with any direction:

                              (i)  that relates to operation of the transmitter; and

                             (ii)  to which subsection (3) applies.

             (3)  This subsection applies to a direction that:

                     (a)  is given, in a way not inconsistent with any relevant guidelines under section 112, either orally or in writing; and

                     (b)  is given by:

                              (i)  a member of the Australian Federal Police; or

                             (ii)  a member of the police force of a State or Territory; or

                            (iii)  an officer of the Defence Force; or

                            (iv)  an officer of the Australian Coastal Surveillance Centre; or

                             (v)  an officer who is included in a class of officers specified in the regulations, and who is an officer of an organisation specified in the regulations the sole or principal purpose of which is to deal with natural disasters; and

                     (c)  is reasonably necessary for the purposes of:

                              (i)  securing the safety of a vessel, aircraft or space object that is in danger; or

                             (ii)  dealing with an emergency involving a serious threat to the environment; or

                            (iii)  dealing with an emergency involving risk of death of, or injury to, persons; or

                            (iv)  dealing with an emergency involving risk of substantial loss of, or substantial damage to, property.

             (4)  This section does not limit the kinds of conditions that may be specified under paragraph 107(1)(f) or (g) or imposed under paragraph 111(1)(a).

             (5)  This section does not apply to:

                     (a)  transmitter licences issued under section 102; or

                     (b)  datacasting transmitter licences; or

                     (c)  digital radio multiplex transmitter licences.

108A  Conditions of transmitter licences for temporary community broadcasters

             (1)  A transmitter licence issued under section 101A is subject to the following conditions:

                     (a)  a condition that the licensee must comply with this Act;

                     (b)  a condition that the licensee meet all obligations (if any) of the licensee to pay:

                              (i)  charges fixed by determinations under section 293; and

                             (ii)  amounts of apparatus licence tax;

                     (c)  a condition that the licensee inform each person authorised by the licensee to operate a radiocommunications transmitter under the licence of the person’s obligations to comply with this Act and the conditions of the licence;

                     (d)  a condition that the licensee, and any person so authorised, must comply with guidelines developed by the ACMA under section 33 of the Broadcasting Services Act 1992;

                     (e)  such conditions (if any) as the ACMA, by legislative instrument, determines in relation to licences issued under section 101A;

                      (f)  such other conditions as are specified in the licence.

Note:          Inclusion of conditions under paragraph (1)(f) is a reviewable decision under Part 5.6.

             (2)  The conditions of the licence, including any further conditions imposed under paragraph 111(1)(a), must not be inconsistent with the related licence as referred to in section 101A.

109  Conditions of transmitter licences for certain broadcasting services

             (1)  A transmitter licence issued under section 102 is subject to the following conditions:

                     (a)  a condition that the licensee must comply with this Act;

                     (b)  a condition that the licensee meet all obligations (if any) of the licensee to pay:

                              (i)  charges fixed by determinations under section 60 of the Australian Communications and Media Authority Act 2005; and

                             (ii)  amounts of apparatus licence tax;

                     (c)  a condition that the licensee inform each person authorised by the licensee to operate a radiocommunications transmitter under the licence of the person’s obligations to comply with this Act and the conditions of the licence;

                     (d)  if subsection 26(1) of the Broadcasting Services Act 1992 applies—a condition that the licensee, and any person so authorised, must not operate, or permit operation of, such a transmitter otherwise than in accordance with any relevant technical specifications determined by the ACMA under that subsection;

                   (da)  if a BSA television licence area plan is applicable to the transmission of one or more television broadcasting services under the authority of the licence—a condition that the licensee, and any person so authorised, must not operate, or permit operation of, such a transmitter otherwise than in accordance with any relevant technical specifications determined under the plan;

                     (e)  a condition that the licensee, and any person so authorised, must comply with guidelines developed by the ACMA under section 33 of the Broadcasting Services Act 1992;

                      (f)  such other conditions as are specified in the licence.

             (2)  The conditions of a licence issued under section 102 , including any further conditions imposed under paragraph 111(1)(a), must not be inconsistent with the related licence as referred to in section 102.

Note:          Inclusion of conditions under paragraph (1)(f) is a reviewable decision under Part 5.6.

             (3)  In this section:

television broadcasting service has the same meaning as in section 26 of the Broadcasting Services Act 1992.

109A  Conditions of datacasting transmitter licences

             (1)  A datacasting transmitter licence is subject to the following conditions:

                     (a)  a condition that the licensee must comply with this Act;

                     (b)  a condition that the licensee meet all obligations (if any) of the licensee to pay:

                              (i)  charges fixed by determinations under section 60 of the Australian Communications and Media Authority Act 2005; and

                             (ii)  amounts of apparatus licence tax;

                   (ba)  if the licence is a channel A datacasting transmitter licence—a condition that the licensee will meet all obligations of the licensee to pay amounts of datacasting transmitter licence fee;

                   (bb)  if the licence is a channel A datacasting transmitter licence—a condition that the licensee will comply with the requirements of section 205BA of the Broadcasting Services Act 1992;

                     (c)  a condition that the licensee inform each person authorised by the licensee to operate a radiocommunications transmitter under the licence of the person’s obligations to comply with this Act and the conditions of the licence;

                     (d)  a condition that the licensee, and any person so authorised, must not operate, or permit operation of, the transmitter except on a frequency or frequencies, or on a frequency channel, and at a constancy, specified in the licence;

                     (e)  a condition that the licensee, and any person so authorised, must not operate, or permit operation of, such a transmitter except within:

                              (i)  a part of the spectrum covered by a determination under subsection 34(3) of the Broadcasting Services Act 1992; or

                             (ii)  a part of the spectrum covered by a determination under subsection 34(1) of the Broadcasting Services Act 1992 because of paragraph 34(1)(fa) of that Act;

                      (f)  a condition that the licensee, and any person so authorised, must comply with guidelines developed by the ACMA under section 33 of the Broadcasting Services Act 1992;

                     (g)  if the licence is neither a channel A datacasting transmitter licence nor a channel B datacasting transmitter licence—a condition that the licensee, or a person so authorised, will commence to transmit a datacasting service within 1 year after the allocation of the licence or within such longer period as is notified in writing by the ACMA;

                    (ga)  if the licence is a channel B datacasting transmitter licence—a condition that the licensee, or a person so authorised, will commence to transmit a datacasting service within 18 months after the allocation of the licence or within such longer period as is notified in writing by the ACMA;

                   (gb)  a condition that the licensee, or a person so authorised, will comply with any standards under section 130A of the Broadcasting Services Act 1992 (which deals with technical standards for digital transmission);

                    (gc)  a condition that the licensee, or a person so authorised, will comply with subsection 130V(1) of the Broadcasting Services Act 1992 (which deals with industry standards);

                    (ia)  if the licence is a channel A datacasting transmitter licence—a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter for transmitting a datacasting service unless:

                              (i)  the service is provided under, and in accordance with the conditions of, a BSA datacasting licence, and the service is capable of being received by a domestic digital television receiver; or

                             (ii)  the service is an open narrowcasting television service that is capable of being received by a domestic digital television receiver; or

                            (iii)  the service is a community television broadcasting service that is capable of being received by a domestic digital television receiver;

                    (ib)  if the licence is a channel B datacasting transmitter licence—a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter for transmitting a datacasting service if the datacasting service is:

                              (i)  a commercial broadcasting service; or

                             (ii)  a subscription television broadcasting service that is capable of being received by a domestic digital television receiver;

                    (ic)  if the licence is a channel B datacasting transmitter licence—a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter for transmitting a datacasting service if the licensee or the person so authorised is:

                              (i)  a company that holds a commercial television broadcasting licence; or

                             (ii)  a person who is in a position to exercise control of a commercial television broadcasting licence; or

                            (iii)  a company, where a person is in a position to exercise control of the company and a commercial television broadcasting licence; or

                            (iv)  a national broadcaster; or

                             (v)  a company, where a national broadcaster is in a position to exercise control of the company;

                            and the datacasting service is capable of being received by a domestic digital television receiver;

                    (id)  if the licence is a channel B datacasting transmitter licence—a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter for transmitting a datacasting service provided under a BSA datacasting licence if the holder of the BSA datacasting licence is:

                              (i)  a company that holds a commercial television broadcasting licence; or

                             (ii)  a person who is in a position to exercise control of a commercial television broadcasting licence; or

                            (iii)  a company, where a person is in a position to exercise control of the company and a commercial television broadcasting licence; or

                            (iv)  a national broadcaster; or

                             (v)  a company, where a national broadcaster is in a position to exercise control of the company;

                            and the datacasting service is capable of being received by a domestic digital television receiver;

                    (ie)  if the licence is a channel B datacasting transmitter licence—a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter for transmitting a datacasting service if:

                              (i)  the service is a BSA exempt re‑transmission service; and

                             (ii)  the service is capable of being received by a domestic digital television receiver;

                     (if)  if the licence is a channel A datacasting transmitter licence or a channel B datacasting transmitter licence—a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, such a transmitter for transmitting a datacasting service unless that service is transmitted in digital mode (within the meaning of Schedule 4 to the Broadcasting Services Act 1992);

                     (ij)  if the licence is a channel B datacasting transmitter licence—a condition that the licensee, and any person so authorised, will comply with an access undertaking in force under Division 4A in relation to the licence;

                      (j)  a condition that the licensee, and any person so authorised, will at all times have a constitution;

                     (k)  such other conditions as are specified in the licence.

          (1A)  The ACMA must not notify a longer period for the purposes of paragraph (1)(g) or (ga) unless the ACMA is satisfied that there are exceptional circumstances that warrant the longer period.

          (1B)  For the purposes of subparagraph (1)(ib)(ii), it is immaterial whether a domestic digital television receiver is capable of receiving subscription television broadcasting services when used:

                     (a)  in isolation; or

                     (b)  in conjunction with any other equipment.

          (1C)  A condition specified in a licence under paragraph (1)(k) may deal with the commencement or continuity of transmission of datacasting services.

          (1D)  Subsection (1C) does not limit paragraph (1)(k).

          (1E)  Paragraphs (1)(g) and (ga) do not limit subsection (1C).

Constitution of licensee to contain certain provisions

             (2)  A datacasting transmitter licence is subject to the condition that the licensee’s constitution will at all times contain provisions under which:

                     (a)  a person is not eligible to continue to be the holder of shares in the licensee if, because of holding those shares and of any other relevant circumstances, that or some other person would contravene Part 5 of the Broadcasting Services Act 1992; and

                     (b)  the licensee may secure the disposal of shares held by a person to the extent necessary to prevent a contravention of Part 5 of the Broadcasting Services Act 1992 continuing; and

                     (c)  a person who becomes the holder of shares in the licensee is required to provide to the licensee a statutory declaration:

                              (i)  stating whether the shares are held by the person beneficially and, if not, who has beneficial interests in the shares; and

                             (ii)  stating whether the person, or any person who has a beneficial interest in the shares, is in a position to exercise control of a commercial television broadcasting licence, and giving particulars of any such position; and

                     (d)  a person holding shares in the licensee may be required by the licensee, from time to time, to provide to the licensee statutory declarations concerning matters relevant to the person’s eligibility to continue to be the holder of those shares having regard to the provisions of Part 5 of the Broadcasting Services Act 1992; and

                     (e)  the licensee may secure the disposal of shares held by a person who refuses or fails to provide a statutory declaration under the provisions referred to in paragraph (c) or (d).

Constitution of authorised company to contain certain provisions

             (3)  A datacasting transmitter licence is subject to the condition that the constitution of a company authorised by the licensee to operate a radiocommunications transmitter under the licence will at all times contain provisions under which:

                     (a)  a person is not eligible to continue to be the holder of shares in the company if, because of holding those shares and of any other relevant circumstances, that or some other person would contravene Part 5 of the Broadcasting Services Act 1992; and

                     (b)  the company may secure the disposal of shares held by a person to the extent necessary to prevent a contravention of Part 5 of the Broadcasting Services Act 1992 continuing; and

                     (c)  a person who becomes the holder of shares in the company is required to provide to the company a statutory declaration:

                              (i)  stating whether the shares are held by the person beneficially and, if not, who has beneficial interests in the shares; and

                             (ii)  stating whether the person, or any person who has a beneficial interest in the shares, is in a position to exercise control of a commercial television broadcasting licence, and giving particulars of any such position; and

                     (d)  a person holding shares in the company may be required by the company, from time to time, to provide to the company statutory declarations concerning matters relevant to the person’s eligibility to continue to be the holder of those shares having regard to the provisions of Part 5 of the Broadcasting Services Act 1992; and

                     (e)  the company may secure the disposal of shares held by a person who refuses or fails to provide a statutory declaration under the provisions referred to in paragraph (c) or (d).

Application of control rules

             (4)  Schedule 1 to the Broadcasting Services Act 1992 applies for the purposes of subparagraphs (1)(ic)(ii), (iii) and (v), (1)(id)(ii), (iii) and (v), (2)(c)(ii) and (3)(c)(ii) of this section in a corresponding way to the way in which it applies for the purposes of Part 5 of that Act.

             (5)  Subsections (2) and (3) do not apply to a channel B datacasting transmitter licence unless the relevant transmitter, or any of the relevant transmitters, is operated for transmitting a datacasting service that is capable of being received by a domestic digital television receiver.

Ministerial directions

             (6)  The Minister may give the ACMA a written direction about the exercise of the power conferred by paragraph (1)(k) to specify conditions in a channel A datacasting transmitter licence.

109B  Conditions of digital radio multiplex transmitter licences—general

             (1)  A digital radio multiplex transmitter licence is subject to the following conditions:

                     (a)  a condition that the licensee must comply with this Act;

                     (b)  a condition that the licensee meet all obligations (if any) of the licensee to pay:

                              (i)  charges fixed by determinations under section 60 of the Australian Communications and Media Authority Act 2005; and

                             (ii)  amounts of apparatus licence tax;

                     (c)  a condition that the licensee inform each person authorised by the licensee to operate a multiplex transmitter under the licence of the person’s obligations to comply with this Act and the conditions of the licence;

                     (d)  if the licence is for 2 or more multiplex transmitters—a condition that one of those multiplex transmitters is to be used as the main multiplex transmitter and the others as repeater multiplex transmitters;

                     (e)  a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence except on a frequency channel or channels, and at a constancy, specified in the licence in accordance with the relevant digital radio channel plan;

                      (f)  if the licence is a category 1 digital radio multiplex transmitter licence—a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence for transmitting a service unless:

                              (i)  the service is a digital commercial radio broadcasting service, and there is in force a commercial radio broadcasting licence authorising the provision of the service in the designated BSA radio area concerned; or

                             (ii)  the service is a digital community radio broadcasting service, and there is in force a designated community radio broadcasting licence authorising the provision of the service in the designated BSA radio area concerned;

                     (g)  if the licence is a category 2 digital radio multiplex transmitter licence—a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence for transmitting a service unless:

                              (i)  the service is a digital commercial radio broadcasting service, and there is in force a commercial radio broadcasting licence authorising the provision of the service in the designated BSA radio area concerned; or

                             (ii)  the service is a digital community radio broadcasting service, and there is in force a designated community radio broadcasting licence authorising the provision of the service in the designated BSA radio area concerned; or

                            (iii)  the service is a digital national radio broadcasting service;

                     (h)  if the licence is a category 3 digital radio multiplex transmitter licence—a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence for transmitting a service unless the service is a digital national radio broadcasting service;

                      (i)  if the licence is a foundation category 1 digital radio multiplex transmitter licence—a condition that the licensee, or a person so authorised, will:

                              (i)  commence to transmit a service covered by subparagraph (f)(i) or (ii) on the digital radio start‑up day for the designated BSA radio area concerned; and

                             (ii)  transmit a service covered by subparagraph (f)(i) or (ii) at all times after the commencement referred to in subparagraph (i) of this paragraph;

                      (j)  if the licence is a foundation category 2 digital radio multiplex transmitter licence—a condition that the licensee, or a person so authorised, will:

                              (i)  commence to transmit a service covered by subparagraph (g)(i), (ii) or (iii) on the digital radio start‑up day for the designated BSA radio area concerned; and

                             (ii)  transmit a service covered by subparagraph (g)(i), (ii) or (iii) at all times after the commencement referred to in subparagraph (i) of this paragraph;

                     (k)  a condition that the licensee, and any person so authorised, must not operate, or permit the operation of, a multiplex transmitter under the licence for transmitting a service unless that service is transmitted using a digital modulation technique;

                      (l)  a condition that the licensee must not carry on any activities other than activities that consist of:

                              (i)  operating a multiplex transmitter under the licence; and

                             (ii)  activities that are related to the operation of the multiplex transmitter;

                    (m)  a condition that the licensee, and any person so authorised, must not operate, or permit operation of, a multiplex transmitter under the licence otherwise than in accordance with any relevant technical specifications determined by the relevant digital radio channel plan;

                     (n)  a condition that the licensee, and any person so authorised, must comply with guidelines developed by the ACMA under section 33 of the Broadcasting Services Act 1992;

                     (o)  a condition that the licensee, and any person so authorised, will comply with any standards under section 130AB of the Broadcasting Services Act 1992 (which deals with technical standards relating to the operation of multiplex transmitters);

                     (p)  a condition that the licensee, or a person so authorised, will comply with subsection 130V(1) of the Broadcasting Services Act 1992 (which deals with industry standards);

                     (q)  a condition that the licensee will, if requested to do so by the ACMA, submit to the ACMA, within a specified period of at least 30 days, an implementation plan that complies with any relevant determinations under subsection (2);

                      (r)  a condition that the licensee, and any person so authorised, must comply with an implementation plan submitted to the ACMA by the licensee;

                      (s)  if the licence is a category 3 digital radio multiplex transmitter licence—such other conditions as are specified in the regulations;

                      (t)  such other conditions as are specified in the licence.

Implementation plans

             (2)  The ACMA may, by legislative instrument, determine requirements to be complied with by implementation plans.

             (3)  The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by subsection (2).

             (4)  The ACMA must comply with a direction under subsection (3).

Licences allocated under subsection 40(1) of the Broadcasting Services Act 1992

             (5)  Subparagraphs (1)(f)(i) and (g)(i) do not apply in relation to a commercial radio broadcasting licence allocated under subsection 40(1) of the Broadcasting Services Act 1992.

Continuity of transmission

             (6)  The ACMA may, by legislative instrument, specify circumstances in which a digital radio multiplex transmitter licensee, or a person authorised by such a licensee, is taken, for the purposes of subparagraph (1)(i)(ii), to be transmitting a service covered by subparagraph (1)(f)(i) or (ii).

             (7)  The ACMA may, by legislative instrument, specify circumstances in which a digital radio multiplex transmitter licensee, or a person authorised by such a licensee, is taken, for the purposes of subparagraph (1)(j)(ii), to be transmitting a service covered by subparagraph (1)(g)(i), (ii) or (iii).

             (8)  A copy of a declaration under subsection (6) or (7) must be made available on the ACMA’s website.

Ministerial directions

             (9)  The Minister may, by legislative instrument, give the ACMA a direction about the exercise of the power conferred by paragraph (1)(t) to specify conditions in a digital radio multiplex transmitter licence.

           (10)  The ACMA must comply with a direction under subsection (9).

109C  Conditions of category 1 and category 2 digital radio multiplex transmitter licences—access etc.

Compliance with access regime etc.

             (1)  A category 1 digital radio multiplex transmitter licence and a category 2 digital radio multiplex transmitter licence are subject to the following conditions:

                     (a)  a condition that the licensee, and each person authorised by the licensee to operate a multiplex transmitter under the licence, will comply with any applicable obligations under Division 4B;

                     (b)  a condition that the licensee, and any person so authorised, will comply with an access undertaking in force under Division 4B in relation to the licence;

                     (c)  a condition that the licensee, and any person so authorised, will not give access to multiplex capacity under the licence otherwise than in compliance with:

                              (i)  the standard access obligations (if any) that are applicable to the licence; or

                             (ii)  the excess‑capacity access obligations (if any) that are applicable to the licence; or

                            (iii)  the distributed‑capacity access obligations (if any) that are applicable to the licence.

Proceeds of auctions

             (2)  If:

                     (a)  a foundation digital radio multiplex transmitter licence was issued otherwise than in accordance with a price‑based allocation system determined under section 106; and

                     (b)  the licensee receives the net proceeds of an auction mentioned in subsection 118NT(6);

the licence is subject to the following conditions:

                     (c)  the licensee will set aside the net proceeds of the auction in a separate account with an ADI (within the meaning of the Banking Act 1959);

                     (d)  the licensee will not apply those net proceeds except for the purpose of:

                              (i)  promoting the digital radio broadcasting platform in Australia; or

                             (ii)  discharging a liability of the licensee to pay a fee or charge in relation to the maintenance or operation of the account; or

                            (iii)  discharging a liability incurred by the licensee in connection with the auction (other than a liability to comply with an obligation under Division 4B).

Definition

             (3)  In this section:

multiplex capacity has the same meaning as in Division 4B.

109D  Conditions of foundation digital radio multiplex transmitter licences

Scope

             (1)  This section applies to a foundation digital radio multiplex transmitter licence for a designated BSA radio area if the licence was issued otherwise than in accordance with a price‑based allocation system determined under section 106.

Issue of shares to digital community radio broadcasting representative company

             (3)  The licence is subject to the condition that, if:

                     (a)  there is a digital community radio broadcasting representative company (the representative company) for the designated BSA radio area; and

                     (b)  the representative company gives the licensee a written request under this paragraph to be issued with shares in the licensee; and

                     (c)  the request is made:

                              (i)  before the digital radio start‑up day for the designated BSA radio area; or

                             (ii)  within 12 months after the digital radio start‑up day for the designated BSA radio area; and

                     (d)  if an invitation was made to the representative company under whichever of paragraph 102C(5)(a) or 102D(5)(a) applied in relation to the formation of the licensee—no shares were issued to the representative company in connection with the invitation;

the licensee must:

                     (e)  by written notice given to the representative company, offer to issue to the representative company a number of shares in the licensee such that, if the offer were accepted, the representative company would hold two‑ninths of the shares in the licensee; and

                      (f)  ensure that the offer is made within 30 days after the licensee receives the request; and

                     (g)  keep the offer open for at least 120 days after the offer is made; and

                     (h)  ensure that the rights and restrictions (if any) attached to the shares the subject of the offer are the same as the rights and restrictions (if any) attached to the shares held by existing shareholders in the licensee; and

                      (i)  ensure that the offer price per share does not exceed the amount worked out using the formula:

                           

                            where:

                            number of pre‑offer shares is the number of shares in the licensee (the pre‑offer shares) that were issued before the offer was made.

                            total price of pre‑offer shares is the total amount paid or payable to the licensee as consideration for the issue of the pre‑offer shares.

             (4)  The digital community radio broadcasting representative company for the designated BSA radio area is not entitled to make more than one request under subsection (3).

             (5)  For the purposes of subsection (4), disregard a request if the request does not result in compliance by the licensee with the requirements of subsection (3).

110  Conditions relating to interference

                   The conditions that may be specified in an apparatus licence under paragraph 107(1)(g), 108A(1)(f), 109(1)(f), 109A(1)(k) or 109B(1)(t) include, for example:

                     (a)  a condition requiring the licensee to place advertisements, in a specified way, asking members of the public to contact the licensee if they believe that operation of a transmitter to which the licence relates is causing interference to other radiocommunications; and

                     (b)  a condition that, if operation of the transmitter is causing interference to other radiocommunications, the licensee must (at the licensee’s own expense) adjust, or fit devices to, receivers in order to eliminate or minimise the interference.

111  Changes to licence conditions

             (1)  The ACMA may, by notice in writing given to the licensee of an apparatus licence:

                     (a)  impose one or more further conditions to which the licence is subject; or

                     (b)  revoke or vary any condition imposed under paragraph (a); or

                     (c)  revoke or vary any condition specified under paragraph 107(1)(g), 108A(1)(f), 109(1)(f), 109A(1)(k) or 109B(1)(t); or

                     (d)  if the licence is a transmitter licence, other than a licence issued under section 101A or 102—vary a condition of the kind referred to in paragraph 108(2)(a), (b) or (c) or 109A(1)(d).

Note:          Decisions under this section are reviewable under Part 5.6.

             (2)  The notice given under subsection (1) must specify that:

                     (a)  the licensee may request a statement of reasons for the change; and

                     (b)  a request must be made within 28 days of receipt of the notice.

             (3)  A person receiving a notice under subsection (1) may request a statement of reasons for the decision within 28 days of receiving the notice.

             (4)  If the ACMA receives a request in accordance with subsection (3), the ACMA must give the person a statement of reasons within 28 days of receipt of that request.

Ministerial directions

             (6)  The Minister may, by legislative instrument, give the ACMA a direction about the exercise of a power conferred by paragraph (1)(a), (b) or (c) to impose, vary or revoke conditions of a digital radio multiplex transmitter licence.

             (7)  The ACMA must comply with a direction under subsection (6).

112  Guidelines relating to conditions etc.

             (1)  The ACMA may, by legislative instrument, make guidelines:

                     (a)  that it is to apply in exercising its powers under sections 107, 108 and 111; or

                     (b)  for the purposes of paragraph 108(3)(a).

             (2)  In exercising its powers under sections 107, 108 and 111, the ACMA must comply with any relevant guidelines that are in force.

113  Contravention of conditions

             (1)  A person commits an offence if:

                     (a)  an apparatus licence relates to the person; and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes a condition of the licence.

Penalty:  100 penalty units.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

             (3)  In this section:

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

113A  Constitutional safety net—issue of shares to digital community radio broadcasting representative company

             (1)  If the operation of subsection 109D(3) would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

Division 4Third party users

114  Licensees may authorise third party users

             (1)  Subject to subsections (2), (3), (3AA), (3A), (3B), (3D) and (3F), a licensee of an apparatus licence may, by written instrument, authorise other persons to operate radiocommunications devices under the licence.

             (2)  The licensee must not authorise a person if to do so would be inconsistent with determinations of the ACMA under section 115.

             (3)  The licensee must not authorise a person if:

                     (a)  the person has been issued an apparatus licence that:

                              (i)  was or is of the same type as the licensee’s licence; and

                             (ii)  authorised operation of radiocommunications devices of the same kind as those to which the licensee’s licence relates; and

                     (b)  the person’s licence:

                              (i)  is suspended; or

                             (ii)  has been cancelled within the last 2 years.

       (3AA)  The licensee must not authorise a person if:

                     (a)  the licence is a digital radio multiplex transmitter licence; and

                     (b)  the person is not a qualified company.

          (3A)  The licensee must not authorise a person if:

                     (a)  the licence is a datacasting transmitter licence; and

                     (b)  the person is not a qualified company.

          (3B)  The licensee must not authorise a person if:

                     (a)  the licence is a datacasting transmitter licence; and

                     (b)  the licensee did not, at least 30 days before the authorisation took place, give to the ACMA a written notice stating the licensee’s intention to authorise the person.

          (3C)  If:

                     (a)  the ACMA receives a notice of intention under subsection (3B); and

                     (b)  the ACMA is satisfied that the authorisation would result in a breach of the BSA control rules;

the ACMA may, by written notice given to the licensee within 30 days after the notice of intention was sent to the ACMA, direct the licensee not to authorise the person.

          (3D)  The licensee must not authorise a person in breach of a direction under subsection (3C).

          (3E)  If:

                     (a)  the ACMA receives a notice of intention under subsection (3B); and

                     (b)  the ACMA is satisfied that the authorisation would not result in a breach of the BSA control rules;

the ACMA must, by written notice given to the licensee, inform the licensee accordingly.

           (3F)  If the licensee gives a notice of intention to the ACMA under subsection (3B), the licensee must not authorise the person concerned until whichever of the following first happens:

                     (a)  the licensee receives a notice from the ACMA in relation to the authorisation under subsection (3C) or (3E);

                     (b)  the end of 30 days after the notice of intention was sent to the ACMA.

             (4)  Authorising other persons does not prevent the licensee doing anything in accordance with the licence.

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

                   For the purposes of section 50 and subsections 81(1) and (1A) and 88(9), 89(5A) and 90(9) of the Competition and Consumer Act 2010, 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.

115  Determinations limiting authorisation of third party users

                   The ACMA may, by legislative instrument, determine:

                     (a)  categories of apparatus licences in respect of which licensees must not authorise other persons to operate radiocommunications devices; or

                     (b)  classes of persons who must not be so authorised; or

                     (c)  circumstances in which persons must not be so authorised.

116  Revocation of authorisations

             (1)  If the ACMA is satisfied that a person authorised under section 114 has contravened a condition of the licence to which the authorisation relates, the ACMA may give the licensee a written notice directing the licensee to revoke the authorisation.

Note:          Directions to revoke an authorisation are reviewable under Part 5.6.

             (2)  The notice must give the reasons for the direction.

             (3)  As soon as practicable and, in any event, within 7 days after service of the notice, the licensee must revoke the authorisation.

             (4)  The licensee must not further authorise the person under section 114 until the direction is:

                     (a)  revoked under subsection 289(1) of this Act or as provided for by subsection 33(3) of the Acts Interpretation Act 1901; or

                     (b)  set aside by a court or the AAT.

             (5)  If:

                     (a)  a person has been authorised under section 114 in relation to a particular licence; and

                     (b)  at the time of the authorisation, the person was the licensee of another apparatus licence of the same type that authorised operation of radiocommunications devices of the same kind as those to which the first‑mentioned licence relates; and

                     (c)  the other licence is suspended or cancelled;

the authorisation is taken to have been revoked on the day on which the other licence is suspended or cancelled.

117  Licensees must keep records of authorisations

             (1)  A licensee of an apparatus licence who authorises a person under section 114 must:

                     (a)  cause a copy of the authorisation to be kept in Australia; and

                     (b)  retain the copy for at least one year after the authorisation ceases to be in force.

Penalty:  20 penalty units.

             (2)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

118  Licensees must notify authorised persons of certain matters

             (1)  As soon as practicable and, in any event, within 7 days after the licensee of an apparatus licence is given:

                     (a)  a notice under section 111 relating to changes in licence conditions; or

                     (b)  a notice under subsection 116(1) requiring an authorisation under section 114 to be revoked; or

                     (c)  a notice under subsection 126(1) or 128C(1) suspending the licence; or

                     (d)  a notice under subsection 128(1) or 128B(1), or section 128D, cancelling the licence;

the licensee must notify the effect of the notice to each person who is currently authorised under section 114 in relation to the licence.

Penalty:  20 penalty units.

          (1A)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (2)  Giving such a notice to the licensee does not render unlawful anything done by a person authorised by the licensee under section 114 before the person is notified under subsection (1) of this section.

Division 4AAccess to channel B datacasting transmitter licences

118A  Access to channel B datacasting transmitter licences

                   A reference in this Division to access to a channel B datacasting transmitter licence is a reference to access to services that enable or facilitate the transmission of one or more content services under the licence, where the access is provided for the purpose of enabling one or more content service providers to provide one or more content services.

Note:          Content service provider and content service are defined in section 118M.

118B  Applicant for channel B datacasting transmitter licences must give the ACCC an access undertaking

             (1)  A person is not eligible to apply for a channel B datacasting transmitter licence unless:

                     (a)  the person has given the ACCC a written undertaking that, in the event that the licence is issued to the person, each of the following persons:

                              (i)  the first holder of the licence;

                             (ii)  any person authorised by the first holder of the licence to operate radiocommunications transmitters under the licence;

                            (iii)  any future holder of the licence;

                            (iv)  any person authorised by a future holder of the licence to operate radiocommunications transmitters under the licence;

                            will:

                             (v)  comply with such obligations in relation to access to the licence as are ascertained in accordance with the undertaking; and

                            (vi)  do so on such terms and conditions as are agreed with the holder of the licence (or the person so authorised) or, failing agreement, on such terms and conditions as are ascertained in accordance with the undertaking; and

                     (b)  the ACCC has accepted the undertaking.

             (2)  The undertaking must be in a form approved in writing by the ACCC.

             (3)  The undertaking must be accompanied by the fee (if any) specified in the Procedural Rules. The amount of the fee must not be such as to amount to taxation.

             (4)  The undertaking may be without limitations or may be subject to such limitations as are specified in the undertaking.

             (5)  The Procedural Rules may make provision for or in relation to a time limit for giving the undertaking.

118C  Further information about access undertaking

             (1)  This section applies if a person gives an access undertaking to the ACCC.

             (2)  The ACCC may request the person to give the ACCC further information about the access undertaking.

             (3)  If:

                     (a)  the Procedural Rules make provision for or in relation to a time limit for giving the information; and

                     (b)  the person does not give the ACCC the information within the time limit allowed by the Procedural Rules;

the ACCC may, by written notice given to the person, reject the access undertaking.

             (4)  If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the ACCC may refuse to consider the access undertaking until the person gives the ACCC the information.

             (5)  The ACCC may withdraw its request for further information, in whole or in part.

118D  ACCC to accept or reject access undertaking

             (1)  This section applies if a person gives an access undertaking to the ACCC.

Decision to accept or reject access undertaking

             (2)  After considering the access undertaking, the ACCC must:

                     (a)  accept the access undertaking; or

                     (b)  reject the access undertaking.

             (3)  If the ACCC rejects the access undertaking, the ACCC may give the person a written notice advising the person that, if the person:

                     (a)  makes such alterations to the access undertaking as are specified in the notice; and

                     (b)  gives the altered access undertaking to the ACCC within the time limit allowed by the Procedural Rules;

the ACCC will accept the altered access undertaking.

Notice of decision

             (4)  If the ACCC accepts the access undertaking, the ACCC must give the person a written notice stating that the access undertaking has been accepted.

             (5)  If the ACCC rejects the access undertaking, the ACCC must give the person a written notice:

                     (a)  stating that the access undertaking has been rejected; and

                     (b)  setting out the reasons for the rejection.

118E  Duration of access undertaking etc.

             (1)  If:

                     (a)  a person gives an access undertaking to the ACCC in relation to a channel B datacasting transmitter licence; and

                     (b)  the ACCC accepts the access undertaking; and

                     (c)  the licence is issued to the person;

the access undertaking:

                     (d)  comes into force when the licence is issued; and

                     (e)  remains in force while the licence is in force; and

                      (f)  is suspended while the licence is suspended.

             (2)  To avoid doubt, if:

                     (a)  an access undertaking is in force in relation to a channel B datacasting transmitter licence; and

                     (b)  the licence is transferred;

then:

                     (c)  the transfer does not result in the lapse of the access undertaking; and

                     (d)  the transferee, and any person authorised by the transferee to operate radiocommunications transmitters under the licence, is bound by the access undertaking.

             (3)  If:

                     (a)  a channel B datacasting transmitter licence is renewed; and

                     (b)  immediately before the expiry of the original licence, an access undertaking was in force in relation to the original licence;

the access undertaking:

                     (c)  remains in force while the new licence is in force, as if:

                              (i)  it were an access undertaking in relation to the new licence; and

                             (ii)  each reference in the access undertaking to a holder of the original licence were a reference to a holder of the new licence; and

                     (d)  is suspended while the new licence is suspended.

118F  Variation of access undertakings

             (1)  This section applies if an access undertaking is in force in relation to a channel B datacasting transmitter licence.

             (2)  The licensee may give the ACCC a variation of the access undertaking.

Decision to accept or reject variation

             (3)  After considering the variation, the ACCC must decide to:

                     (a)  accept the variation; or

                     (b)  reject the variation.

             (4)  If the ACCC rejects the variation, the ACCC may give the person a written notice advising the person that, if the person:

                     (a)  makes such alterations to the variation as are specified in the notice; and

                     (b)  gives the altered variation to the ACCC within the time limit allowed by the Procedural Rules;

the ACCC will accept the altered variation.

Notice of decision

             (5)  If the ACCC accepts the variation, the ACCC must give the licensee a written notice:

                     (a)  stating that the variation has been accepted; and

                     (b)  setting out the terms of the variation.

             (6)  If the ACCC rejects the variation, the ACCC must give the licensee a written notice:

                     (a)  stating that the variation has been rejected; and

                     (b)  setting out the reasons for the rejection.

118G  Further information about variation of access undertaking

             (1)  This section applies if the licensee of a channel B datacasting transmitter licence gives the ACCC a variation of an access undertaking.

             (2)  The ACCC may request the licensee to give the ACCC further information about the variation.

             (3)  If:

                     (a)  the Procedural Rules make provision for or in relation to a time limit for giving the information; and

                     (b)  the licensee does not give the ACCC the information within the time limit allowed by the Procedural Rules;

the ACCC may, by written notice given to the licensee, reject the variation.

             (4)  If the Procedural Rules do not make provision for or in relation to a time limit for giving the information, the ACCC may refuse to consider the variation until the licensee gives the ACCC the information.

             (5)  The ACCC may withdraw its request for further information, in whole or in part.

118H  Decision‑making criteria

Acceptance of access undertaking

             (1)  The ACCC may, by legislative instrument, determine criteria to be applied by the ACCC in deciding whether to accept access undertakings.

             (2)  In deciding whether to accept access undertakings, the ACCC must apply criteria determined under subsection (1).

Acceptance of variation of access undertaking

             (3)  The ACCC may, by legislative instrument, determine criteria to be applied by the ACCC in deciding whether to accept variations of access undertakings.

             (4)  In deciding whether to accept variations of access undertakings, the ACCC must apply criteria determined under subsection (3).

118J  Register of access undertakings

             (1)  The ACCC is to maintain a Register in which the ACCC includes all access undertakings that are in force.

             (2)  The Register may be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the internet.

118K  Enforcement of access undertakings

             (1)  This section applies if an access undertaking is in force in relation to a channel B datacasting transmitter licence.

             (2)  If:

                     (a)  the ACCC; or

                     (b)  any person (the affected person) whose interests are affected by the access undertaking;

thinks that a person (the third person) has breached the access undertaking, the ACCC or affected person may apply to the Federal Court for an order under subsection (3).

             (3)  If the Federal Court is satisfied that the third person has breached the access undertaking, the Court may make all or any of the following orders:

                     (a)  an order directing the third person to comply with the access undertaking;

                     (b)  an order directing the third person to compensate any other person who has suffered loss or damage as a result of the breach;

                     (c)  any other order that the Court thinks appropriate.

             (4)  The Federal Court may discharge or vary an order granted under this section.

118L  Procedural Rules

             (1)  The ACCC may, by legislative instrument, make rules:

                     (a)  making provision for or in relation to the practice and procedure to be followed by the ACCC in performing functions, or exercising powers, under this Division; or

                     (b)  making provision for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the ACCC under this Division; or

                     (c)  prescribing matters required or permitted by any other provision of this Division to be prescribed by the Procedural Rules.

             (2)  Rules under subsection (1) are to be known as Procedural Rules.

             (3)  The Procedural Rules may make provision for or in relation to any or all of the following:

                     (a)  the confidentiality of information or documents given to the ACCC by a person who gave the ACCC an access undertaking or a variation of an access undertaking;

                     (b)  the form and content of undertakings, variations or other documents given to the ACCC under this Division;

                     (c)  requiring the ACCC to give information to the ACMA about the operation of this Division;

                     (d)  requiring the ACMA to give information to the ACCC that is relevant to the operation of this Division.

             (4)  The Procedural Rules may make provision for or in relation to a matter by empowering the ACCC to make decisions of an administrative character.

             (5)  The Procedural Rules may provide that the ACCC may refuse to consider an access undertaking if:

                     (a)  the ACCC is satisfied that the access undertaking:

                              (i)  is frivolous; or

                             (ii)  is vexatious; or

                            (iii)  was not given in good faith; or

                     (b)  the ACCC has reason to believe that the access undertaking was given for the purpose, or for purposes that include the purpose, of frustrating or undermining the effective administration of this Division.

             (6)  The Procedural Rules may provide that the ACCC may refuse to consider an access undertaking given by a person in relation to a channel B datacasting transmitter licence if (apart from section 118B) the person is not eligible to apply for the licence.

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

118M  Definitions

                   In this Division:

access has the meaning given by section 118A.

access undertaking means an undertaking under section 118B.

content service means:

                     (a)  a datacasting service that is authorised by:

                              (i)  a BSA datacasting licence; or

                             (ii)  another licence allocated by the ACMA under the Broadcasting Services Act 1992; or

                     (b)  a datacasting service provided in accordance with a class licence under the Broadcasting Services Act 1992;

but does not include a service covered by subparagraph 109A(1)(ib)(i) or (ii).

content service provider means a company who provides, or proposes to provide, a content service.

Procedural Rules means Procedural Rules made under section 118L.

Division 4BAccess to digital radio multiplex transmitter licences

Subdivision AIntroduction

118N  Simplified outline

                   The following is a simplified outline of this Division:

        This Division sets out an access regime for digital radio multiplex transmitter licences.

        A digital radio multiplex transmitter licensee is required to comply with access obligations in relation to multiplex capacity under the licence.

        The access obligations facilitate the provision of access to multiplex capacity by content service providers in order that the content service providers can provide content services.

        The terms and conditions on which a digital radio multiplex transmitter licensee is required to comply with the access obligations are as set out in an access undertaking in force in relation to the licence.

118NA  Scope

                   This Division applies in relation to a digital radio multiplex transmitter licence if the licence is:

                     (a)  a category 1 digital radio multiplex transmitter licence; or

                     (b)  a category 2 digital radio multiplex transmitter licence.

118NB  Definitions

                   In this Division:

access undertaking means an undertaking under section 118ND.

content service means:

                     (a)  for the purposes of the application of this Division to a category 1 digital radio multiplex transmitter licence—a service covered by subparagraph 109B(1)(f)(i) or (ii); or

                     (b)  for the purposes of the application of this Division to a category 2 digital radio multiplex transmitter licence—a service covered by subparagraph 109B(1)(g)(i), (ii) or (iii).

content service provider means a company who provides, or proposes to provide, a content service.

distributed‑capacity access entitlement has the meaning given by section 118NU.

distributed‑capacity access obligations has the meaning given by section 118NN.

excess‑capacity access entitlement has the meaning given by section 118NT.

excess‑capacity access obligations has the meaning given by section 118NM.

external auditor means a person authorised under section 118PD to be an external auditor for the purposes of this Division.

multiplex capacity, in relation to a digital radio multiplex transmitter licence, means:

                     (a)  if the licence is for a single multiplex transmitter—so much of the gross transmission capacity of the multiplex transmitter as is available for the transmission of content services; or

                     (b)  if the licence is for a main multiplex transmitter and one or more repeater multiplex transmitters—both:

                              (i)  so much of the gross transmission capacity of the main multiplex transmitter as is available for the transmission of content services; and

                             (ii)  so much of the gross transmission capacity of each of the repeater multiplex transmitters as is available for the transmission of content services.

For the purposes of this definition, in working out so much of the gross transmission capacity of a multiplex transmitter as is available for the transmission of content services, include transmission capacity used to provide error protection for those content services.

Procedural Rules means Procedural Rules made under section 118PO.

standard access entitlement has the meaning given by whichever of section 118NQ, 118NR or 118NS is applicable.

standard access obligations has the meaning given by section 118NL.

118NC  National broadcasters

                   For the purpose of this Division, a national broadcaster is taken to be entitled to provide digital national radio broadcasting services in each designated BSA radio area.

Subdivision BAccess undertakings

118ND  Digital radio multiplex transmitter licensees must give the ACCC access undertakings

             (1)  A digital radio multiplex transmitter licensee must, within 3 months after the issue of the licence, give the ACCC a written undertaking that each of the following persons:

                     (a)  the first holder of the licence;

                     (b)  any person authorised by the first holder of the licence to operate a multiplex transmitter under the licence;

                     (c)  any future holder of the licence;

                     (d)  any person authorised by a future holder of the licence to operate a multiplex transmitter under the licence;

will comply with such terms and conditions as are ascertained in accordance with the undertaking in relation to:

                     (e)  the standard access obligations (if any) that are, or may become, applicable to the licence; and

                      (f)  the excess‑capacity access obligations (if any) that are, or may become, applicable to the licence; and

                     (g)  the distributed‑capacity access obligations (if any) that are, or may become, applicable to the licence.

             (2)  The undertaking must be in a form approved in writing by the ACCC.

             (3)  The undertaking must be accompanied by the fee (if any) specified in the Procedural Rules. The amount of the fee must not be such as to amount to taxation.

             (4)  The undertaking may be without limitations or may be subject to such limitations as are specified in the undertaking.

118NE  Further information about access undertakings

             (1)  This section applies if a digital radio multiplex transmitter licensee gives an access undertaking to the ACCC.

             (2)  The ACCC may request the licensee to give the ACCC further information about the access undertaking.

             (3)  If:

                     (a)  the Procedural Rules make provision for, or in relation to, a time limit for giving the information; and

                     (b)  the licensee does not give the ACCC the information within the time limit allowed by the Procedural Rules;

the ACCC may, by written notice given to the licensee, reject the access undertaking.

             (4)  If the Procedural Rules do not make provision for, or in relation to, a time limit for giving the information, the ACCC may refuse to consider the access undertaking until the licensee gives the ACCC the information.

             (5)  The ACCC may withdraw its request for further information, in whole or in part.

118NF  ACCC to accept or reject access undertakings

             (1)  This section applies if a digital radio multiplex transmitter licensee gives an access undertaking to the ACCC.

Decision to accept or reject access undertaking

             (2)  After considering the access undertaking, the ACCC must:

                     (a)  accept the access undertaking; or

                     (b)  reject the access undertaking.

             (3)  Before accepting the access undertaking, the ACCC must:

                     (a)  publish a copy of the access undertaking on the ACCC’s website; and

                     (b)  invite members of the public to make submissions to the ACCC about the access undertaking within a specified period; and

                     (c)  consider any submissions the ACCC receives from members of the public within that period.

             (4)  If the ACCC rejects the access undertaking, the ACCC may give the licensee a written notice advising the licensee that, if the licensee:

                     (a)  makes such alterations to the access undertaking as are specified in the notice; and

                     (b)  gives the altered access undertaking to the ACCC within the time limit allowed by the Procedural Rules;

the ACCC will accept the altered access undertaking.

             (5)  If the ACCC rejects the access undertaking, the ACCC may, by written notice given to the licensee, determine that an undertaking in the terms specified in the determination is the access undertaking in relation to the licence.

             (6)  Before giving a notice under subsection (5), the ACCC must:

                     (a)  publish a copy of the notice on the ACCC’s website; and

                     (b)  invite members of the public to make submissions to the ACCC about the notice within a specified period; and

                     (c)  consider any submissions the ACCC receives from members of the public within that period.

Notice of decision

             (7)  If the ACCC accepts the access undertaking, the ACCC must give the licensee a written notice stating that the access undertaking has been accepted.

             (8)  If the ACCC rejects the access undertaking, the ACCC must give the licensee a written notice:

                     (a)  stating that the access undertaking has been rejected; and

                     (b)  setting out the reasons for the rejection; and

                     (c)  if the ACCC gives a notice under subsection (5)—stating that the notice has been given.

118NG  Duration of access undertakings etc.

Duration of access undertaking accepted by ACCC

             (1)  If:

                     (a)  a digital radio multiplex transmitter licensee gives an access undertaking to the ACCC; and

                     (b)  the ACCC accepts the access undertaking;

the access undertaking:

                     (c)  comes into force at the time of acceptance; and

                     (d)  remains in force while the licence is in force; and

                     (e)  is suspended while the licence is suspended.

Duration of access undertaking determined by ACCC

             (2)  If, under subsection 118NF(5), the ACCC determines that an undertaking is the access undertaking in relation to a digital radio multiplex transmitter licence, the access undertaking:

                     (a)  comes into force when the determination is made; and

                     (b)  remains in force while the licence is in force; and

                     (c)  is suspended while the licence is suspended.

Transfer of digital radio multiplex transmitter licence

             (3)  To avoid doubt, if:

                     (a)  an access undertaking is in force in relation to a digital radio multiplex transmitter licence; and

                     (b)  the licence is transferred;

then:

                     (c)  the transfer does not result in the lapse of the access undertaking; and

                     (d)  the transferee, and any person authorised by the transferee to operate a multiplex transmitter under the licence, is bound by the access undertaking.

             (4)  Subsection (3) does not prevent the variation of an access undertaking.

Renewal of digital radio multiplex transmitter licence

             (5)  If:

                     (a)  a digital radio multiplex transmitter licence is renewed; and

                     (b)  immediately before the expiry of the original licence, an access undertaking was in force in relation to the original licence;

the access undertaking:

                     (c)  remains in force while the new licence is in force, as if:

                              (i)  it were an access undertaking in relation to the new licence; and

                             (ii)  each reference in the access undertaking to a holder of the original licence were a reference to a holder of the new licence; and

                     (d)  is suspended while the new licence is suspended.

             (6)  Subsection (5) does not prevent the variation of an access undertaking.

118NH  Variation of access undertakings

             (1)  This section applies if an access undertaking is in force in relation to a digital radio multiplex transmitter licence.

             (2)  The licensee:

                     (a)  may give the ACCC a variation of the access undertaking; and

                     (b)  must give the ACCC a variation of the access undertaking if required to do so by the ACCC.

Decision to accept or reject variation

             (3)  After considering the variation, the ACCC must:

                     (a)  accept the variation; or

                     (b)  reject the variation.

             (4)  Before accepting the variation, the ACCC must:

                     (a)  publish a copy of the variation on the ACCC’s website; and

                     (b)  invite members of the public to make submissions to the ACCC about the variation within a specified period; and

                     (c)  consider any submissions the ACCC receives from members of the public within that period.

             (5)  If the ACCC rejects the variation, the ACCC may give the licensee a written notice advising the licensee that, if the licensee:

                     (a)  makes such alterations to the variation as are specified in the notice; and

                     (b)  gives the altered variation to the ACCC within the time limit allowed by the Procedural Rules;

the ACCC will accept the altered variation.

             (6)  If the ACCC rejects the variation, the ACCC may, by written notice given to the licensee, vary the access undertaking.

             (7)  Before giving a notice under subsection (6), the ACCC must:

                     (a)  publish a copy of the notice on the ACCC’s website; and

                     (b)  invite members of the public to make submissions to the ACCC about the notice within a specified period; and

                     (c)  consider any submissions the ACCC receives from members of the public within that period.

Notice of decision

             (8)  If the ACCC accepts the variation, the ACCC must give the licensee a written notice:

                     (a)  stating that the variation has been accepted; and

                     (b)  setting out the terms of the variation.

             (9)  If the ACCC rejects the variation, the ACCC must give the licensee a written notice:

                     (a)  stating that the variation has been rejected; and

                     (b)  setting out the reasons for the rejection; and

                     (c)  if ACCC gives a notice under subsection (6)—stating that the notice has been given.

Requirement to give variation

           (10)  The ACCC must not, under paragraph (2)(b), impose a requirement (the current requirement) on the licensee to give the ACCC a variation of the access undertaking unless:

                     (a)  the current requirement is imposed by a written notice given to the licensee on or after 1 January 2015; and

                     (b)  the ACCC is satisfied that the access undertaking would be rejected if it were given to the ACCC when the current requirement is imposed; and

                     (c)  no previous requirement was imposed on the licensee under paragraph (2)(b) during the 5‑year period ending immediately before the current requirement was imposed.

           (11)  If the licensee does not give the ACCC a variation of the access undertaking when required to do so by the ACCC under paragraph (2)(b), the ACCC may, by written notice given to the licensee, vary the access undertaking.

           (12)  Before giving a notice under subsection (11), the ACCC must:

                     (a)  publish a copy of the notice on the ACCC’s website; and

                     (b)  invite members of the public to make submissions to the ACCC about the notice within a specified period; and

                     (c)  consider any submissions the ACCC receives from members of the public within that period.

118NI  Further information about variation of access undertakings

             (1)  This section applies if:

                     (a)  an access undertaking is in force in relation to a digital radio multiplex transmitter licence; and

                     (b)  the licensee gives the ACCC a variation of the access undertaking.

             (2)  The ACCC may request the licensee to give the ACCC further information about the variation.

             (3)  If:

                     (a)  the Procedural Rules make provision for, or in relation to, a time limit for giving the information; and

                     (b)  the licensee does not give the ACCC the information within the time limit allowed by the Procedural Rules;

the ACCC may, by written notice given to the licensee, reject the variation.

             (4)  If the Procedural Rules do not make provision for, or in relation to, a time limit for giving the information, the ACCC may refuse to consider the variation until the licensee gives the ACCC the information.

             (5)  The ACCC may withdraw its request for further information, in whole or in part.

118NJ  Decision‑making criteria

Acceptance of access undertaking

             (1)  The ACCC may, by legislative instrument, determine criteria to be applied by the ACCC in deciding whether to accept access undertakings.

             (2)  In deciding whether to accept access undertakings, the ACCC must:

                     (a)  apply criteria determined under subsection (1); and

                     (b)  have regard to such other matters (if any) as the ACCC considers relevant.

Acceptance of variation of access undertaking

             (3)  The ACCC may, by legislative instrument, determine criteria to be applied by the ACCC in deciding whether to accept variations of access undertakings.

             (4)  In deciding whether to accept variations of access undertakings, the ACCC must:

                     (a)  apply criteria determined under subsection (3); and

                     (b)  have regard to such other matters (if any) as the ACCC considers relevant.

118NK  Register of access undertakings

             (1)  The ACCC is to maintain a Register in which the ACCC includes all access undertakings that are in force.

             (2)  The Register may be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the internet.

Subdivision CStandard access obligations, excess‑capacity access obligations and distributed‑capacity access obligations

118NL  Standard access obligations

             (1)  This section sets out the standard access obligations.

             (2)  If:

                     (a)  a content service provider has a standard access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and

                     (b)  the content service provider may use that entitlement for a particular purpose;

the licensee, and any person authorised by the licensee to operate a multiplex transmitter under the licence, must give the content service provider:

                     (c)  access to that fraction of multiplex capacity for that purpose; and

                     (d)  access to services that facilitate the use of that fraction of multiplex capacity for that purpose.

             (3)  The licensee, or the person so authorised, is not required to comply with those obligations unless an access undertaking is in force in relation to the licence.

118NM  Excess‑capacity access obligations

             (1)  This section sets out the excess‑capacity access obligations.

             (2)  If:

                     (a)  a content service provider has an excess‑capacity access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and

                     (b)  the content service provider may use that entitlement for a particular purpose;

the licensee, and any person authorised by the licensee to operate a multiplex transmitter under the licence, must give the content service provider:

                     (c)  access to that fraction of multiplex capacity for that purpose; and

                     (d)  access to services that facilitate the use of that fraction of multiplex capacity for that purpose.

             (3)  The licensee, or the person so authorised, is not required to comply with those obligations unless an access undertaking is in force in relation to the licence.

118NN  Distributed‑capacity access obligations

             (1)  This section sets out the distributed‑capacity access obligations.

             (2)  If:

                     (a)  a content service provider has a distributed‑capacity access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and

                     (b)  the content service provider may use that entitlement for a particular purpose;

the licensee, and any person authorised by the licensee to operate a multiplex transmitter under the licence, must give the content service provider:

                     (c)  access to that fraction of multiplex capacity for that purpose; and

                     (d)  access to services that facilitate the use of that fraction of multiplex capacity for that purpose.

             (3)  The licensee, or the person so authorised, is not required to comply with those obligations unless an access undertaking is in force in relation to the licence.

118NO  Compliance with access obligations

             (1)  This section applies if a digital radio multiplex transmitter licensee, or a person authorised by the licensee to operate a multiplex transmitter under the licence, is required to comply with:

                     (a)  the standard access obligations (if any) that are applicable to the licence; or

                     (b)  the excess‑capacity access obligations (if any) that are applicable to the licence; or

                     (c)  the distributed‑capacity access obligations (if any) that are applicable to the licence.

             (2)  The digital radio multiplex transmitter licensee, or the person so authorised, must comply with the obligations on such terms and conditions as are ascertained in accordance with an access undertaking in force in relation to the licence.

118NP  Other obligations

                   The licensee of a digital radio multiplex transmitter licence, and each person authorised by the licensee to operate a multiplex transmitter under the licence, must not discriminate, as between content service providers who have access to multiplex capacity under the licence, in relation to:

                     (a)  the technical and operational quality of the services supplied to the content service providers; and

                     (b)  the technical and operational quality and timing of the fault detection, handling and rectification supplied to the content service providers;

for the purposes of facilitating the use of that multiplex capacity.

118NQ  Standard access entitlements of commercial broadcasters

Scope

             (1)  This section applies to a foundation digital radio multiplex transmitter licence for a designated BSA radio area.

Standard access entitlements

             (2)  If:

                     (a)  an incumbent digital commercial radio broadcasting licensee for the designated BSA radio area, by written notice given to the digital radio multiplex transmitter licensee, claims access to one‑ninth of multiplex capacity under the digital radio multiplex transmitter licence; and

                     (b)  the notice is given within 30 days after the issue of the digital radio multiplex transmitter licence;

the incumbent digital commercial radio broadcasting licensee:

                     (c)  is entitled to access to one‑ninth of multiplex capacity under the digital radio multiplex transmitter licence (which entitlement is called a standard access entitlement); and

                     (d)  may only use that standard access entitlement for the purpose of providing, under the digital commercial radio broadcasting licence, one or more digital commercial radio broadcasting services in the designated BSA radio area; and

                     (e)  is not entitled to transfer the digital commercial radio broadcasting licensee’s standard access entitlement.

             (3)  Subsection (2) has effect subject to subsections (5) and (6).

             (4)  If the digital radio multiplex transmitter licensee receives a subsection (2) notice, the licensee must, within 7 days after receiving the notice, give a copy of the notice to the ACCC.

             (5)  An incumbent digital commercial radio broadcasting licensee for the designated BSA radio area must not give a subsection (2) notice to the digital radio multiplex transmitter licensee if:

                     (a)  the incumbent digital radio broadcasting licensee has given another subsection (2) notice to the digital radio multiplex transmitter licensee; or

                     (b)  the incumbent digital commercial radio broadcasting licensee has given a subsection (2) notice to the licensee of another digital radio multiplex transmitter licence for the designated BSA radio area.

             (6)  If subsection (2) notices would result in demand from incumbent digital commercial radio broadcasting licensees for access to multiplex capacity under the first‑mentioned digital radio multiplex transmitter licence being greater than so much of the multiplex capacity under the first‑mentioned digital radio multiplex transmitter licence as is neither:

                     (a)  reserved under subsection 118NR(2) (which deals with community broadcasters); nor

                     (b)  covered by a standard access entitlement arising under subsection 118NS(2) (which deals with national broadcasters);

the ACCC may, by written notice given to a particular incumbent digital commercial radio broadcasting licensee before the digital radio start‑up day for the designated BSA radio area:

                     (c)  cancel the licensee’s subsection (2) notice; and

                     (d)  determine that this section has effect as if the licensee’s subsection (2) notice had never been given; and

                     (e)  determine that this section has effect as if the licensee had given a notice under subsection (2) in relation to another foundation digital radio multiplex transmitter licence for the designated BSA radio area.

118NR  Standard access entitlements of community broadcasters

Scope

             (1)  This section applies to a foundation digital radio multiplex transmitter licence for a designated BSA radio area.

Reservation of multiplex capacity

             (2)  Two‑ninths of multiplex capacity under the digital radio multiplex transmitter licence is reserved for digital community radio broadcasting licensees who are or may be nominated in accordance with subsection (3), (7) or (10).

Standard access entitlements—applicable fraction of multiplex capacity

             (3)  If:

                     (a)  the digital community radio broadcasting representative company for the designated BSA radio area, by written notice given to the licensee of the digital radio multiplex transmitter licence:

                              (i)  nominates 2 or more digital community radio broadcasting licensees for the purposes of this subsection; and

                             (ii)  for each nominated digital community radio broadcasting licensee, determines an applicable fraction; and

                     (b)  the notice is in force;

each nominated digital community radio broadcasting licensee:

                     (c)  is entitled to access to the digital community radio broadcasting licensee’s applicable fraction of the multiplex capacity reserved under subsection (2) (which entitlement is called a standard access entitlement); and

                     (d)  may only use that standard access entitlement for the purpose of providing, under the digital community radio broadcasting licence, one or more digital community radio broadcasting services in the designated BSA radio area; and

                     (e)  is not entitled to transfer the digital community radio broadcasting licensee’s standard access entitlement.

             (4)  The sum of the applicable fractions determined in a notice under subsection (3) must not be greater than 1.

             (5)  The applicable fractions determined in a notice under subsection (3) may be the same or different for each nominated digital community radio broadcasting licensee.

             (6)  A notice given by a digital community radio broadcasting representative company cannot be in force under subsection (3) at the same time as:

                     (a)  another notice given by the company is in force under subsection (3); or

                     (b)  a notice given by the company is in force under subsection (7) or (10).

Standard access entitlements—designated fraction of multiplex capacity

             (7)  If:

                     (a)  the digital community radio broadcasting representative company for the designated BSA radio area, by written notice given to the licensee of the digital radio multiplex transmitter licence, nominates 2 or more digital community radio broadcasting licensees for the purposes of this subsection; and

                     (b)  the notice is in force;

each nominated digital community radio broadcasting licensee:

                     (c)  is entitled to access to the designated fraction of the multiplex capacity reserved under subsection (2) (which entitlement is called a standard access entitlement); and

                     (d)  may only use that standard access entitlement for the purpose of providing, under the digital community radio broadcasting licence, one or more digital community radio broadcasting services in the designated BSA radio area; and

                     (e)  is not entitled to transfer the digital community radio broadcasting licensee’s standard access entitlement.

             (8)  For the purposes of subsection (7), the designated fraction is as follows:

                  

             (9)  A notice given by a digital community radio broadcasting representative company cannot be in force under subsection (7) at the same time as:

                     (a)  another notice given by the company is in force under subsection (7); or

                     (b)  a notice given by the company is in force under subsection (3) or (10).

Standard access entitlements—half of multiplex capacity

           (10)  If:

                     (a)  the digital community radio broadcasting representative company for the designated BSA radio area, by written notice given to the licensee of the digital radio multiplex transmitter licence, nominates a single digital community radio broadcasting licensee for the purposes of this subsection; and

                     (b)  the notice is in force;

the nominated digital community radio broadcasting licensee:

                     (c)  is entitled to access to half of the multiplex capacity reserved under subsection (2) (which entitlement is called a standard access entitlement); and

                     (d)  may only use that standard access entitlement for the purpose of providing, under the digital community radio broadcasting licence, one or more digital community radio broadcasting services in the designated BSA radio area; and

                     (e)  is not entitled to transfer the digital community radio broadcasting licensee’s standard access entitlement.

           (11)  A notice given by a digital community radio broadcasting representative company cannot be in force under subsection (10) at the same time as:

                     (a)  another notice given by the company is in force under subsection (10); or

                     (b)  a notice given by the company is in force under subsection (3) or (7).

Subsequent notices

           (12)  If:

                     (a)  a digital community radio broadcasting representative company gives a notice (the first notice) under subsection (3); and

                     (b)  the first notice is in force;

the company must not give another notice under subsection (3) or a notice under subsection (7) or (10) unless the other notice under subsection (3) or the notice under subsection (7) or (10), as the case may be:

                     (c)  is accompanied by a notice under subsection (15) revoking the first notice; and

                     (d)  is expressed to take effect immediately after the revocation of the first notice.

           (13)  If:

                     (a)  a digital community radio broadcasting representative company gives a notice (the first notice) under subsection (7); and

                     (b)  the first notice is in force;

the company must not give another notice under subsection (7) or a notice under subsection (3) or (10) unless the other notice under subsection (7) or the notice under subsection (3) or (10), as the case may be:

                     (c)  is accompanied by a notice under subsection (15) revoking the first notice; and

                     (d)  is expressed to take effect immediately after the revocation of the first notice.

           (14)  If:

                     (a)  a digital community radio broadcasting representative company gives a notice (the first notice) under subsection (10); and

                     (b)  the first notice is in force;

the company must not give another notice under subsection (10) or a notice under subsection (3) or (7) unless the other notice under subsection (10) or the notice under subsection (3) or (7), as the case may be:

                     (c)  is accompanied by a notice under subsection (15) revoking the first notice; and

                     (d)  is expressed to take effect immediately after the revocation of the first notice.

Revocation of notices

           (15)  If a notice given by a digital community radio broadcasting representative company under subsection (3), (7) or (10) is in force:

                     (a)  the company may, by written notice given to the licensee of the digital radio multiplex transmitter licence, revoke the notice given under subsection (3), (7) or (10), as the case may be; and

                     (b)  the revocation takes effect at the start of the 30th day after the day on which the notice of revocation is given.

           (16)  A notice of revocation under subsection (15) has no effect unless the digital community radio broadcasting representative company also gives the licensee of the digital radio multiplex transmitter licence:

                     (a)  if the notice of revocation relates to a notice (the original notice) given under subsection (3)—either:

                              (i)  a fresh notice under subsection (3) that is expressed to take effect immediately after the revocation of the original notice; or

                             (ii)  a notice under subsection (7) or (10) that is expressed to take effect immediately after the revocation of the original notice; and

                     (b)  if the notice of revocation relates to a notice (the original notice) given under subsection (7)—either:

                              (i)  a fresh notice under subsection (7) that is expressed to take effect immediately after the revocation of the original notice; or

                             (ii)  a notice under subsection (3) or (10) that is expressed to take effect immediately after the revocation of the original notice; and

                     (c)  if the notice of revocation relates to a notice (the original notice) given under subsection (10)—either:

                              (i)  a fresh notice under subsection (10) that is expressed to take effect immediately after the revocation of the original notice; or

                             (ii)  a notice under subsection (3) or (7) that is expressed to take effect immediately after the revocation of the original notice.

           (17)  If:

                     (a)  a digital community radio broadcasting licensee is nominated in a notice under subsection (3), (7) or (10); and

                     (b)  the notice is revoked under subsection (15);

this section does not prevent that digital community radio broadcasting licensee from being nominated in:

                     (c)  in the case of the revocation of a notice given under subsection (3):

                              (i)  a fresh notice under subsection (3); or

                             (ii)  a notice under subsection (7) or (10); and

                     (d)  in the case of the revocation of a notice given under subsection (7):

                              (i)  a fresh notice under subsection (7); or

                             (ii)  a notice under subsection (3) or (10); and

                     (e)  in the case of the revocation of a notice given under subsection (10):

                              (i)  a fresh notice under subsection (10); or

                             (ii)  a notice under subsection (3) or (7).

No variation of notices

           (18)  A notice under subsection (3), (7) or (10) cannot be varied.

Limit on nomination

           (19)  The nomination of a digital community radio broadcasting licensee for the purposes of subsection (3), (7) or (10) has no effect if the licensee has already been nominated for the purposes of any of those subsections in the subsection’s application to another digital radio multiplex transmitter licence for the designated BSA radio area.

Transitional

           (20)  For the purposes of the application of this section before the digital radio start‑up day for the designated BSA radio area, digital community radio broadcasting licensee includes an incumbent digital community radio broadcasting licensee.

118NS  Standard access entitlements of national broadcasters

Scope

             (1)  This section applies to a foundation category 2 digital radio multiplex transmitter licence for a designated BSA radio area.

Standard access entitlements

             (2)  Each national broadcaster:

                     (a)  is entitled to access to one‑ninth of multiplex capacity under the digital radio multiplex transmitter licence (which entitlement is called a standard access entitlement); and

                     (b)  may only use that standard access entitlement for the purpose of providing one or more digital national radio broadcasting services in the designated BSA radio area; and

                     (c)  may transfer the national broadcaster’s standard access entitlement to the other national broadcaster.

             (3)  If a standard access entitlement is transferred as mentioned in paragraph (2)(c):

                     (a)  the standard access entitlement may be further transferred, or successively transferred, so long as the holder for the time being of the standard access entitlement is a national broadcaster; and

                     (b)  the holder for the time being of the standard access entitlement is entitled to access to one‑ninth of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing one or more digital national radio broadcasting services in the designated BSA radio area.

118NT  Excess‑capacity access entitlements etc.

Scope

             (1)  This section applies to a foundation digital radio multiplex transmitter licence for a designated BSA radio area if:

                     (a)  on the digital start‑up day for the area, the multiplex capacity available under the digital radio multiplex transmitter licence exceeds the aggregate of:

                              (i)  the fractions of multiplex capacity relating to standard access entitlements that have come into existence under subsections 118NQ(2) and 118NS(2); and

                             (ii)  the fractions of multiplex capacity reserved under subsection 118NR(2); or

                     (b)  at any time after the 12‑month period beginning on the digital start‑up day for the area, the multiplex capacity available under the digital radio multiplex transmitter licence exceeds the aggregate of:

                              (i)  the fractions of multiplex capacity relating to standard access entitlements that have come into existence under subsections 118NQ(2) and 118NS(2); and

                             (ii)  the fractions of multiplex capacity reserved under subsection 118NR(2);

and an access undertaking is in force in relation to the licence.

Initial level of demand for access to excess multiplex capacity must be ascertained

             (2)  If paragraph (1)(a) applies, the digital radio multiplex transmitter licensee must:

                     (a)  within 90 days after the digital radio start‑up day for the designated BSA radio area, ascertain the level of demand for access to that excess multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and

                     (b)  by notice published on the licensee’s website:

                              (i)  give at least 30 days notice of the licensee’s intention to ascertain the level of demand as mentioned in paragraph (a); and

                             (ii)  invite content service providers to express an interest in having access to that excess multiplex capacity.

Subsequent level of demand for access to excess multiplex capacity may be ascertained

             (3)  If paragraph (1)(b) applies, the following provisions have effect:

                     (a)  the digital radio multiplex transmitter licensee may ascertain the level of demand for access to that excess multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and

                     (b)  if the licensee proposes to ascertain the level of demand as mentioned in paragraph (a)—the digital radio multiplex transmitter licensee must, by notice published on the licensee’s website:

                              (i)  give at least 30 days notice of the licensee’s intention to ascertain the level of demand as mentioned in paragraph (a); and

                             (ii)  invite content service providers to express an interest in having access to that excess multiplex capacity.

Demand falls short of excess multiplex capacity

             (4)  If the demand from interested content service providers for access to that excess multiplex capacity, as ascertained under whichever of subsection (2) or (3) is applicable, falls short of that excess multiplex capacity—each interested content service provider:

                     (a)  is entitled to access to the fraction of multiplex capacity sought by the interested content service provider (which entitlement is called an excess‑capacity access entitlement); and

                     (b)  may only use that excess‑capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and

                     (c)  may transfer that excess‑capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area.

             (5)  The excess‑capacity access entitlement referred to in paragraph (4)(a) commences:

                     (a)  at the end of the 30‑day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection (2) or (3) is applicable; or

                     (b)  if the digital radio multiplex transmitter licensee agrees to an earlier time—at that earlier time.

Demand is greater than excess multiplex capacity

             (6)  If the demand from interested content service providers for access to that excess multiplex capacity, as ascertained under whichever of subsection (2) or (3) is applicable, is greater than that excess multiplex capacity, the digital radio multiplex transmitter licensee must:

                     (a)  use an open and transparent auction process to determine which content service providers are to have access to which fractions of multiplex capacity for the purpose of providing one or more content services in the designated BSA radio area; and

                     (b)  do so before the end of the 60‑day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection (2) or (3) is applicable.

             (7)  If, as a result of an auction process mentioned in subsection (6), a content service provider is to have access to a particular fraction of multiplex capacity, the content service provider:

                     (a)  is entitled to access to that fraction of multiplex capacity (which entitlement is called an excess‑capacity access entitlement); and

                     (b)  may only use that excess‑capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and

                     (c)  may transfer that excess‑capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area.

             (8)  The excess‑capacity access entitlement referred to in paragraph (7)(a) commences:

                     (a)  at the end of the 30‑day period beginning on the day on which the auction process mentioned in subsection (6) is completed; or

                     (b)  if the digital radio multiplex transmitter licensee agrees to an earlier time—at that earlier time.

             (9)  For the purposes of the application of paragraph (8)(a) to a content service provider, the auction process mentioned in subsection (6) is completed when the content service provider makes the relevant auction payment.

           (10)  If an excess‑capacity access entitlement is transferred as mentioned in paragraph (4)(c) or (7)(c):

                     (a)  the excess‑capacity access entitlement may be further transferred, or successively transferred, so long as the holder for the time being of the excess‑capacity access entitlement is a content service provider who is entitled to provide content services in the designated BSA radio area; and

                     (b)  the holder for the time being of the excess‑capacity access entitlement is entitled to access to the relevant fraction of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing one or more content services in the designated BSA radio area.

           (11)  This section has effect subject to section 118NV.

118NU  Distributed‑capacity access entitlements etc.

Scope

             (1)  This section applies to a non‑foundation digital radio multiplex transmitter licence for a designated BSA radio area if an access undertaking is in force for the licence.

Initial level of demand for access to multiplex capacity must be ascertained

             (2)  The following provisions have effect:

                     (a)  the digital radio multiplex transmitter licensee must, before commencing to transmit a content service, ascertain the level of demand for access to multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and

                     (b)  if the licensee proposes to ascertain the level of demand as mentioned in paragraph (a)—the digital radio multiplex transmitter licensee must, by notice published on the licensee’s website:

                              (i)  give at least 30 days notice of the licensee’s intention to ascertain the level of demand as mentioned in paragraph (a); and

                             (ii)  invite content service providers to express an interest in having access to that multiplex capacity.

Subsequent level of demand for access to multiplex capacity may be ascertained

             (3)  The following provisions have effect:

                     (a)  the digital radio multiplex transmitter licensee may, at any time after commencing to transmit a content service, ascertain the level of demand for access to multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and

                     (b)  if the licensee proposes to ascertain the level of demand as mentioned in paragraph (a)—the digital radio multiplex transmitter licensee must, by notice published on the licensee’s website:

                              (i)  give at least 30 days notice of the licensee’s intention to ascertain the level of demand as mentioned in paragraph (a); and

                             (ii)  invite content service providers to express an interest in having access to that multiplex capacity.

Demand falls short of multiplex capacity

             (4)  If the demand from interested content service providers for access to multiplex capacity, as ascertained under whichever of subsection (2) or (3) is applicable, falls short of the multiplex capacity—each interested content service provider:

                     (a)  is entitled to access to the fraction of multiplex capacity sought by the interested content service provider (which entitlement is called a distributed‑capacity access entitlement); and

                     (b)  may only use that distributed‑capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and

                     (c)  may transfer that distributed‑capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area.

             (5)  The distributed‑capacity access entitlement referred to in paragraph (4)(a) commences:

                     (a)  at the end of the 30‑day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection (2) or (3) is applicable; or

                     (b)  if the digital radio multiplex transmitter licensee agrees to an earlier time—at that earlier time.

Demand is greater than multiplex capacity

             (6)  If the demand from interested content service providers for access to multiplex capacity, as ascertained under whichever of subsection (2) or (3) is applicable, is greater than the multiplex capacity, the digital radio multiplex transmitter licensee must:

                     (a)  use an open and transparent auction process to determine which content service providers are to have access to which fractions of multiplex capacity for the purpose of providing one or more content services in the designated BSA radio area; and

                     (b)  do so before the end of the 60‑day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection (2) or (3) is applicable.

             (7)  If, as a result of an auction process mentioned in subsection (6), a content service provider is to have access to a particular fraction of multiplex capacity, the content service provider:

                     (a)  is entitled to access to that fraction of multiplex capacity (which entitlement is called a distributed‑capacity access entitlement); and

                     (b)  may only use that distributed‑capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and

                     (c)  may transfer that distributed‑capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area.

             (8)  The distributed‑capacity access entitlement referred to in paragraph (7)(a) commences:

                     (a)  at the end of the 30‑day period beginning on the day on which the auction process mentioned in subsection (6) is completed; or

                     (b)  if the digital radio multiplex transmitter licensee agrees to an earlier time—at that earlier time.

             (9)  For the purposes of the application of paragraph (8)(a) to a content service provider, the auction process mentioned in subsection (6) is completed when the content service provider makes the relevant auction payment.

           (10)  If a distributed‑capacity access entitlement is transferred as mentioned in paragraph (4)(c) or (7)(c):

                     (a)  the distributed‑capacity access entitlement may be further transferred, or successively transferred, so long as the holder for the time being of the distributed‑capacity access entitlement is a content service provider who is entitled to provide content services in the designated BSA radio area; and

                     (b)  the holder for the time being of the distributed‑capacity access entitlement is entitled to access to the relevant fraction of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing one or more content services in the designated BSA radio area.

           (11)  This section has effect subject to section 118NV.

118NV  Capacity cap—digital commercial radio broadcasting licensees

             (1)  If there is only one digital radio multiplex transmitter licence for a designated BSA radio area, a digital commercial radio broadcasting licensee is not entitled to access to more than two‑ninths of multiplex capacity under the digital radio multiplex transmitter licence for the purposes of providing, under the digital commercial radio broadcasting licence, one or more digital commercial digital radio broadcasting services in the designated BSA radio area.

             (2)  If there are 2 or more digital radio multiplex transmitter licences for a designated BSA radio area, a digital commercial radio broadcasting licensee is not entitled to access to more than the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences for the purposes of providing, under the digital commercial radio broadcasting licence, one or more digital commercial digital radio broadcasting services in the designated BSA radio area.

             (3)  For the purposes of subsection (2), the designated fraction of the total multiplex capacities under those digital radio multiplex transmitter licences is as follows:

                  

118NW  Suspension of access entitlements

             (1)  A standard access entitlement that relates to a digital radio multiplex transmitter licence is suspended while the licence is suspended.

             (2)  An excess‑capacity access entitlement that relates to a digital radio multiplex transmitter licence is suspended while the licence is suspended.

             (3)  A distributed‑capacity access entitlement that relates to a digital radio multiplex transmitter licence is suspended while the licence is suspended.

118NX  Transfer of digital radio multiplex transmitter licence

Standard access entitlement

             (1)  To avoid doubt, if:

                     (a)  a content service provider has a standard access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and

                     (b)  the licence is transferred;

the transfer does not affect the continuity of the standard access entitlement.

             (2)  Subsection (1) does not prevent:

                     (a)  the transfer of a standard access entitlement under subsection 118NS(2) or (3); or

                     (b)  the revocation of a notice given under subsection 118NR(3), (7) or (10).

Excess‑capacity access entitlement

             (3)  To avoid doubt, if:

                     (a)  a content service provider has an excess‑capacity access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and

                     (b)  the licence is transferred;

the transfer does not affect the continuity of the excess‑capacity access entitlement.

             (4)  Subsection (3) does not prevent the transfer of an excess‑capacity access entitlement.

Distributed‑capacity access entitlement

             (5)  To avoid doubt, if:

                     (a)  a content service provider has a distributed‑capacity access entitlement in relation to a fraction of multiplex capacity under a digital radio multiplex transmitter licence; and

                     (b)  the licence is transferred;

the transfer does not affect the continuity of the distributed‑capacity access entitlement.

             (6)  Subsection (5) does not prevent the transfer of a distributed‑capacity access entitlement.

118NY  Renewal of digital radio multiplex transmitter licence

Standard access entitlement

             (1)  If:

                     (a)  a digital radio multiplex transmitter licence is renewed; and

                     (b)  immediately before the expiry of the original licence, a content service provider held a standard access entitlement in relation to a fraction of multiplex capacity under the licence;

the entitlement remains in existence while the new licence is in force, as if it were a standard access entitlement in relation to the new licence.

             (2)  Subsection (1) does not prevent:

                     (a)  the transfer of a standard access entitlement under subsection 118NS(2) or (3); or

                     (b)  the revocation of a notice given under subsection 118NR(3), (7) or (10).

Excess‑capacity access entitlement

             (3)  If:

                     (a)  a digital radio multiplex transmitter licence is renewed; and

                     (b)  immediately before the expiry of the original licence, a content service provider held an excess‑capacity access entitlement in relation to a fraction of multiplex capacity under the licence;

the entitlement remains in existence while the new licence is in force, as if it were an excess‑capacity access entitlement in relation to the new licence.

             (4)  Subsection (3) does not prevent the transfer of an excess‑capacity access entitlement.

Distributed‑capacity access entitlement

             (5)  If:

                     (a)  a digital radio multiplex transmitter licence is renewed; and

                     (b)  immediately before the expiry of the original licence, a content service provider held a distributed‑capacity access entitlement in relation to a fraction of multiplex capacity under the licence;

the entitlement remains in existence while the new licence is in force, as if it were a distributed‑capacity access entitlement in relation to the new licence.

             (6)  Subsection (5) does not prevent the transfer of a distributed‑capacity access entitlement.

Subdivision DEnforcement

118NZ  Judicial enforcement of access obligations etc.

             (1)  If the Federal Court is satisfied that a digital radio multiplex transmitter licensee, or a person authorised by a digital radio multiplex transmitter licensee to operate a multiplex transmitter under the licence, has contravened any of the following obligations:

                     (a)  the standard access obligations (if any) that are applicable to the licence;

                     (b)  the excess‑capacity access obligations (if any) that are applicable to the licence;

                     (c)  the distributed‑capacity access obligations (if any) that are applicable to the licence;

                     (d)  the obligations that are applicable to the licence under section 118NP;

the Court may, on the application of:

                     (e)  the ACCC; or

                      (f)  any person whose interests are affected by the contravention;

make all or any of the following orders:

                     (g)  an order directing the licensee or the person so authorised to comply with the obligation;

                     (h)  an order directing the licensee or the person so authorised to compensate any other person who had suffered loss or damage as a result of the contravention;

                      (i)  any other order that the Court thinks appropriate.

             (2)  The Federal Court may discharge or vary an order granted under this section.

118P  Enforcement of access undertakings

             (1)  This section applies if an access undertaking is in force in relation to a digital radio multiplex transmitter licence.

             (2)  If:

                     (a)  the ACCC; or

                     (b)  a person (the affected person) whose interests are affected by the access undertaking;

thinks that another person (the third person) has breached the access undertaking, the ACCC or the affected person may apply to the Federal Court for an order under subsection (3).

             (3)  If the Federal Court is satisfied that the third person has breached the access undertaking, the Court may make all or any of the following orders:

                     (a)  an order directing the third person to comply with the access undertaking;

                     (b)  an order directing the third person to compensate any other person who has suffered loss or damage as a result of the breach;

                     (c)  any other order that the Court thinks appropriate.

             (4)  The Federal Court may discharge or vary an order granted under this section.

Subdivision EExternal audits

118PA  External audits

Scope

             (1)  This section applies if:

                     (a)  an access undertaking is in force in relation to a digital radio multiplex transmitter licence; and

                     (b)  a person is:

                              (i)  the licensee of the licence; or

                             (ii)  a person authorised by the licensee to operate a multiplex transmitter under the licence; and

                     (c)  the ACCC has reasonable grounds to suspect that the person has breached, is breaching, or is proposing to breach:

                              (i)  the access undertaking; or

                             (ii)  any of the standard access obligations (if any) that are applicable to the licence; or

                            (iii)  any of the excess‑capacity access obligations (if any) that are applicable to the licence; or

                            (iv)  any of the distributed‑capacity access obligations (if any) that are applicable to the licence; or

                             (v)  the obligations that are applicable to the licence under section 118NP.

Requirement

             (2)  The ACCC may, by written notice given to the person, require the person to:

                     (a)  appoint an external auditor; and

                     (b)  arrange for the external auditor to carry out an external audit of whichever of the following is specified in the notice:

                              (i)  the person’s compliance with the access undertaking; or

                             (ii)  one or more specified aspects of the person’s compliance with the access undertaking; or

                            (iii)  the person’s compliance with the standard access obligations (if any) that are applicable to the licence; or

                            (iv)  one or more specified aspects of the person’s compliance with the standard access obligations (if any) that are applicable to the licence; or

                             (v)  the person’s compliance with the excess‑capacity access obligations (if any) that are applicable to the licence; or

                            (vi)  one or more specified aspects of the person’s compliance with the excess‑capacity access obligations (if any) that are applicable to the licence; or

                           (vii)  the person’s compliance with the distributed‑capacity access obligations (if any) that are applicable to the licence; or

                          (viii)  one or more specified aspects of the person’s compliance with the distributed‑capacity access obligations (if any) that are applicable to the licence; or

                            (ix)  the person’s compliance with the obligations that are applicable to the licence under section 118NP; or

                             (x)  one or more specified aspects of the person’s compliance with the obligations that are applicable to the licence under section 118NP; and

                     (c)  arrange for the external auditor to give the person a written report (the audit report) setting out the results of the audit; and

                     (d)  give the ACCC a copy of the audit report within:

                              (i)  the period specified in the notice; or

                             (ii)  if the ACCC allows a longer period—that longer period.

             (3)  The notice must specify:

                     (a)  the matters to be covered by the audit; and

                     (b)  the form of the audit report and the kinds of details it is to contain.

             (4)  The matters that may be specified under paragraph (3)(a) may include any or all of the following:

                     (a)  an assessment of the person’s existing capacity to comply with the access undertaking;

                     (b)  an assessment of what the person will need to do, or continue to do, to comply with the access undertaking;

                     (c)  an assessment of the person’s existing capacity to comply with the standard access obligations (if any) that are applicable to the licence;

                     (d)  an assessment of what the person will need to do, or continue to do, to comply with the standard access obligations (if any) that are applicable to the licence;

                     (e)  an assessment of the person’s existing capacity to comply with the excess‑capacity obligations (if any) that are applicable to the licence;

                      (f)  an assessment of what the person will need to do, or continue to do, to comply with the excess‑capacity obligations (if any) that are applicable to the licence;

                     (g)  an assessment of the person’s existing capacity to comply with the distributed‑capacity obligations (if any) that are applicable to the licence;

                     (h)  an assessment of what the person will need to do, or continue to do, to comply with the distributed‑capacity obligations (if any) that are applicable to the licence;

                      (i)  an assessment of the person’s existing capacity to comply with the obligations that are applicable to the licence under section 118NP;

                      (j)  an assessment of what the person will need to do, or continue to do, to comply with the obligations that are applicable to the licence under section 118NP.

             (5)  Subsection (4) does not limit paragraph (3)(a).

Compliance

             (6)  The person must comply with a notice under subsection (2).

118PB  Eligibility for appointment

             (1)  An individual is not eligible to be appointed by a person (the first person) in accordance with a requirement covered by paragraph 118PA(2)(a) if the individual is an officer, employee or agent of:

                     (a)  the first person; or

                     (b)  another person who is in a position to exercise control of the digital radio multiplex transmitter licence concerned; or

                     (c)  a company, where another person is in a position to exercise control of the company and the digital radio multiplex transmitter licence concerned.

Application of control rules

             (2)  Schedule 1 to the Broadcasting Services Act 1992 applies for the purposes of paragraphs (1)(b) and (c) in a corresponding way to the way in which it applies for the purposes of Part 5 of that Act.

118PC  External auditor may have regard to the results of previous audit

                   In carrying out an external audit in accordance with a notice under section 118PA, an external auditor may, if:

                     (a)  an external audit was completed under that section within the last preceding 2 years; and

                     (b)  the external auditor is satisfied that the previous audit is still relevant;

have regard to the results of the previous audit.

118PD  External auditors

             (1)  The ACCC may, by writing, authorise a specified individual to be an external auditor for the purposes of this Division.

Note 1:       For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901.

Note 2:       For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

             (2)  An authorisation under subsection (1) is not a legislative instrument.

Subdivision FReview of decisions

118PE  Review by Australian Competition Tribunal

             (1)  A person whose interests are affected by a decision of the ACCC under subsection 118NF(2) or (5) or 118NH(3), (6) or (11) may apply in writing to the Australian Competition Tribunal for a review of the decision.

             (2)  The application must be made within 21 days after the ACCC made the decision.

             (3)  The Australian Competition Tribunal must review the decision.

118PF  Functions and powers of Australian Competition Tribunal

Decision on review

             (1)  On a review of a decision of the ACCC under subsection 118NF(2) or (5) or 118NH(3), (6) or (11), the Australian Competition Tribunal may make a decision:

                     (a)  in any case—affirming the ACCC’s decision; or

                     (b)  in the case of a review of a decision of the ACCC under subsection 118NF(2) to accept an access undertaking—setting aside the ACCC’s decision; or

                     (c)  in the case of a review of a decision of the ACCC under subsection 118NF(2) to reject an access undertaking—both:

                              (i)  setting aside the ACCC’s decision; and

                             (ii)  in substitution for the decision so set aside, to accept the undertaking; or

                     (d)  in the case of a review of a decision of the ACCC to make a determination under subsection 118NF(5)—setting aside the ACCC’s decision; or

                     (e)  in the case of a review of a decision of the ACCC to make a determination under subsection 118NF(5)—both:

                              (i)  setting aside the ACCC’s decision; and

                             (ii)  in substitution for the decision so set aside, to make a determination under that subsection; or

                      (f)  in the case of a review of a decision of the ACCC under subsection 118NH(3) to accept a variation of an access undertaking—setting aside the ACCC’s decision; or

                     (g)  in the case of a review of a decision of the ACCC under subsection 118NH(3) to reject a variation of an access undertaking—both:

                              (i)  setting aside the ACCC’s decision; and

                             (ii)  in substitution for the decision so set aside, to accept the variation; or

                     (h)  in the case of a review of a decision of the ACCC to make a determination under subsection 118NH(6) or (11)—setting aside the ACCC’s decision; or

                      (i)  in the case of a review of a decision of the ACCC to make a determination under subsection 118NH(6) or (11)—both:

                              (i)  setting aside the ACCC’s decision; and

                             (ii)  in substitution for the decision so set aside, to make a determination under that subsection;

and, for the purposes of the review, the Australian Competition Tribunal may perform all the functions and exercise all the powers of the ACCC.

             (2)  A decision by the Australian Competition Tribunal:

                     (a)  affirming a decision of the ACCC; or

                     (b)  setting aside a decision of the ACCC; or

                     (c)  made in substitution for a decision of the ACCC;

is taken, for the purposes of this Act (other than section 118PE or this section), to be a decision of the ACCC.

Conduct of review

             (3)  For the purposes of a review by the Australian Competition Tribunal, the member of the Australian Competition Tribunal presiding at the review may require the ACCC to give such information, make such reports and provide such other assistance to the Australian Competition Tribunal as the member specifies.

             (4)  For the purposes of a review, the Australian Competition Tribunal may have regard only to:

                     (a)  any information given, documents produced or evidence given to the ACCC in connection with the making of the decision to which the review relates; and

                     (b)  any other information that was referred to in the ACCC’s reasons for making the decision to which the review relates.

Australian Competition Tribunal to make decision within 6 months

             (5)  If:

                     (a)  a person applies to the Australian Competition Tribunal for a review of a decision of the ACCC under subsection 118NF(2) or (5) or 118NH(3), (6) or (11); and

                     (b)  the Australian Competition Tribunal does not make a decision under subsection (1) of this section on the review within 6 months after receiving the application for review;

the Australian Competition Tribunal is taken to have made, at the end of that 6‑month period, whichever of the following decisions is applicable:

                     (c)  in the case of a review of a decision of the ACCC under subsection 118NF(2) to accept an access undertaking—a decision setting aside the ACCC’s decision;

                     (d)  in the case of a review of a decision of the ACCC under subsection 118NF(2) to reject an access undertaking:

                              (i)  a decision setting aside the ACCC’s decision; and

                             (ii)  in substitution for the decision so set aside, a decision to accept the undertaking;

                     (e)  in the case of a review of a decision of the ACCC to make a determination under subsection 118NF(5)—a decision setting aside the ACCC’s decision; or

                      (f)  in the case of a review of a decision of the ACCC under subsection 118NH(3) to accept a variation of an access undertaking—a decision setting aside the ACCC’s decision;

                     (g)  in the case of a review of a decision of the ACCC under subsection 118NH(3) to reject a variation of an access undertaking:

                              (i)  a decision setting aside the ACCC’s decision; and

                             (ii)  in substitution for the decision so set aside, a decision to accept the variation;

                     (h)  in the case of a review of a decision of the ACCC to make a determination under subsection 118NH(6) or (11)—a decision setting aside the ACCC’s decision.

Extension of decision‑making period

             (6)  The Australian Competition Tribunal may, by written notice given to the applicant for review, extend or further extend the 6‑month period referred to in subsection (5), so long as:

                     (a)  the extension or further extension is for a period of not more than 3 months; and

                     (b)  the notice includes a statement explaining why the Australian Competition Tribunal has been unable to make a decision on the review within that 6‑month period or that 6‑month period as previously extended, as the case may be.

             (7)  As soon as practicable after the Australian Competition Tribunal gives a notice under subsection (6), the Australian Competition Tribunal must cause a copy of the notice to be made available on the internet.

Time of acceptance of undertaking

             (8)  To avoid doubt, if the Australian Competition Tribunal makes a decision to accept an access undertaking, the time of acceptance of the undertaking is the time when the Australian Competition Tribunal made its decision.

Note:          Division 2 of Part IX of the Competition and Consumer Act 2010 applies to proceedings before the Australian Competition Tribunal.

118PG  Provisions that do not apply in relation to a Australian Competition Tribunal review

                   Division 1 of Part IX of the Competition and Consumer Act 2010 does not apply in relation to a review by the Australian Competition Tribunal of a decision made by the ACCC under subsection 118NF(2) or (5) or 118NH(3), (6) or (11).

118PH  Statement of reasons for reviewable decision—specification of documents

             (1)  If the ACCC:

                     (a)  makes a decision referred to in section 118PE; and

                     (b)  gives a person a written statement setting out the reasons for the decision;

the statement must specify the documents that the ACCC examined in the course of making the decision.

             (2)  If a document is specified under subsection (1), information in the document is taken, for the purposes of paragraph 118PF(4)(b), to be referred to in the ACCC’s reasons for making the decision.

Subdivision GInjunctions

118PI  Injunctions

Restraining injunctions

             (1)  If:

                     (a)  a person is:

                              (i)  a digital radio multiplex transmitter licensee; or

                             (ii)  a person authorised by a digital radio multiplex transmitter licensee to operate a multiplex transmitter under the licence; and

                     (b)  the person has engaged, is engaging or is proposing to engage, in any conduct in contravention of this Division;

the Federal Court may, on the application of the ACCC, grant an injunction:

                     (c)  restraining the person from engaging in the conduct; and

                     (d)  if, in the court’s opinion, it is desirable to do so—requiring the person to do something.

Performance injunctions

             (2)  If:

                     (a)  a person is:

                              (i)  a digital radio multiplex transmitter licensee; or

                             (ii)  a person authorised by a digital radio multiplex transmitter licensee to operate a multiplex transmitter under the licence; and

                     (b)  the person has refused or failed, or is refusing or failing, or is proposing to refuse or fail, to do an act or thing; and

                     (c)  the refusal or failure was, is or would be a contravention of this Division;

the Federal Court may, on the application of the ACCC, grant an injunction requiring the person to do that act or thing.

118PJ  Interim injunctions

Grant of interim injunction

             (1)  If an application is made to the Federal Court for an injunction under section 118PI against a person who is:

                     (a)  a digital radio multiplex transmitter licensee; or

                     (b)  a person authorised by a digital radio multiplex transmitter licensee to operate a multiplex transmitter under the licence;

the court may, before considering the application, grant an interim injunction restraining the person from engaging in conduct of a kind referred to in that section.

No undertakings as to damages

             (2)  The Federal Court is not to require an applicant for an injunction under section 118PI, as a condition of granting an interim injunction, to give any undertakings as to damages.

118PK  Discharge or variation of injunctions

                   The Federal Court may discharge or vary an injunction granted under this Subdivision.

118PL  Certain limits on granting injunctions not to apply

Restraining injunctions

             (1)  The power of the Federal Court under this Subdivision to grant an injunction restraining a person from engaging in conduct of a particular kind may be exercised:

                     (a)  if the court is satisfied that the person has engaged in conduct of that kind—whether or not it appears to the court that the person intends to engage again, or to continue to engage, in conduct of that kind; or

                     (b)  if it appears to the court that, if an injunction is not granted, it is likely that the person will engage in conduct of that kind—whether or not the person has previously engaged in conduct of that kind and whether or not there is an imminent danger of substantial damage to any person if the person engages in conduct of that kind.

Performance injunctions

             (2)  The power of the Federal Court to grant an injunction requiring a person to do an act or thing may be exercised:

                     (a)  if the court is satisfied that the person has refused or failed to do that act or thing—whether or not it appears to the court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; or

                     (b)  if it appears to the court that, if an injunction is not granted, it is likely that the person will refuse or fail to do that act or thing—whether or not the person has previously refused or failed to do that act or thing and whether or not there is an imminent danger of substantial damage to any person if the person refuses or fails to do that act or thing.

118PM  Other powers of the Federal Court unaffected

                   The powers conferred on the Federal Court under this Subdivision are in addition to, and not instead of, any other powers of the court, whether conferred by this Act or otherwise.

Subdivision HMiscellaneous

118PN  Annual reports

             (1)  This section applies if an access undertaking in relation to a digital radio multiplex transmitter licence was in force during the whole or a part of a financial year.

             (2)  The licensee must, within 60 days after the end of the financial year, give the ACCC a report about such matters as:

                     (a)  are specified in the Procedural Rules; and

                     (b)  relate to:

                              (i)  compliance during that financial year with the access undertaking; or

                             (ii)  compliance during that financial year with the standard access obligations (if any) applicable to the licence; or

                            (iii)  compliance during that financial year with the excess‑capacity access obligations (if any) applicable to the licence; or

                            (iv)  compliance during that financial year with the distributed‑capacity access obligations (if any) applicable to the licence; or

                             (v)  compliance during that financial year with the obligations that are applicable to the licence under section 118NP.

118PO  Procedural Rules

             (1)  The ACCC may, by legislative instrument, make rules:

                     (a)  making provision for, or in relation to, the practice and procedure to be followed by the ACCC in performing functions, or exercising powers, under this Division; or

                     (b)  making provision for, or in relation to, all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business of the ACCC under this Division; or

                     (c)  prescribing matters required or permitted by any other provision of this Division to be prescribed by the Procedural Rules.

             (2)  Rules under subsection (1) are to be known as Procedural Rules.

             (3)  The Procedural Rules may make provision for, or in relation to, any or all of the following:

                     (a)  the confidentiality of information or documents given to the ACCC by a person who gave the ACCC an access undertaking or a variation of an access undertaking;

                     (b)  the form and content of access undertakings, variations or other documents given to the ACCC under this Division;

                     (c)  requiring the ACCC to give information to the ACMA about the operation of this Division;

                     (d)  requiring the ACMA to give information to the ACCC that is relevant to the operation of this Division.

             (4)  The Procedural Rules may make provision for, or in relation to, a matter by empowering the ACCC to make decisions of an administrative character.

             (5)  The Procedural Rules may provide that the ACCC may refuse to consider an access undertaking if:

                     (a)  the ACCC is satisfied that the access undertaking:

                              (i)  is frivolous; or

                             (ii)  is vexatious; or

                            (iii)  was not given in good faith; or

                     (b)  the ACCC has reason to believe that the access undertaking was given for the purpose, or for purposes that include the purpose, of frustrating or undermining the effective administration of this Division.

             (6)  Subsections (3), (4) and (5) do not limit subsection (1).

118PP  Constitutional safety net

             (1)  If the operation of this Division or section 109C would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

Division 4CAccess to broadcasting transmission towers etc. by digital radio multiplex transmitter licensees and authorised persons

Subdivision AIntroduction

118Q  Simplified outline

                   The following is a simplified outline of this Division:

•      The owner or operator of a broadcasting transmission tower must provide the following persons with access to the tower:

               (a)     digital radio multiplex transmitter licensees;

              (b)     persons authorised by digital radio multiplex transmitter licensees under section 114.

•      The owner or operator of a designated associated facility must provide the following persons with access to the facility:

               (a)     digital radio multiplex transmitter licensees;

              (b)     persons authorised by digital radio multiplex transmitter licensees under section 114.

•      The owner or operator of a broadcasting transmission tower must provide the following persons with access to the site of the tower:

               (a)     digital radio multiplex transmitter licensees;

              (b)     persons authorised by digital radio multiplex transmitter licensees under section 114.

118QA  Definitions

                   In this Division:

broadcasting transmission tower has the same meaning as in Schedule 4 to the Broadcasting Services Act 1992.

designated associated facility has the meaning given by section 118QB.

designated content service means a service mentioned in paragraph 109B(1)(f), (g) or (h).

facility includes apparatus, equipment, a structure, a line or an electricity cable or wire.

site means:

                     (a)  land; or

                     (b)  a building on land; or

                     (c)  a structure on land.

118QB  Designated associated facilities

                   For the purposes of this Division, a designated associated facility means any of the following facilities:

                     (a)  an antenna;

                     (b)  a combiner;

                     (c)  a feeder system;

                     (d)  a facility of a kind specified in the regulations;

where:

                     (e)  the facility is, or is to be, associated with a radiocommunications transmitter; and

                      (f)  the facility is used, or capable of being used, in connection with the transmission of one or more designated content services.

118QC  Extended meaning of access

             (1)  For the purposes of this Division, giving access to a broadcasting transmission tower includes replacing the tower with another tower located on the same site and giving access to the replacement tower.

             (2)  For the purposes of this Division, giving access to a designated associated facility includes:

                     (a)  replacing the facility with another facility located on the same site and giving access to the replacement facility; or

                     (b)  giving access to a service provided by means of the designated associated facility.

             (3)  For the purposes of this Division, giving access to a site on which is situated a broadcasting transmission tower includes replacing the tower with another tower located on the site.

Subdivision BAccess to broadcasting transmission towers etc. by digital radio multiplex transmitter licensees

118QD  Access to broadcasting transmission towers

             (1)  The owner or operator of a broadcasting transmission tower must, if requested to do so by a person (the access seeker) who is:

                     (a)  a digital radio multiplex transmitter licensee; or

                     (b)  a person authorised by a digital radio multiplex transmitter licensee under section 114;

give the access seeker access to the tower.

             (2)  The owner or operator of the broadcasting transmission tower is not required to comply with subsection (1) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to install or maintain either or both of the following:

                              (i)  a multiplex transmitter;

                             (ii)  associated facilities;

                            used, or for use, wholly or principally in connection with the transmission of one or more designated content services in accordance with the digital radio multiplex transmitter licence concerned; and

                     (b)  the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Compliance not technically feasible

             (3)  The owner or operator of a broadcasting transmission tower is not required to comply with subsection (1) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subsection (1) in relation to that tower is not technically feasible.

             (4)  In determining whether compliance with subsection (1) in relation to a tower is technically feasible, the ACMA must have regard to:

                     (a)  whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

                     (b)  whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, the tower; and

                     (c)  if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):

                              (i)  changing the configuration or operating parameters of a facility situated on the tower; and

                             (ii)  making alterations to the tower; and

                     (d)  such other matters (if any) as the ACMA considers relevant.

Issue of certificate

             (5)  If the ACMA receives a request to make a decision about the issue of a certificate under subsection (3), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.

118QE  Access to designated associated facilities

Scope

             (1)  This section applies to a designated associated facility if the facility is situated on, at, in or under:

                     (a)  a broadcasting transmission tower; or

                     (b)  the site on which a broadcasting transmission tower is situated.

Access to designated associated facilities

             (2)  The owner or operator of the designated associated facility must, if requested to do so by a person (the access seeker) who is:

                     (a)  a digital radio multiplex transmitter licensee; or

                     (b)  a person authorised by a digital radio multiplex transmitter licensee under section 114;

 give the access seeker access to the facility.

             (3)  The owner or operator of the designated associated facility is not required to comply with subsection (2) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to use:

                              (i)  the facility; or

                             (ii)  a service provided by means of the facility;

                            wholly or principally in connection with the transmission of one or more designated content services in accordance with the digital radio multiplex transmitter licence concerned; and

                     (b)  the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Compliance not technically feasible

             (4)  The owner or operator of a designated associated facility is not required to comply with subsection (2) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subsection (2) in relation to that facility is not technically feasible.

             (5)  In determining whether compliance with subsection (2) in relation to a facility is technically feasible, the ACMA must have regard to:

                     (a)  whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

                     (b)  whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and

                     (c)  if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):

                              (i)  changing the configuration or operating parameters of a facility situated on the site; and

                             (ii)  making alterations to a facility situated on the site; and

                     (d)  such other matters (if any) as the ACMA considers relevant.

Issue of certificate

             (6)  If the ACMA receives a request to make a decision about the issue of a certificate under subsection (4), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.

Exemptions

             (7)  The regulations may provide for exemptions from subsection (2).

             (8)  Regulations made for the purposes of subsection (7) may make provision with respect to a matter by conferring on the ACCC a power to make a decision of an administrative character.

118QF  Access to sites of broadcasting transmission towers

             (1)  The owner or operator of a broadcasting transmission tower must, if requested to do so by a person (the access seeker) who is:

                     (a)  a digital radio multiplex transmitter licensee; or

                     (b)  a person authorised by a digital radio multiplex transmitter licensee under section 114;

 give the access seeker access to a site if:

                     (c)  the tower is situated on the site; and

                     (d)  either:

                              (i)  the site is owned, occupied or controlled by the owner or operator of the tower; or

                             (ii)  the owner or operator of the tower has a right (either conditional or unconditional) to use the site.

             (2)  The owner or operator of the broadcasting transmission tower is not required to comply with subsection (1) unless:

                     (a)  the access is provided for the sole purpose of enabling the access seeker to install or maintain either or both of the following:

                              (i)  a multiplex transmitter;

                             (ii)  associated facilities;

                            used, or for use, wholly or principally in connection with the transmission of one or more designated content services in accordance with the digital radio multiplex transmitter licence concerned; and

                     (b)  the access seeker gives the owner or operator reasonable notice that the access seeker requires the access.

Compliance not technically feasible

             (3)  The owner or operator of a broadcasting transmission tower is not required to comply with subsection (1) if there is in force a written certificate issued by the ACMA stating that, in the ACMA’s opinion, compliance with subsection (1) in relation to that tower is not technically feasible.

             (4)  In determining whether compliance with subsection (1) in relation to a site is technically feasible, the ACMA must have regard to:

                     (a)  whether compliance is likely to result in significant difficulties of a technical or engineering nature; and

                     (b)  whether compliance is likely to result in a significant threat to the health or safety of persons who operate, or work on, a facility situated on the site; and

                     (c)  if compliance is likely to have a result referred to in paragraph (a) or (b)—whether there are practicable means of avoiding such a result, including (but not limited to):

                              (i)  changing the configuration or operating parameters of a facility situated on the site; and

                             (ii)  making alterations to a facility situated on the site; and

                     (d)  such other matters (if any) as the ACMA considers relevant.

Issue of certificate

             (5)  If the ACMA receives a request to make a decision about the issue of a certificate under subsection (3), the ACMA must use its best endeavours to make that decision within 10 business days after the request was made.

118QG  Terms and conditions of access

Access to broadcasting transmission towers

             (1)  The owner or operator of a broadcasting transmission tower must comply with subsection 118QD(1) on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the owner or operator;

                             (ii)  the access seeker (within the meaning of that subsection); or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

Access to designated associated facilities

             (2)  The owner or operator of a designated associated facility must comply with subsection 118QE(2) on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the owner or operator;

                             (ii)  the access seeker (within the meaning of that subsection); or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

Access to sites of broadcasting transmission towers

             (3)  The owner or operator of a broadcasting transmission tower must comply with subsection 118QF(1) on such terms and conditions as are:

                     (a)  agreed between the following parties:

                              (i)  the owner or operator;

                             (ii)  the access seeker (within the meaning of that subsection); or

                     (b)  failing agreement, determined by an arbitrator appointed by the parties.

If the parties fail to agree on the appointment of an arbitrator, the ACCC is to be the arbitrator.

Conduct of arbitration

             (4)  The regulations may make provision for and in relation to the conduct of an arbitration under this section.

             (5)  The regulations may provide that, for the purposes of a particular arbitration conducted by the ACCC under this section, the ACCC may be constituted by a single member, or a specified number of members, of the ACCC. For each such arbitration, that member or those members are to be nominated in writing by the Chair of the ACCC.

             (6)  Subsection (5) does not limit subsection (4).

118QH  Code relating to access

             (1)  The ACCC may, by legislative instrument, make a Code setting out conditions that are to be complied with in relation to the provision of access under this Division.

             (2)  Before making an instrument under subsection (1), the ACCC must consult:

                     (a)  digital radio multiplex transmitter licensees; and

                     (b)  owners and operators of broadcasting transmission towers; and

                     (c)  owners and operators of designated associated facilities.

             (3)  An access seeker (within the meaning of subsection 118QD(1), 118QE(2) or 118QF(1)) must comply with the Code.

             (4)  The owner or operator of a broadcasting transmission tower must comply with the Code, to the extent to which the Code relates to the provision of access under section 118QD or 118QF.

             (5)  The owner or operator of a designated associated facility must comply with the Code, to the extent to which the Code relates to the provision of access under section 118QE.

Subdivision CMiscellaneous

118QI  Arbitration—acquisition of property

             (1)  This section applies to a provision of this Division that authorises the conduct of an arbitration (whether by the ACCC or another person).

             (2)  The provision has no effect to the extent (if any) to which it purports to authorise the acquisition of property if that acquisition:

                     (a)  is otherwise than on just terms; and

                     (b)  would be invalid because of paragraph 51(xxxi) of the Constitution.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

118QJ  Relationship between this Division and the National Transmission Network Sale Act 1998

                   Part 3 of the National Transmission Network Sale Act 1998 does not apply in relation to an access seeker seeking access to:

                     (a)  a broadcasting transmission tower; or

                     (b)  a site;

to the extent to which this Division applies in relation to the access seeker seeking access to that tower or site.

Division 5Qualified operators

119  ACMA to determine the need for qualified operators

                   The ACMA may determine, by written instrument, that persons operating transmitters under transmitter licences included in a class of transmitter licences specified in the instrument must be qualified operators.

120  Applications for certificates of proficiency

             (1)  A person who wishes to be a qualified operator in relation to one or more such classes of transmitter licences may apply to the ACMA for a certificate of proficiency.

             (2)  The application must be in a form approved by the ACMA.

121  Issuing certificates of proficiency

             (1)  Subject to section 122, the ACMA may issue to the applicant a certificate of proficiency in writing certifying that the holder of the certificate is taken to be a qualified operator in relation to a specified class of transmitter licences.

             (2)  The classes of transmitter licences so specified are to be any or all of the classes of transmitter licences for which determinations under section 119 are in force.

             (3)  If the ACMA refuses to issue a certificate of proficiency, it must give the applicant a written notice of the refusal together with a statement of its reasons.

Note:          Refusals to issue certificates of proficiency are reviewable under Part 5.6.

122  Restrictions on issuing certificates of proficiency

             (1)  The ACMA must not issue a certificate of proficiency unless:

                     (a)  the ACMA is satisfied that the applicant has reached the minimum age in relation to the class of certificates in which the certificate is included; and

                     (b)  the ACMA:

                              (i)  is satisfied that the applicant has achieved satisfactory results in approved examinations or in examinations conducted under the regulations; or

                             (ii)  is satisfied, upon reasonable grounds, that the applicant would probably achieve such results.

             (2)  In this section:

approved examination means an examination conducted by:

                     (a)  the ACMA; or

                     (b)  a body or organisation approved by the ACMA, by written instrument, for the purposes of this section; or

                     (c)  an examination approved by the ACMA, by written instrument, for the purposes of this section.

minimum age, in relation to a class of certificates, means the age that the ACMA, by notice published in the Gazette, declares to be the minimum age for the purposes of this section in relation to that class.

122A  Delegating the power to issue certificates of proficiency

             (1)  The ACMA may, by writing, delegate the power to issue a certificate of proficiency under section 121 to a body or organisation approved by the ACMA as mentioned in paragraph (b) of the definition of approved examination in subsection 122(2).

          (1A)  If, under section 50 of the Australian Communications and Media Authority Act 2005, the ACMA has delegated the power referred to in subsection (1) of this section to a Division of the ACMA, the following provisions have effect:

                     (a)  the Division may delegate the power to a body or organisation referred to in subsection (1) of this section;

                     (b)  subsections 52(2), (3), (4), (5) and (6) of the Australian Communications and Media Authority Act 2005 have effect as if the delegation by the Division were a delegation under section 52 of that Act.

             (2)  However, the delegate is not entitled to make a final decision refusing to issue a certificate of proficiency. If the delegate decides not to issue the certificate, the delegate must refer the application, for a final decision, to:

                     (a)  the ACMA, if the delegation to the delegate was under subsection (1); or

                     (b)  the Division that delegated the power, if the delegation to the delegate was under subsection (1A).

             (3)  The powers conferred on the ACMA by subsection (1), and on a Division of the ACMA by subsection (1A), are in addition to the powers conferred by section 238 of this Act and by sections 50, 51 and 52 of the Australian Communications and Media Authority Act 2005.

123  Re‑examination of qualified operators

             (1)  If, at any time:

                     (a)  the ACMA has reasonable grounds for believing that a qualified operator will probably be unable to achieve satisfactory results in an examination of the kind referred to in paragraph 122(1)(b);

the ACMA may:

                     (b)  give to the operator a written request that the operator submit himself or herself to an examination, or a further examination, of that kind.

             (2)  The request must set out:

                     (a)  particulars of the examination in question; and

                     (b)  the time and place of the examination; and

                     (c)  the effect of subparagraph 124(3)(b)(iii).

124  Cancelling certificates of proficiency

             (1)  The ACMA may, by written notice given to a qualified operator, cancel the operator’s certificate of proficiency.

             (2)  The notice must give the reasons for the cancellation.

             (3)  In deciding whether to cancel the certificate, the ACMA must have regard to:

                     (a)  all matters that it considers relevant; and

                     (b)  without limiting paragraph (a), the following matters:

                              (i)  any matters to which the ACMA must have regard in deciding whether to issue a certificate of proficiency;

                             (ii)  whether the ACMA is satisfied, that the operator has failed to achieve satisfactory results in an examination or further examination referred to in section 123;

                            (iii)  whether the operator has refused or failed, without reasonable excuse, to comply with a request under section 123;

                            (iv)  whether the operator has been convicted of an offence against the regulations;

                          (iva)  whether the operator has been convicted of an offence against section 136.1 or 137.1 of the Criminal Code that relates to this Act;

                             (v)  whether the ACMA is satisfied that the operator has contravened rules relating to the conduct or administration of an examination of the kind referred to in paragraph 122(1)(b).

Note:          Cancellations of certificates of proficiency are reviewable under Part 5.6.

             (4)  If:

                     (a)  a person has been issued with a certificate of proficiency; and

                     (b)  the ACMA subsequently cancels the certificate;

the person must not fail to return the certificate to the ACMA, either by hand or by certified mail, within 7 days after receiving notification of the cancellation.

Penalty:  20 penalty units.

             (5)  Subsection (4) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code).

             (6)  Subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Division 6Suspending and cancelling apparatus licences: general

Subdivision AGeneral provisions

125  Application of this Subdivision

             (1)  Subject to subsection (2), this Subdivision applies to an apparatus licence if the ACMA is satisfied that the licensee, or a person authorised by the licensee to operate a radiocommunications device under the licence, has:

                     (a)  contravened a condition of the licence (other than a condition set out in paragraph 109A(1)(g), (ga), (ia), (ib), (ic), (id), (ie), (if), (ij) or (j) or subsection 109A(2) or (3)), or in any other way contravened this Act; or

                     (b)  operated a radiocommunications device under the licence, or purportedly under the licence:

                              (i)  in contravention of any other law (whether written or unwritten) of the Commonwealth, a State or a Territory; or

                             (ii)  in the course of contravening such a law.

             (2)  This Subdivision does not apply to transmitter licences issued under section 101A or 102.

126  Suspending apparatus licences

             (1)  The ACMA may, by written notice given to the licensee, suspend the apparatus licence.

Note:          Suspensions of apparatus licences are reviewable under Part 5.6.

             (2)  The notice must give the reasons for suspending the licence.

             (3)  The ACMA may, at any time, by written notice given to the licensee, revoke the suspension of the licence.

127  Period of suspension

             (1)  Subject to subsection (2), the suspension of the apparatus licence, unless it is sooner revoked, ceases:

                     (a)  if, within 28 days after the suspension, proceedings for an offence against this Act are instituted against the licensee, or against a person authorised by the licensee to operate a radiocommunications device under the licence, and he or she is convicted of the offence—on the expiration of 14 days after the date of the conviction; or

                     (b)  if such proceedings are instituted within 28 days after the suspension and he or she is not convicted of the offence—on the completion of the proceedings; or

                     (c)  in any other case—on the expiration of 28 days after the suspension.

             (2)  If:

                     (a)  the notice of suspension specifies a day as the day on which the suspension of the apparatus licence ceases; and

                     (b)  that day occurs before the day fixed under subsection (1);

the suspension of the licence, unless it is sooner revoked, ceases on the day so specified.

             (3)  In subsection (1):

proceedings does not include proceedings by way of appeal or review.

128  Cancelling apparatus licences

             (1)  The ACMA may, by written notice given to the licensee, cancel the apparatus licence.

Note:          Cancellations of apparatus licences are reviewable under Part 5.6.

             (2)  The notice must give the reasons for cancelling the licence.

Subdivision BInternational broadcasting services

128A  Application of this Subdivision

                   This Subdivision applies to a transmitter licence if:

                     (a)  the licence authorises the operation of a radiocommunications transmitter for transmitting one or more international broadcasting services; and

                     (b)  each international broadcasting licence that authorised the provision of those international broadcasting services has been surrendered or cancelled.

128B  Cancelling transmitter licences

             (1)  The ACMA must, by written notice given to the holder of the transmitter licence, cancel the transmitter licence.

             (2)  The notice must give the reasons for cancelling the licence.

Division 6ASuspending and cancelling datacasting transmitter licences

128C  Suspending datacasting transmitter licences

             (1)  If the ACMA is satisfied that:

                     (a)  the licensee of a datacasting transmitter licence; or

                     (b)  a person authorised by the licensee to operate a radiocommunications transmitter under the licence;

has contravened a condition of the licence set out in paragraph 109A(1)(g), (ga), (ia), (ib), (ic), (id), (ie), (if), (ij) or (j) or subsection 109A(2) or (3), the ACMA may, by written notice given to the licensee, suspend the licence.

             (2)  The notice of suspension must specify, as the day on which the suspension ceases, the first day after the end of the period specified in the notice.

             (3)  The ACMA may, at any time, by written notice given to the licensee, revoke the suspension of the licence.

             (4)  Section 127 applies to a suspension under this section in a corresponding way to the way in which it applies to a suspension under section 126.

128D  Cancelling datacasting transmitter licences

                   If the ACMA is satisfied that:

                     (a)  the licensee of a datacasting transmitter licence; or

                     (b)  a person authorised by the licensee to operate a radiocommunications transmitter under the licence;

has contravened a condition of the licence set out in paragraph 109A(1)(g), (ga), (ia), (ib), (ic), (id), (ie), (if), (ij) or (j) or subsection 109A(2) or (3), the ACMA may, by written notice given to the licensee, cancel the licence.

Division 7Renewing apparatus licences

129  Applications for renewal of apparatus licences

             (1)  A licensee of an apparatus licence (other than a transmitter licence issued under section 101A, 101B, 101C, 102 or 102A or a non‑foundation digital radio multiplex transmitter licence) may, at any time during the period beginning 6 months before the licence is due to expire and ending 60 days after it expires, apply in writing to the ACMA for the licence to be renewed.

             (2)  The application must be in a form approved by the ACMA.

             (3)  The ACMA may approve different forms for renewal of different types of apparatus licence.

130  Renewing apparatus licences

             (1)  When an application is made, the ACMA may renew the licence by issuing to the applicant a new apparatus licence.

             (2)  The conditions of the new apparatus licence need not be the same as those of the licence that it replaces.

          (2A)  The ACMA 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.

          (2B)  The ACMA must not renew the licence if:

                     (a)  the licence is a datacasting transmitter licence; and

                     (b)  the licence has already been renewed on a previous occasion.

             (3)  In deciding whether to renew the licence, the ACMA:

                     (a)  must have regard to the same matters to which it must have regard under subsections 100(4) and (6) in deciding whether to issue such a licence; and

                     (b)  may have regard to the same matters to which it may have regard under subsection 100(5) in deciding whether to issue such a licence.

             (4)  The new licence comes into force, or is taken to have come into force, immediately after the expiration of the licence that it replaces.

          (4A)  If:

                     (a)  the ACMA 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.

             (5)  If the ACMA:

                     (a)  refuses to renew the licence; or

                     (b)  renews the licence but not on the same conditions;

the ACMA must give the licensee a written notice stating that fact.

Note:          Refusals to renew apparatus licences, and changes to licence conditions on renewal, are reviewable under Part 5.6.

             (6)  The notice given under subsection (5) must specify that:

                     (a)  the licensee may request a statement of reasons for the decision; and

                     (b)  a request must be made within 28 days of receipt of the notice.

             (7)  A person receiving a notice under subsection (5) may request a statement of reasons for the decision within 28 days of receiving the notice.

             (8)  If the ACMA receives a request in accordance with subsection (7), it must give the person a statement of reasons within 28 days of receipt of the request.

131  Application of other provisions

             (1)  Section 101, subsections 103(2), (3) and (6) and sections 104 and 105 apply to renewing an apparatus licence in the same way that they apply to issuing an apparatus licence.

             (2)  Subsection 103(5) applies to renewing a datacasting transmitter licence as if a reference in that subsection to 10 years were a reference to 5 years.

Division 8Transfer of apparatus licences

131AA  Applications for transfer of apparatus licences

             (1)  Subject to section 131AC, a licensee of an apparatus licence may, at any time before the licence is due to expire, apply in writing to the ACMA for the licence to be transferred to another person.

             (2)  The application must be in a form approved by the ACMA and must be signed by both the licensee and the proposed transferee.

             (3)  The ACMA may approve different forms for transfer of different types of apparatus licence.

             (4)  An NBS transmitter licence cannot be transferred to any person other than:

                     (a)  the Australian Broadcasting Corporation; or

                     (b)  the Special Broadcasting Service Corporation; or

                     (c)  the Commonwealth.

             (5)  A category 1 digital radio multiplex transmitter licence must not be transferred to a person unless:

                     (a)  the person is a qualified company; and

                     (b)  an access undertaking is in force under Division 4B in relation to the licence.

             (6)  A category 2 digital radio multiplex transmitter licence must not be transferred to a person unless:

                     (a)  the person is a qualified company; and

                     (b)  an access undertaking is in force under Division 4B in relation to the licence.

             (7)  A category 3 digital radio multiplex transmitter licence must not be transferred to a person unless the person is a qualified company, and:

                     (a)  both:

                              (i)  each national broadcaster beneficially owns shares in the company; and

                             (ii)  there are no other beneficial owners of shares in the company; or

                     (b)  both:

                              (i)  a single national broadcaster beneficially owns all the shares in the company; and

                             (ii)  the other national broadcaster has consented to that beneficial ownership.

131AB  Transfer of apparatus licences

             (1)  Subject to sections 131AC and 131ACA, when an application is made, the ACMA may transfer the licence into the name of the transferee.

             (2)  In deciding whether to transfer the licence, the ACMA:

                     (a)  must have regard to the same matters to which it must have regard under subsections 100(4) and (6) in deciding whether to issue such a licence; and

                     (b)  may have regard to the same matters to which it may have regard under subsection 100(5) in deciding whether to issue such a licence.

             (3)  The transferred licence:

                     (a)  subject to Divisions 6 and 6A, continues in force until the end of the period for which the licence is in force when issued to the initial licensee; and

                     (b)  subject to section 111, continues on the same conditions as those which applied immediately before the transfer.

131AC  Apparatus licences not transferable in certain circumstances

                   The ACMA may, by legislative instrument, determine:

                     (a)  that particular types of apparatus licence are not transferable under this Division; and

                     (b)  that in specified circumstances an apparatus licence is not transferable under this Division.

131ACA  Datacasting transmitter licences

                   The ACMA must not transfer a datacasting transmitter licence to a person unless:

                     (a)  the person is a qualified company; and

                     (b)  the ACMA is satisfied that the transfer would not result in a breach of any of the BSA control rules.

Division 10Provisional international broadcasting certificates

131AE  Applications for certificates

             (1)  If a person proposes to make an application for a transmitter licence authorising operation of a radiocommunications transmitter for transmitting an international broadcasting service, the person may apply in writing to the ACMA for a provisional international broadcasting certificate in relation to the proposed application for the transmitter licence.

             (2)  An application under subsection (1) must be in a form approved by the ACMA.

131AF  Issuing certificates

             (1)  After considering an application under section 131AE, the ACMA may issue to the applicant a provisional international broadcasting certificate in relation to the proposed application for the transmitter licence.

             (2)  The certificate must state that, if the following conditions are satisfied:

                     (a)  the applicant applies for the transmitter licence when the certificate is in force;

                     (b)  at the time when the application for the transmitter licence is made:

                              (i)  there is in force an international broadcasting licence that authorises the provision of the international broadcasting service concerned; and

                             (ii)  spectrum is available for use for the provision of that service;

                     (c)  such other conditions (if any) as are specified in the certificate;

the ACMA will be disposed to issue the transmitter licence.

             (3)  In deciding whether to issue a provisional international broadcasting certificate, the ACMA:

                     (a)  must have regard to all of the matters to which it would be required to have regard when deciding whether to issue the transmitter licence concerned (other than the matter mentioned in subsection 100(3B)); and

                     (b)  may have regard to:

                              (i)  any other matters to which it would be permitted to have regard when deciding whether to issue the transmitter licence concerned; and

                             (ii)  such other matters as the ACMA considers relevant.

             (4)  If the ACMA refuses to issue a provisional international broadcasting certificate to a person, the ACMA must give written notice of the refusal to the person, together with a statement of its reasons.

131AG  Duration of certificates

             (1)  A provisional international broadcasting certificate comes into force on the day on which it was issued and remains in force for 240 days.

             (2)  If a provisional international broadcasting certificate expires, subsection (1) does not prevent the making of a fresh application for a new certificate.

Part 3.4Class licences

Division 1General

132  ACMA may issue class licences

             (1)  The ACMA may, by legislative instrument, issue class licences.

Note:          For variation and revocation, see subsection 33(3) of the Acts Interpretation Act 1901.

             (2)  A class licence authorises any person:

                     (a)  to operate a radiocommunications device of a specified kind; or

                     (b)  to operate a radiocommunications device for a specified purpose; or

                     (c)  to operate a radiocommunications device of a specified kind for a specified purpose.

             (3)  Operation of a radiocommunications device is not authorised by a class licence if it is not in accordance with the conditions of the licence.

133  Conditions of class licences

             (1)  The ACMA may include in a class licence such conditions as it thinks fit.

             (2)  The conditions may, for example, include all or any of the following:

                     (a)  a condition specifying the frequencies at which operation of radiocommunications devices is authorised under the licence;

                     (b)  a condition specifying other technical requirements about operation of radiocommunications devices under the licence;

                     (c)  a condition specifying the area within which operation of radiocommunications devices is authorised under the licence;

                     (d)  a condition specifying the periods during which operation of radiocommunications devices is authorised under the licence;

                     (e)  a condition that any radiocommunications device operated under the licence must comply with all the standards applicable to it.

134  Varying class licences

                   To avoid doubt, the power to vary a class licence in accordance with subsection 33(3) of the Acts Interpretation Act 1901 includes the power to vary the licence by:

                     (a)  including one or more further conditions; or

                     (b)  revoking any conditions of the licence.

136  Consultation on variations and revocations

             (1)  Before varying a class licence, the ACMA must cause to be published, in accordance with subsection (2A), a written notice that:

                     (a)  states that it proposes to vary the licence; and

                     (b)  states the subject matter of the proposed variation; and

                     (c)  sets out the licence and the proposed variation; and

                     (d)  invites interested persons to make representations about the proposed variation by a specified date that is at least one month after the date of publication of the notice.

          (1A)  In addition to subsection (1), if the variation of a class licence would affect the spectrum allocated, to be allocated or to be re‑allocated by issuing or re‑issuing spectrum licences, before varying the class licence:

                     (a)  the ACMA must be satisfied that:

                              (i)  the variation of 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

                             (ii)  the variation of the class licence would be in the public interest; and

                     (b)  the ACMA must consult all licensees of spectrum licences who may be affected by the proposed variation of the class licence.

             (2)  Before revoking a class licence, the ACMA must cause to be published, in accordance with subsection (2A), a written notice that:

                     (a)  states that it proposes to revoke the licence; and

                     (b)  sets out the licence; and

                     (c)  invites interested persons to make representations about the proposed revocation by a specified date that is at least one month after the date of publication of the notice.

          (2A)  A notice under subsection (1) or (2) must be published:

                     (a)  on the ACMA’s website; and

                     (b)  in one or more other forms that are readily accessible by the public.

Example:    Publication in a form mentioned in paragraph (b) could be publication on a website other than the ACMA’s website.

             (3)  A person may, not later than the date specified in a notice under subsection (1) or (2), make representations to the ACMA about the proposed variation or revocation.

             (4)  The ACMA must, before varying or revoking the licence, give due consideration to any representations so made.

             (5)  Failure to comply strictly with subsection (1), (1A), (2) or (2A) does not affect the validity of the notice, or the validity of the variation or revocation of the class licence, if the requirements of that subsection are substantially complied with.

             (6)  This section does not apply to variation or revocation of a class licence if the ACMA is satisfied that the variation or revocation is a matter of urgency.

137  Compliance with plans

                   The ACMA must not issue a class licence that is inconsistent with the spectrum plan or any relevant frequency band plan.

138  Parts of the spectrum allocated for spectrum licences

             (1)  The ACMA must not issue a class licence that authorises the operation of radiocommunications devices at frequencies that are within a part of the spectrum that is:

                     (a)  designated under section 36 to be allocated by issuing spectrum licences; or

                     (b)  specified in a spectrum re‑allocation declaration that gives effect to paragraph 153B(6)(a);

unless subsection (2) is satisfied.

             (2)  Before issuing a class licence:

                     (a)  the ACMA must be satisfied that:

                              (i)  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

                             (ii)  issuing the class licence would be in the public interest; and

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

Division 2Requests for advice

140  Requests for advice on operation of radiocommunications devices

             (1)  A person who operates, or is proposing to operate, a radiocommunications device may give to the ACMA a written request for advice on whether operation of the device is authorised under the class licence specified in the request.

             (2)  The request may be limited to advice on operation of the device in the circumstances specified in the request.

             (3)  The circumstances so specified may include the way in which the device is operated.

             (4)  The request must be in a form approved by the ACMA.

141  ACMA to advise on the operation of radiocommunications devices

             (1)  The ACMA is to give, to a person who requests advice under section 140, written advice on whether it thinks the operation of the radiocommunications device, as specified in the request, is authorised under the class licence in question.

             (2)  The advice may state that operation of the device is authorised under the class licence only if, or unless, the device is operated in the circumstances specified in the advice.

             (3)  The circumstances so specified may include the way in which the device is operated.

142  The effect of the ACMA’s advice

             (1)  If:

                     (a)  the advice states that the operation of the device is authorised under the class licence; and

                     (b)  the device is operated only in accordance with the advice;

neither the ACMA nor any other authority of the Commonwealth may take any action against the person to whom the advice was given, during the period of 5 years commencing on the day the advice was given, on the basis that operation of the device is not so authorised.

             (2)  This Division does not imply that operation of a radiocommunications device is not authorised under a class licence unless it is in accordance with advice given under this Division.

Part 3.5Registration of licences

  

143  The Register of Radiocommunications Licences

             (1)  There is to be a register known as the Register of Radiocommunications Licences.

             (2)  The Register is to be established and kept by the ACMA.

             (3)  The Register may be kept by electronic means.

             (4)  The Register may consist of 2 or more registers, each of which contains so much of the information that is required to be entered in the Register as the ACMA determines.

144  Contents of the Register—spectrum licences

             (1)  The Register is to contain the following information for each spectrum licence:

                     (a)  the licensee’s name and postal address;

                     (b)  the date of issue and date of expiry of the licence;

                     (c)  such details as the ACMA determines, in writing, about the conditions of spectrum licences;

                     (d)  such details as the ACMA determines, in writing, about authorisations by licensees for other persons to operate radiocommunications devices under spectrum licences;

                     (e)  such details as the ACMA determines, in writing, about radiocommunications devices that are operated under spectrum licences.

             (2)  The ACMA may include in the Register such other details about spectrum licences as it thinks necessary or convenient for the purposes of this Act.

145  Refusal to register radiocommunications transmitters for operation under spectrum licences

             (1)  The ACMA may:

                     (a)  refuse to include in the Register under paragraph 144(1)(e) details of a radiocommunications transmitter that is proposed to be operated under a spectrum licence;

if the ACMA is satisfied that:

                     (b)  operation of the transmitter could cause an unacceptable level of interference to the operation of other radiocommunications devices under that or any other spectrum licence, or any other licence.

Note:          Operation of a radiocommunications transmitter without registration of its details may breach a licence condition under section 69.

             (2)  If the ACMA refuses an application to include in the Register details of such a transmitter, it must give the applicant written notice of the refusal, together with a statement of its reasons.

Note:          Refusals to include in the Register such details are reviewable decisions under Part 5.6.

             (3)  The ACMA may require that, before such details are included in the Register, there be presented to the ACMA a certificate, issued by a person accredited under section 263 to issue certificates for the purposes of this section, stating that operation of the device under the licence satisfies any conditions that are required to be satisfied, in relation to the issue of such a certificate, under a determination made under section 266A.

             (4)  The ACMA may determine, by written instrument, what are unacceptable levels of interference for the purposes of this section.

146  Updating the Register to take variations etc. of spectrum licences into account

             (1)  Subject to subsection (2), the ACMA must, as soon as practicable, make the changes to the information in the Register about a spectrum licence that the ACMA considers are necessary or convenient for taking into account:

                     (a)  any variation of the licence under section 72, 73, 87, 90 or 92; or

                     (b)  any suspension of the licence under section 75; or

                     (c)  any cancellation of the licence under section 77 or 87, or any cancellation of the licence that, under section 307, is taken to have occurred on acceptance of a surrender of the licence; or

                     (d)  any assignment of the licence under section 85; or

                     (e)  any resumption of the licence under section 89 or 91.

             (2)  The ACMA need not make such changes in order to take into account an assignment of the licence under section 85, or a variation of the licence under section 87 that relates to the assignment, unless:

                     (a)  the ACMA has been given the information required under section 86; and

                     (b)  the appropriate charge fixed by determination made under section 60 of the Australian Communications and Media Authority Act 2005 has been paid.

147  Contents of the Register—apparatus licences

             (1)  The Register is to contain the following information for each apparatus licence:

                     (a)  the licensee’s name and postal address;

                     (b)  the date of issue and date of expiry of the licence;

                     (c)  such details as the ACMA determines, in writing, about the conditions of apparatus licences;

                     (d)  such details as the ACMA determines, in writing, about authorisations by licensees for other persons to operate radiocommunications devices under apparatus licences;

                     (e)  such details as the ACMA determines, in writing, about radiocommunications devices that are operated under apparatus licences; and

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

             (2)  The ACMA may include in the Register such other details about apparatus licences as it thinks necessary or convenient for the purposes of this Act.

148  Updating the Register to take variations etc. of apparatus licences into account

                   The ACMA must, as soon as practicable, make the changes to the information in the Register about an apparatus licence that the ACMA considers are necessary or convenient in order to take into account:

                     (a)  any variation of the licence under section 111; or

                     (b)  any suspension of the licence under section 126 or 128C; or

                     (c)  any cancellation of the licence under section 128 or 128B or 128D, or any cancellation of the licence that, under section 307, is taken to have occurred on acceptance of a surrender of the licence; or

                     (d)  any transfer of the licence under section 131AB.

149  Contents of the Register—class licences

             (1)  The Register is to contain, for each class licence, such details as the ACMA determines, in writing, about class licences.

             (2)  The ACMA may include in the Register such other details about class licences as it thinks necessary or convenient for the purposes of this Act.

150  Updating the Register to take variations etc. of class licences into account

                   The ACMA must, as soon as practicable, make the changes to the information in the Register about a class licence that the ACMA considers are necessary or convenient in order to take into account:

                     (a)  any variation of the licence; or

                     (b)  any revocation of the licence.

151  Inspection of the Register

             (1)  Subject to section 152, the ACMA must ensure that the Register is available for inspection by any person during the hours that the ACMA is open for business.

             (2)  If the Register is kept wholly or partly by use of a computer, subsection (1) is taken to be complied with, so far as the Register is so kept, by giving members of the public access to a computer terminal that they can use to inspect the Register, either on a screen or in the form of a computer print‑out.

152  Parts of the Register may be kept confidential

                   Section 151 does not apply in relation to a part of the Register if the ACMA is satisfied that it would not be in the national interest (for example, for defence or security reasons) for information in that part of the Register to be available to the public.

153  Correction of the Register

             (1)  The ACMA may, at any time, correct information in the Register.

             (2)  The correction may be made:

                     (a)  in any case—on the ACMA’s own initiative; or

                     (b)  if the information is about a spectrum licence or an apparatus licence—on the application of the licensee or a person authorised by the licensee to operate radiocommunications devices under the licence.

             (3)  An application under paragraph (2)(b) must be in a form approved by the ACMA.

             (4)  On making a correction, the ACMA must give written notice of the correction to:

                     (a)  the licensee; and

                     (b)  if an application was made under paragraph (2)(b) by a person (other than the licensee) for the information to be corrected—that person; and

                     (c)  any other person who has given written notice to the ACMA under subsection (6) in relation to the licence to which the correction relates.

             (5)  On refusing an application for a correction, the ACMA must give to the applicant written notice of the refusal, together with a statement of its reasons.

Note:          Refusals to correct the Register are reviewable decisions under Part 5.6.

             (6)  A person may give a written notice to the ACMA stating that the person wishes to be notified about corrections to the Register in relation to specified licences.

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 ACMA.

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

                     (a)  prepare a written notice stating that the declaration has been made; and

                     (b)  both:

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

                             (ii)  publish a copy of the notice on the ACMA’s website.

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

             (3)  A spectrum re‑allocation declaration is a legislative instrument.

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 ACMA’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 ACMA 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  ACMA may recommend that the Minister make a spectrum re‑allocation declaration

             (1)  The ACMA 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 ACMA’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 ACMA must:

                     (a)  prepare a written notice:

                              (i)  stating that the ACMA 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)  publish a copy of the notice on the ACMA’s website.

             (2)  The notice must invite each potentially‑affected apparatus licensee to give written comments to the ACMA 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 ACMA must have regard to the comments.

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

             (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.

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; and

                     (c)  the licence is not:

                              (i)  an NBS transmitter licence; or

                            (iv)  a transmitter licence issued under section 102.

             (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 ACMA 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 ACMA 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 ACMA is taken to begin allocating licences if, and only if:

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

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

                     (c)  in any other case—the ACMA 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 ACMA 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 ACMA 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 ACMA 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

                   (da)  the licence is issued to a body covered by any of paragraphs 27(1)(b) to (be) for the purpose of investigations or operations conducted by the body; or

                     (e)  the ACMA 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 ACMA 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 to a body covered by any of paragraphs 27(1)(b) to (be) for the purpose of investigations or operations conducted by the body; or

                     (d)  the ACMA is satisfied that the special circumstances of the case justify the issuing of the licence.

Chapter 4General regulatory provisions

  

  

154  Outline of this Chapter

             (1)  This Chapter imposes requirements that relate both to radiocommunications and to radio emissions in general.

             (2)  Part 4.1 is about standards applicable to, and other technical regulation of, equipment that uses, or is affected by, radio emissions.

             (3)  Part 4.2 contains offence provisions relating to radio emissions, in particular offences aimed at containing various kinds of interference with radiocommunications.

             (4)  Part 4.3 establishes a conciliation process for the settlement of interference disputes.

             (5)  Part 4.4 enables certain restrictions to be imposed by restrictive orders made during declared periods of emergency.

Part 4.1Standards and other technical regulation

Division 1Preliminary

155  The object of this Part

             (1)  The object of this Part is to establish an efficient, flexible and responsive system for technical regulation of equipment that uses, or is affected by, radio emissions.

             (2)  The system is intended to:

                     (a)  benefit users of the equipment by promoting the electromagnetic compatibility of equipment; and

                     (b)  contain interference within acceptable limits; and

                     (c)  establish standards for the equipment and for services provided using the equipment; and

                     (d)  control sale or supply of non‑standard devices; and

                     (e)  enable efficient management of compliance and enforcement, including, in particular, industry self‑certification for compliance with standards; 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.

156  Outline of this Part

                   In order to achieve this object:

                     (a)  Division 2 imposes prohibitions relating to non‑standard devices, subject to exceptions in Divisions 4 and 5;

                     (b)  Division 3 enables the ACMA to make standards for devices (including the radio emissions made by devices);

                     (c)  Division 4 enables the ACMA to issue permits that exempt non‑standard transmitters from Division 2;

                     (d)  Division 5 sets out the other ways in which non‑standard devices can be exempt from Division 2;

                      (f)  Division 7 enables the ACMA to require that devices be labelled to indicate whether they comply with standards or class licences;

                     (g)  Division 8 enables devices to be prohibited because of their effect on radiocommunications.

Division 2Non‑standard devices

157  Emissions from non‑standard transmitters

             (1)  Subject to Divisions 4 and 5, a person must not cause a radio emission to be made by a transmitter that the person knows is a non‑standard transmitter.

Penalty: 

                     (a)  if the offender is an individual—120 penalty units; or

                     (b)  otherwise—1,500 penalty units.

          (1A)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

             (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)  carriage services (within the meaning of the Telecommunications Act 1997); or

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

             (3)  The following diagram shows how this Part (other than Division 8) applies to radio emissions.

Note:          Chapter 3 imposes additional requirements on operation of radiocommunications devices.

158  Possession of non‑standard devices

             (1)  Subject to Divisions 4 and 5, a person must not have in his or her possession for the purpose of operation a device that the person knows is a non‑standard device.

Penalty: 

                     (a)  if the offender is an individual—120 penalty units; or

                     (b)  otherwise—1,500 penalty units.

          (1A)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

             (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)  carriage services (within the meaning of the Telecommunications Act 1997); or

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

             (3)  The following diagram shows how this Part (other than Division 8) applies to possession of devices.

Note:          Chapter 3 imposes additional requirements on possession of radiocommunications devices.

159  Additional provisions about possession of devices

             (1)  Without limiting section 158, a person is taken, for the purposes of that section, to have a device in his or her possession for the purpose of operation if it is in his or her possession, otherwise than for the purpose of supply to another person, and can be operated by merely doing one or more of the following:

                     (a)  connecting the device to an electric power supply by means of an electric plug or other electric connection;

                     (b)  connecting a microphone to the device by inserting a microphone plug into the device;

                     (c)  switching on the device;

                     (d)  switching on any other equipment relevant to the device’s operation;

                     (e)  adjusting settings by manipulating the device’s external switches, dials or other controls;

                      (f)  connecting the device to an antenna.

             (2)  Subsection (1) only applies in the absence of any evidence to the contrary.

             (3)  A reference in this section to a person having a device in his or her possession includes a reference to the person having it under control in any place whatever, whether for the use or benefit of that person or another person, and although another person has the actual possession or custody of it.

160  Supply of non‑standard devices

             (1)  Subject to Division 5, a person must not supply a device that the person knows is a non‑standard device.

Penalty: 

                     (a)  if the offender is an individual—120 penalty units; or

                     (b)  otherwise—1,500 penalty units.

          (1A)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

             (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.

             (3)  The following diagram shows how this Part (other than Division 8) applies to supply of devices.

161  Imputed knowledge

                   For the purposes of establishing a contravention of section 157, 158 or 160, if, having regard to:

                     (a)  a person’s abilities, experience, qualifications and other attributes; and

                     (b)  all the circumstances surrounding the alleged contravention;

the person ought reasonably to have known that the transmitter or device in question was a non‑standard transmitter or non‑standard device, the person is taken to have known that it was a non‑standard transmitter or non‑standard device.

Division 3Standards

162  The ACMA’s power to make standards

             (1)  The ACMA may, by legislative instrument, make standards for:

                     (a)  the performance of specified devices; or

                     (b)  the maximum permitted level of radio emissions from devices (other than radiocommunications from radiocommunications devices in accordance with Chapter 3) within specified parts of the spectrum.

             (2)  A standard:

                     (a)  may be of general application or may be limited as provided in the standard; and

                     (b)  without limiting paragraph (a), may apply:

                              (i)  with respect to one or more specified areas; or

                             (ii)  with respect to one or more specified parts of the spectrum.

             (3)  Standards are to consist only of such requirements as are necessary or convenient for:

                     (a)  containing interference to radiocommunications; or

                     (b)  containing interference to any uses or functions of devices; or

                     (c)  establishing for the operation of radiocommunications transmitters or radiocommunications receivers an adequate level of immunity from electromagnetic disturbance caused by the use of devices (including other radiocommunications transmitters or radiocommunications receivers); or

                     (d)  establishing for the uses or functions of devices an adequate level of immunity from electromagnetic disturbances caused by the operation of radiocommunications transmitters; 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.

163  Procedures for making standards

             (1)  Before making a standard, the ACMA must, so far as is practicable, try to ensure that:

                     (a)  interested persons have had adequate opportunity to make representations about the proposed standard (either directly, or indirectly by means of a report under paragraph (2)(g)); and

                     (b)  due consideration has been given to any representations so made.

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

             (2)  The ACMA may make an arrangement with any of the following bodies or associations:

                     (a)  Standards Australia;

                     (b)  a body or association approved in writing by Standards Australia for the purposes of this subsection;

                     (c)  a body or association specified in a written determination made by the ACMA for the purposes of this subsection;

under which the body or association:

                     (d)  prepares a draft of a standard; and

                     (e)  publishes the draft standard; and

                      (f)  undertakes a process of public consultation on the draft standard; and

                     (g)  reports to the ACMA on the results of that process of public consultation.

             (3)  A copy of an approval under paragraph (2)(b) is to be published in the Gazette.

             (4)  A copy of a determination under paragraph (2)(c) is to be published in the Gazette.

163A  Making standards in cases of urgency

             (1)  The ACMA is not required to comply with subsection 163(1) in relation to the making of a particular standard if the ACMA 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 ACMA 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.

Division 4Permits for non‑standard devices

166  The effect of permits

                   A person does not:

                     (a)  contravene section 157 by causing a non‑standard transmitter to make a radio emission; or

                     (b)  contravene section 158 by having in his or her possession a non‑standard device;

if causing the emission or possessing the device is in accordance with a permit.

167  The ACMA may issue permits

             (1)  A person may apply to the ACMA, in a form approved by the ACMA, for a permit.

             (2)  The ACMA may, in writing, issue to the person a permit authorising the person and, if the permit so specifies, his or her agents:

                     (a)  to have in his, her or their possession specified non‑standard devices; and

                     (b)  if, and only if, the permit so specifies—to cause such devices to make radio emissions.

             (3)  In deciding whether to issue a permit, the ACMA may have regard to whether the purpose for which the permit is sought is a purpose related to:

                     (a)  education or research; or

                     (b)  testing of devices; or

                     (c)  demonstration of devices.

          (3A)  In deciding whether to issue a permit, the ACMA must have regard to the protection of the health or safety of persons who:

                     (a)  operate devices; or

                     (b)  work on devices; or

                     (c)  use services supplied by means of devices; or

                     (d)  are otherwise reasonably likely to be affected by the operation of devices.

          (3B)  Subsections (3) and (3A) do not, by implication, limit the matters to which the ACMA may have regard.

             (4)  If the ACMA refuses to issue the permit, it must give the person a written notice of the refusal, together with a statement of its reasons.

Note:          Refusals to issue permits are reviewable under Part 5.6.

168  Conditions of permits

             (1)  A permit is subject to the following conditions:

                     (a)  a condition that a person to whom the permit relates must comply with this Act; and

                     (b)  any other conditions specified in the permit.

             (2)  The ACMA may, by written notice given to the person to whom the permit was issued:

                     (a)  impose one or more further conditions to which the permit was issued; or

                     (b)  vary or revoke any conditions:

                              (i)  imposed under paragraph (a); or

                             (ii)  specified under paragraph (1)(b).

Note:          Decisions about permit conditions are reviewable under Part 5.6.

169  Duration of permits

             (1)  A permit comes into force on the day on which it is issued.

             (2)  A permit that authorises radio emission:

                     (a)  must specify a day of expiration; and

                     (b)  subject to section 171, remains in force until the end of that day.

             (3)  Subject to section 171, a permit that does not authorise radio emission remains in force:

                     (a)  if it specifies a day of expiration—until the end of that day; or

                     (b)  otherwise—indefinitely.

             (4)  A day of expiration specified under paragraph (2)(a) or (3)(a) must be:

                     (a)  if:

                              (i)  there is in force a written determination made by the ACMA that is expressed to apply in relation to all permits or in relation to a class of permits in which the permit is included; and

                             (ii)  the determination specifies a period longer than 12 months in relation to all permits or in relation to a class of permits in which the permit is included;

                            a day within that longer period; or

                     (b)  otherwise:

                              (i)  if the permit was issued in a month other than December—a day within 12 months after the permit was granted; or

                             (ii)  if the permit was issued in December of a particular year—a day not later than 31 December in the next year.

             (5)  A determination under paragraph (4)(a) is a legislative instrument.

             (6)  The ACMA may, by written notice given to the holder of a permit, declare that the permit has effect as if the permit had specified a day specified in the notice as the day of expiration of the permit. The declaration has effect accordingly.

             (7)  The day specified in a notice under subsection (5) must:

                     (a)  be later than the day on which the notice was given to the holder; and

                     (b)  comply with the rules set out in subsection (4).

169A  Compensation—constitutional safety‑net

             (1)  If:

                     (a)  apart from this section, the operation of subsection 169(6) would result in the acquisition of property from a person otherwise than on just terms; and

                     (b)  the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;

the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

170  Contraventions of permit conditions

             (1)  A person commits an offence if:

                     (a)  a permit relates to the person; and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes a condition of the permit.

Penalty:  100 penalty units.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

             (3)  In this section:

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

171  Cancelling permits

             (1)  The ACMA may, by written notice given to the holder of a permit, cancel the permit.

             (2)  The notice must give the reasons for cancelling the permit.

             (3)  In deciding whether to cancel a permit, the ACMA:

                     (a)  must have regard to all matters that it considers relevant; and

                     (b)  without limiting paragraph (a), may have regard to:

                              (i)  any matter to which the ACMA may, under subsection 167(3), have regard in deciding whether to issue a permit; and

                            (ia)  any matter to which the ACMA must, under subsection 167(3A), have regard in deciding whether to issue a permit; and

                             (ii)  whether or not the holder of the permit or an agent of the holder has been convicted of an offence under section 170; and

                            (iii)  whether or not the holder of the permit or an agent of the holder has been convicted of an offence against section 136.1 or 137.1 of the Criminal Code that relates to this Act.

Note:          Cancellations of permits are reviewable under Part 5.6.

Division 5Other exemptions from Division 2

172  Emergency transmissions etc.

                   A person does not contravene section 157 or 158 by causing a radio transmission to be made by a non‑standard transmitter, or having a non‑standard device in his or her possession, in the reasonable belief that the emission or possession was necessary for the purpose of:

                     (a)  securing the safety of a vessel, aircraft or space object that was in danger; or

                     (b)  dealing with an emergency involving a serious threat to the environment; or

                     (c)  dealing with an emergency involving risk of death of, or injury to, persons; or

                     (d)  dealing with an emergency involving risk of substantial loss of, or damage to, property.

173  Possession or supply for use solely outside Australia

             (1)  A person does not:

                     (a)  contravene section 158 by having a non‑standard device in his or her possession; or

                     (b)  contravene section 160 by supplying a non‑standard device;

if the device is intended to be used solely outside Australia.

             (2)  If there is applied to a device:

                     (a)  a statement that the device is for export only; or

                     (b)  a statement indicating, by use of words authorised for the purposes of this subsection by the regulations, that the device is intended to be used solely outside Australia;

it is presumed for the purposes of this section, unless the contrary is established, that the device is intended to be so used.

             (3)  For the purposes of subsection (2), a statement is taken to be applied to a device if:

                     (a)  the statement is impressed on, worked into, or annexed or affixed to, the device; or

                     (b)  the statement is applied to a covering (including a box, case, frame or wrapper), label or thing in or with which the device is supplied.

174  Supply with permission

             (1)  A person does not contravene section 160 by supplying a non‑standard device in accordance with the ACMA’s written permission.

             (2)  If the ACMA decides to refuse to give such permission to a person who has applied to the ACMA for it in a form approved by the ACMA, the ACMA must give to the person a written notice setting out its decision.

Note:          Refusals to give permission are reviewable under Part 5.6.

175  Supply for modification etc.

                   A person does not contravene section 160 by supplying a non‑standard device for the purposes of modifying or altering it so that it would comply with all standards applicable to it at the time of the alteration or modification.

176  Supply for re‑export

                   A person does not contravene section 160 by supplying a non‑standard device if:

                     (a)  the device was imported; and

                     (b)  the person supplied it for the purposes of re‑export.

177  Burden of proof

             (1)  In proceedings for an offence against section 157 or 158, the burden of proving any of the matters referred to in section 172 lies on the defendant.

             (2)  In proceedings for an offence against section 158 or 160, the burden of proving the absence of any of the matters referred to in section 173, 174, 175 or 176 lies on the prosecution.

178  Reasonable excuse

                   Nothing in this Division limits the scope of the expression “reasonable excuse” in subsection 157(1A), 158(1A) or 160(1A).

Division 7Labelling of devices

182  Requirements to apply labels etc.

             (1)  The ACMA may, by legislative instrument, give notice requiring any person who manufactures or imports a device included in a specified class of devices to apply to each such device a label that indicates either or both of the following:

                     (a)  whether the device meets the requirements of the standards specified in the notice;

                     (c)  if the device is a radiocommunications device—whether the device complies with the class licence specified in the notice.

          (1A)  The notice may require a manufacturer or importer of a device included in a class of devices specified in the notice:

                     (a)  to conduct quality assurance programs; or

                     (b)  to satisfy himself or herself that quality assurance programs have been conducted;

in respect of the device.

          (1B)  The notice may require a manufacturer or importer of a device, after having regard to the results of the quality assurance program, to apply a label to each such device that indicates either or both of the following:

                     (a)  whether the device meets the requirements of the standards specified in the notice;

                     (c)  if the device is a radiocommunications device—whether the device complies with the class licence specified in the notice.

             (2)  The label must be in the form specified by the ACMA in the notice.

          (2A)  The method of applying the label to the device must be as specified by the ACMA in the instrument.

             (3)  The notice may state that the requirement does not apply to an imported device if there is affixed a label of a specified kind that indicates that the device complies with requirements of:

                     (a)  a specified law of a foreign country; or

                     (b)  a specified instrument in force under a law of a foreign country; or

                     (c)  a specified convention, treaty or international agreement; or

                     (d)  a specified instrument in force under a specified convention, treaty or international agreement.

             (4)  The notice may specify requirements that must be met before a label can be applied, including (but not limited to):

                     (a)  a requirement that, before a manufacturer or importer applies the label, the manufacturer or importer must have obtained a written statement from a certification body certifying that the device complies with the standard or class licence specified in the notice; and

                     (b)  a requirement that, before a manufacturer or importer applies the label, the device must have been tested by a recognised testing authority for compliance with the standard or class licence specified in the notice; and

                     (c)  a requirement that, before a manufacturer or importer applies the label, the manufacturer or importer must have obtained a written statement from a competent body certifying that reasonable efforts have been made to avoid contravention of the standard or class licence specified in the notice; and

                     (d)  a requirement that, before a manufacturer or importer applies the label, the manufacturer or importer must make a written declaration in relation to the device, being a declaration in a form specified in the notice.

Note 1:       Certification body is defined by section 183A.

Note 2:       Competent body is defined by section 183.

Note 3:       Recognised testing authority is defined by section 183.

          (4A)  The notice may also specify requirements that must be met after a label has been applied to a device, including a requirement that a manufacturer or importer retain for inspection, for the period specified in the notice:

                     (a)  records of the quality assurance programs conducted in accordance with a notice under subsection (1) in respect of that device; and

                     (b)  records of any results of any tests conducted in relation to compliance with relevant standards or the class licence; and

                     (c)  a declaration, or a copy of the declaration, made as mentioned in paragraph (4)(d).

183  Recognised testing authorities

             (1)  The ACMA may, by notice in the Gazette, determine that a specified person or association is an accreditation body for the purposes of this section. The determination has effect accordingly.

             (2)  An accreditation body may, by written instrument, determine that a specified person is a recognised testing authority for the purposes of this Division. The determination has effect accordingly.

             (3)  An accreditation body may, by written instrument, determine that a specified person or association is a competent body for the purposes of this Division. The determination has effect accordingly.

183A  Certification bodies

             (1)  The ACMA may, by notice published in the Gazette, determine that a specified person or association is an approving body for the purposes of this section. The determination has effect accordingly.

             (2)  An approving body may, by written instrument, determine that a specified person or association is a certification body for the purposes of this Division. The determination has effect accordingly.

186  Sale etc. of devices without labels

             (1)  If a person:

                     (a)  has manufactured or imported a device; and

                     (b)  knows that he or she is required under section 182 to apply to it a label in a particular form;

the person must not supply the device unless a label in that form has been applied to the device.

Penalty:  100 penalty units.

          (1A)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

             (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 supply were, by express provision, confined to 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.

187  Applying labels before satisfying requirements under subsection 182(4)

             (1)  If a person knows that he or she must satisfy requirements that have been specified under subsection 182(4) before applying a particular label to a device under subsection 182(1), the person must not apply:

                     (a)  the label; or

                     (b)  a label that purports to be such a label;

before he or she satisfies those requirements.

Penalty:  100 penalty units.

          (1A)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

             (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.

187A  Failure to retain records

             (1)  If the ACMA gives a notice under subsection 182(1) that specifies requirements to be met after a label has been applied, a manufacturer or importer must not fail to comply with requirements specified in the notice.

Penalty:  20 penalty units.

          (1A)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

          (1B)  Subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

             (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.

188  Imputed knowledge

                   For the purposes of establishing a contravention of section 186 or 187, if, having regard to:

                     (a)  a person’s abilities, experience, qualifications and other attributes; and

                     (b)  all the circumstances surrounding the alleged contravention;

the person ought reasonably to have known that he or she was subject to the requirement in question, the person is taken to have known that he or she was subject to the requirement.

188A  Protected symbols

             (1)  A person must not:

                     (a)  use in relation to a business, trade, profession or occupation; or

                     (b)  apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let on hire; or

                     (c)  use in relation to:

                              (i)  goods or services; or

                             (ii)  the promotion, by any means, of supply or use of goods or services;

a protected symbol, or a symbol so closely resembling a protected symbol as to be likely to be mistaken for it.

             (2)  A person who contravenes subsection (1) commits an offence punishable on conviction by a fine not exceeding 30 penalty units.

Note:          See also sections 4AA and 4B of the Crimes Act 1914.

             (3)  Nothing in subsection (1) limits anything else in that subsection.

             (4)  Nothing in subsection (1), so far as it applies in relation to a protected symbol, affects rights conferred by law on a person in relation to:

                     (a)  a trade mark that is registered under the Trade Marks Act 1995; or

                     (b)  a design that is registered under the Designs Act 2003;

and was registered under the Trade Marks Act 1995 or the Designs Act 1906 immediately before 16 August 1996 in relation to the symbol.

             (5)  Nothing in this section, so far as it applies to a protected symbol, affects the use, or rights conferred by law relating to the use, of the symbol by a person in a particular manner if, immediately before 16 August 1996, the person:

                     (a)  was using the symbol in good faith in that manner; or

                     (b)  would have been entitled to prevent another person from passing off, by means of the use of the symbol or a similar symbol, goods or services as the goods or services of the first‑mentioned person.

             (6)  This section does not apply to a person who uses or applies a protected symbol for the purposes of labelling a device in accordance with section 182 of this Act or labelling customer equipment or customer cabling in accordance with section 407 of the Telecommunications Act 1997.

             (7)  This section does not apply to a person who uses or applies a protected symbol for a purpose of a kind specified in a written determination made by the ACMA.

             (8)  A reference in this section to a protected symbol is a reference to:

                     (a)  the symbol known in the radiocommunications community as the C‑Tick mark:

                              (i)  the design of which is set out in a written determination made by the ACMA; and

                             (ii)  a purpose of which, after the commencement of this section, is to indicate compliance by a device with:

                                        (A)  any applicable standards; and

                                        (B)  any applicable class licences; or

                     (b)  a symbol:

                              (i)  the design of which is set out in a written determination made by the ACMA; and

                             (ii)  a purpose of which, after the commencement of this section, is to indicate compliance by a device with:

                                        (A)  any applicable standards; and

                                        (B)  any applicable class licences; or

                     (c)  a symbol:

                              (i)  the design of which is set out in a written determination made by the ACMA; and

                             (ii)  a purpose of which, after the commencement of this section, is to indicate non‑compliance by a device with:

                                        (A)  applicable standards; and

                                        (B)  any applicable class licences.

             (9)  For the purposes of this Division, if:

                     (a)  a label is applied to a device; and

                     (b)  the label embodies a symbol referred to in paragraph (8)(a), or (b);

the label is taken to indicate that the device meets the requirements of:

                     (c)  each applicable standard; and

                     (d)  each applicable class licence.

           (10)  For the purposes of this Division, if:

                     (a)  a label is applied to a device; and

                     (b)  the label embodies a symbol referred to in paragraph (8)(c);

the label is taken to indicate that the device does not meet the requirements of: