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This is a Bill, not an Act. For current law, see the Acts databases.
1996
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Radiocommunications
Amendment Bill 1996
No. ,
1996
(Communications and the
Arts)
A Bill for an Act to amend the
Radiocommunications Act 1992, and for related
purposes
9615820—1,025/30.10.1996—(158/96) Cat. No.
96 5382 1 ISBN 0644 4811259
Contents
Radiocommunications Act 1992 6radiah1.html
A Bill for an Act to amend the Radiocommunications Act
1992, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Radiocommunications Amendment Act
1996.
This Act commences on the day on which it receives the Royal
Assent.
Each Act that is specified in a Schedule to this Act is amended as set
out in the applicable items in the Schedule concerned, and any other item in a
Schedule to this Act has effect according to its terms.
1 After paragraph 4(c)
Insert:
(ca) Chapter 3 also provides for the re-allocation of parts of the
spectrum (see Part 3.6); and
2 Section 5
Insert:
ACCC means the Australian Competition and Consumer
Commission.
3 Section 5
Insert:
EMC standard means a standard made solely for the purposes of
either or both of the following:
(a) paragraph 162(3)(b);
(b) paragraph 162(3)(e).
4 Section 5 (definition of marketing
plan)
After “section 39” insert “or 39A”.
5 Section 5
Insert:
re-allocation deadline, in relation to a spectrum
re-allocation declaration, has the meaning given by section 153B.
6 Section 5
Insert:
re-allocation period, in relation to a spectrum re-allocation
declaration, has the meaning given by section 153B.
7 Section 5
Insert:
spectrum re-allocation declaration means a declaration under
section 153B.
8 Section 5 (definition of technical licence
specification)
Repeal the definition.
9 At the end of subsection
29(3)
Add:
; and (c) marketing plans that govern allocation under spectrum licences
of parts of the spectrum that are subject to re-allocation.
10 Subsection 36(2)
Omit “generally or”.
11 At the end of section 36
Add:
(6) If there is in force a spectrum re-allocation declaration stating that
a particular part of the spectrum is subject to re-allocation with respect to a
particular area, then, during the re-allocation period for the declaration, the
Minister must not give a notice under this section that relates wholly or partly
to that part of the spectrum with respect to the whole or a part of that area.
(7) If, at the beginning of the re-allocation period for a spectrum
re-allocation declaration:
(a) the declaration states that a particular part of the spectrum is
subject to re-allocation with respect to a particular area; and
(b) a notice is in force under this section designating a particular part
of the spectrum to be allocated by issuing spectrum licences with respect to a
particular area; and
(c) the part and area covered by the declaration overlap, to any extent,
with the part and area covered by the notice;
then:
(d) the notice; and
(e) any conversion plan prepared by the SMA on receiving the notice;
and
(f) any marketing plan prepared by the SMA on receiving the
notice;
cease to have effect at the beginning of that period, to the extent of the
overlap.
(8) If:
(a) because of subsection (7), Subdivision A of Division 1 of Part 3.2
ceases to apply to a particular apparatus licence at a particular time;
and
(b) before that time, the SMA gave the licensee an offer under section 56
to issue a spectrum licence to replace the apparatus licence;
subsection (7) does not prevent:
(c) the licensee accepting the offer; or
(d) the SMA issuing the spectrum licence.
12 Paragraph 38(1)(b)
Repeal the paragraph, substitute:
(b) within the area or areas specified in the notice.
13 Paragraph 39(1)(b)
Repeal the paragraph, substitute:
(b) within the area or areas specified in the notice.
Note: The heading to section 39 of the
Radiocommunications Act 1992 is altered by adding at the end
“—unencumbered spectrum”.
14 After section 39
Insert:
(1) This section applies if a spectrum re-allocation declaration states
that a part or parts of the spectrum should be re-allocated by issuing spectrum
licences.
(2) The SMA must, by written instrument, prepare a marketing plan for
issuing spectrum licences that authorise the operation of radiocommunications
devices:
(a) at frequencies within that part, or those parts, of the spectrum;
and
(b) within the area or areas specified in the declaration with respect to
that part or those parts.
(3) The marketing plan is to apply to spectrum licences with respect to
that part or those parts that might be issued as mentioned in section
153M.
(4) The marketing plan need not require spectrum licences issued in
accordance with it to apply to the whole of the area or areas to which the
declaration applies.
(5) The marketing plan may indicate:
(a) the procedures to be followed for issuing spectrum licences in
accordance with the plan; and
(b) the timetable for issuing spectrum licences in accordance with the
plan; and
(c) how the spectrum dealt with under the plan is to be apportioned among
the spectrum licences to be issued; and
(d) how much of the spectrum dealt with under the plan is to be reserved
for public or community services; and
(e) the conditions, or types of conditions, that may be included in
spectrum licences to be issued.
(6) Subsection (5) does not, by implication, limit the matters that the
marketing plan may indicate.
(7) In indicating the procedures to be followed for issuing spectrum
licences, the plan may, for example, indicate whether the licences are to be
allocated by auction, by tender, for a pre-determined price or for a negotiated
price.
(8) The marketing plan must not be inconsistent with:
(a) the spectrum plan; or
(b) a frequency band plan that relates, wholly or partly, to the part or
parts of the spectrum to which the marketing plan relates.
15 Subsection 41(2)
Omit “38 or 39”, substitute “38, 39 or
39A”.
16 After subsection 45(6)
Insert:
(6A) Part 3.6 provides for parts of the spectrum to be declared to be
subject to re-allocation.
17 Paragraph 51(2)(b)
Omit “for unencumbered spectrum”.
18 At the end of subsection
51(2)
Add:
; and (d) how section 50 and related provisions of the Trade Practices
Act 1974 apply to the issue of spectrum licences (Subdivision D).
19 Paragraph 52(1)(b)
Repeal the paragraph, substitute:
(b) within an area to which the conversion plan applies.
20 Subdivision B of Division 1 of Part 3.2
(heading)
Repeal the heading, substitute:
21 At the end of section 60
Add:
(5) Procedures determined under subsection (1) may:
(a) impose limits on the aggregate of the parts of the spectrum that, as a
result of the allocation of spectrum licences under this Subdivision, may be
used by:
(i) any one person; or
(ii) a specified person; or
(b) impose limits on the aggregate of the parts of the spectrum that, as a
result of the allocation of spectrum licences under this Subdivision, may, in
total, be used by the members of a specified group of persons.
Note: Persons or groups may be specified by name, by
inclusion in a specified class or in any other way.
(6) A limit imposed as mentioned in subsection (5) may be expressed to
apply in relation to any or all of the following:
(a) a specified part of the spectrum;
(b) a specified area;
(c) a specified population reach.
For example, procedures might specify an aggregate limit of 15 MHz per
person in the band between 1200 MHz and 1300 MHz (inclusive) for a particular
area. This subsection does not, by implication, limit subsection (5).
(7) Procedures determined under subsection (1) may require the SMA to give
specified information to the ACCC.
(8) Subsections (5), (6) and (7) do not, by implication, limit subsection
(1).
(9) The SMA must not determine procedures imposing a limit as mentioned in
subsection (5) unless the SMA is directed to do so by the Minister under
subsection (10).
(10) The Minister may give written directions to the SMA in relation to
the exercise of the power to determine procedures imposing a limit as mentioned
in subsection (5).
(11) A direction under subsection (10) must be published in the
Gazette.
(12) The SMA must exercise its powers under subsection (1) in a manner
consistent with any directions given by the Minister under subsection
(10).
(13) Subsection (10) does not, by implication, limit the Minister’s
power to give directions otherwise than under that subsection.
(14) Before determining procedures under subsection (1), the SMA must
consult the ACCC about whether the procedures should include a requirement
mentioned in subsection (7) and, if so, the nature of the requirement.
22 At the end of section 62
Add:
(3) If the issue of the licence is covered by section 153M (which deals
with re-allocation of spectrum), the SMA may defer the issue of the licence
until the relevant frequencies become available as a result of the expiry,
surrender or cancellation of one or more apparatus licences that, under section
153E, are affected by the spectrum re-allocation declaration
concerned.
23 Subsection 65(3)
Omit “10 years”, substitute “15 years”.
24 At the end of section 66
Add:
(5) If the issue of the licence is covered by section 153M (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 153E, are affected by the spectrum re-allocation
declaration concerned.
(6) Subsection (5) does not, by implication, limit subsection
(1).
Insert:
For the purposes of section 50 and subsections 81(1) and (1A) and 88(9),
89(5A) and 90(9) of the Trade Practices Act 1974, the authorisation, in
accordance with subsection 68(1) of this Act, of a person to operate
radiocommunications devices under a spectrum licence is taken to be an
acquisition by the person of an asset of another person.
26 Section 70
Repeal the section.
27 Subsection 71(2)
Omit “70”, substitute “69”.
28 After section 71
Insert:
(1) For the purposes of section 50 and subsections 81(1), 88(9), 89(5A)
and 90(9) of the Trade Practices Act 1974, the issue of a spectrum
licence to a person is taken to be an acquisition by the person of an asset of
another person.
(2) Subsection (1) does not apply to the re-issue of a spectrum licence
under section 82.
29 Section 83
Omit “Subdivision C of Division 1 applies”, substitute
“Subdivisions C and D of Division 1 apply”.
Note: The heading to section 83 of the
Radiocommunications Act 1992 is altered by omitting “Contents
of” and substituting “General rules about newly-issued
spectrum licences apply to”.
30 Section 83
Omit “it applies”, substitute “those Subdivisions
apply”.
31 After subsection 87(2) (before the
note)
Insert:
(3) Subdivision D of Division 1 applies to the issue of a new licence
under subsection (1) of this section.
32 After subsection 98(2)
Insert:
(2A) For the purposes of this Act, the type of an apparatus licence is to
be ascertained solely by reference to a determination.
33 At the end of subsection
100(5)
Add “otherwise than under section 153J”.
34 Subsection 106(1)
After “system for”, insert “allocating
and/or”.
35 After subsection 106(2)
Insert:
(3) A system so determined may:
(a) impose limits on the number of transmitter licences that the SMA may
issue to:
(i) any one person; or
(ii) a specified person; or
(b) impose limits on the number of transmitter licences that the SMA may,
in total, issue to the members of a specified group of persons.
Note: Persons or groups may be specified by name, by
inclusion in a specified class or in any other way.
(4) A limit imposed as mentioned in subsection (3) may be expressed to
apply in relation to any or all of the following:
(a) a specified part of the spectrum;
(b) a specified area;
(c) a specified population reach.
For example, a system might impose a limit of one transmitter licence per
person in the band between 1800 MHz and 1900 MHz (inclusive) for a particular
area. This subsection does not, by implication, limit subsection (3).
(5) A system so determined may provide that, if the issue of a licence is
covered by section 153N (which deals with re-allocation of spectrum), the SMA
may defer the issue of the licence until the relevant frequencies become
available as a result of the expiry, surrender or cancellation of one or more
other apparatus licences that, under section 153E, are affected by the spectrum
re-allocation declaration concerned.
(6) A system so determined may require the SMA to give specified
information to the ACCC.
(7) Subsections (2), (3), (4), (5) and (6) do not, by implication, limit
subsection (1).
(8) The SMA must not determine a system imposing a limit as mentioned in
subsection (3) unless the SMA is directed to do so by the Minister under
subsection (9).
(9) The Minister may give written directions to the SMA in relation to the
exercise of the power to determine procedures imposing a limit as mentioned in
subsection (3).
(10) A direction under subsection (9) must be published in the
Gazette.
(11) The SMA must exercise its powers under subsection (1) in a manner
consistent with directions given by the Minister under subsection (9).
(12) Before determining a price-based allocation system under subsection
(1), the SMA must consult the ACCC about whether the procedures should include a
requirement mentioned in subsection (6) and, if so, the nature of the
requirement.
36 Subsection 106(3)
Renumber as (13).
37 At the end of section
106
Add:
(14) If:
(a) a transmitter licence of a kind specified for the purposes of
subsection (1) would authorise a person to operate a radiocommunications
transmitter; and
(b) this Act or any other law requires that a person operating a
transmitter:
(i) of that kind; or
(ii) for a purpose for which the transmitter is to be used;
be within a specified class of persons;
the Minister may give the SMA a written direction requiring the SMA, in
determining a price-based allocation system, to limit the persons eligible to
apply for such a transmitter licence to:
(c) persons within that specified class; or
(d) persons not within, but eligible to be within, that class;
or
(e) persons within that class and persons not within, but eligible to be
within, that class.
(15) The SMA must comply with a direction under subsection (14).
(16) A direction under subsection (14) is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(17) Subsections (9) and (14) do not, by implication, limit the
Minister’s power to give directions otherwise than under those
subsections.
38 After section 106
Insert:
(1) For the purposes of section 50 and subsections 81(1), 88(9), 89(5A)
and 90(9) of the Trade Practices Act 1974, the issue of an apparatus
licence to a person is taken to be an acquisition by the person of an asset of
another person.
(2) Subsection (1) does not apply to a transmitter licence issued under
section 102.
(3) Subsection (1) does not apply to the issue of an apparatus licence if
the licence is issued by way of renewal of an existing apparatus licence (see
Division 7).
39 Paragraph 107(1)(e)
Repeal the paragraph.
40 Subsection 107(2)
Omit “(c), (d) and (e)”, substitute “(c) and
(d)”.
41 At the end of section
107
Add:
(5) If the issue of an apparatus licence is covered by section 153N (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 153E, are affected by the spectrum re-allocation declaration
concerned.
(6) Subsection (5) does not, by implication, limit anything in subsection
(1).
Insert:
For the purposes of section 50 and subsections 81(1) and (1A) and 88(9),
89(5A) and 90(9) of the Trade Practices Act 1974, the authorisation, in
accordance with subsection 114(1) of this Act, of a person to operate
radiocommunications devices under an apparatus licence is taken to be an
acquisition by the person of an asset of another person.
43 After subsection 130(2)
Insert:
(2A) The SMA must not renew the licence if:
(a) under section 153E, the licence is affected by a spectrum
re-allocation declaration; and
(b) the licence is due to expire after the end of the re-allocation period
for the spectrum re-allocation declaration.
44 After subsection 130(4)
Insert:
(4A) If:
(a) the SMA renews the licence by issuing a new apparatus licence;
and
(b) under section 153E, the new licence is affected by a spectrum
re-allocation declaration;
the period specified in the new licence for the purposes of subsection
103(2) must end before the end of the re-allocation period for the spectrum
re-allocation declaration.
45 At the end of subsection
147(1)
Add:
; and (f) if, under section 153E, the licence is affected by a spectrum
re-allocation declaration—a note to that effect.
46 After Part 3.5
Insert:
(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 153M); or
(b) by issuing apparatus licences under Division 2 of Part 3.3 (see
section 153N).
(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 153J).
(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.
This subsection has effect subject to section 153C (which deals with the
900 MHz Band Plan).
(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. This subsection has effect subject
to section 153C (which deals with the 900 MHz Band Plan).
(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 153M); or
(b) by issuing apparatus licences under Division 2 of Part 3.3 (see
section 153N).
(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.
(1) This section applies if:
(a) a part of the spectrum (the first part) is specified in
a spectrum re-allocation declaration; and
(b) that part is referred to in Table 4 of the Schedule to the
900 MHz Band Plan.
(2) The spectrum re-allocation declaration must not specify another part
of the spectrum unless:
(a) that other part is also referred to in Table 4 of the Schedule to the
900 MHz Band Plan; and
(b) the allocation cessation date for that other part is the same as the
allocation cessation date for the first part.
(3) The re-allocation period specified in the spectrum re-allocation
declaration must end immediately before the allocation cessation date for the
first part.
(4) Subsection 153B(5) (which deals with the re-allocation deadline) does
not apply in relation to the spectrum re-allocation declaration.
(5) In this section:
allocation cessation date, in relation to a part of the
spectrum referred to in Table 4 of the Schedule to the 900 MHz Band Plan, means
the allocation cessation date that, in accordance with that Table, is applicable
to that part.
900
MHz Band Plan means the 900 MHz Band Plan in force under section
32.
(1) The Minister must give a copy of a spectrum re-allocation declaration
to the SMA.
(2) As soon as practicable after receiving a copy of the declaration, the
SMA must:
(a) prepare a written notice stating:
(i) that the declaration has been made; and
(ii) that affected apparatus licensees can get a free copy of the
declaration from any office of the SMA; and
(b) either:
(i) give each affected apparatus licensee a copy of the notice;
or
(ii) cause a copy of the notice to be published in one or more newspapers
circulating generally in the capital city of each State; and
(c) make copies of the declaration available in accordance with the
notice.
Note: Affected apparatus licensee has the
meaning given by section 153E.
(3) A spectrum re-allocation declaration is a disallowable instrument for
the purposes of section 46A of the Acts Interpretation Act
1901.
(4) In this section:
State includes the Northern Territory and the Australian
Capital Territory.
(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.
(1) The Minister must not make a spectrum re-allocation declaration in
relation to a particular part or parts of the spectrum unless, during the
previous 180 days, the SMA has given the Minister a recommendation under section
153G 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.
(1) The SMA may give the Minister a written recommendation to make a
spectrum re-allocation declaration in relation to one or more specified parts of
the spectrum.
(2) The recommendation must specify the period that, in the SMA’s
opinion, the declaration should specify as the re-allocation period.
(3) Subsection (2) does not, by implication, limit the matters that may be
dealt with by the recommendation.
(1) Before giving the Minister a recommendation under section 153G to make
a spectrum re-allocation declaration, the SMA must:
(a) prepare a written notice:
(i) stating that the SMA has prepared a draft version of the
recommendation; and
(ii) setting out the terms of the draft version; and
(b) either:
(i) give each potentially-affected apparatus licensee a copy of the
notice; or
(ii) cause a copy of the notice to be published in one or more newspapers
circulating generally in the capital city of each State.
(2) The notice must invite each potentially-affected apparatus licensee to
give written comments to the SMA about the draft version of the recommendation
within the specified period after either:
(a) the licensee receives the notice; or
(b) the publication of the notice;
as the case may be. The specified period must run for at least 28
days.
(3) If a potentially-affected apparatus licensee has given comments in
accordance with a notice under this section, then, in preparing the final
version of the recommendation, the SMA must have regard to the
comments.
(4) Subsection (3) does not, by implication, limit the matters to which
the SMA may have regard.
(5) If the Minister is satisfied that:
(a) at a time during the period:
(i) beginning on 1 July 1996; and
(ii) ending immediately before the commencement of this section;
the SMA began a process of consultation about a particular proposal to
re-allocate a part of the spectrum; and
(b) the process may reasonably be regarded as equivalent to the process
set out in subsections (1), (2), (3) and (4) that would otherwise have applied
in relation to a recommendation corresponding to the proposal;
the Minister may, by written notice given to the SMA, exempt the SMA from
compliance with those subsections in relation to a recommendation under section
153G that corresponds to the proposal.
(6) In this section:
potentially-affected apparatus licensee means the licensee of
an apparatus licence, where the licensee would become an affected apparatus
licensee if the spectrum re-allocation declaration were to be made in accordance
with the recommendation.
State includes the Northern Territory and the Australian
Capital Territory.
(1) This section applies to an apparatus licence if:
(a) immediately before the end of the re-allocation period for a spectrum
re-allocation declaration, the licence is affected by the declaration;
and
(b) the licence came into force after the commencement of this
section.
(2) The licence is cancelled under this section at the end of the
re-allocation period.
(1) The Minister must not revoke a spectrum re-allocation declaration
if:
(a) the declaration states that a particular part of the spectrum should
be re-allocated by issuing licences; and
(b) the SMA has begun allocating any or all of those licences.
(2) The Minister must not vary a spectrum re-allocation declaration
if:
(a) the declaration states that a particular part of the spectrum should
be re-allocated by issuing licences; and
(b) the SMA has begun allocating any or all of those licences with respect
to a particular area; and
(c) the variation relates to the whole or a part of that area.
(3) For the purposes of this section, the SMA is taken to begin
allocating licences if, and only if:
(a) in a case where the licences are to be allocated by auction—the
SMA publishes an advertisement for that auction; or
(b) in a case where the licences are to be allocated by tender—the
SMA publishes an advertisement calling for suitable tenders; or
(c) in any other case—the SMA invites applications for the
allocation of the licences.
(4) This section does not prevent the Minister from varying a spectrum
re-allocation declaration so as to extend the re-allocation deadline if the
Minister is of the opinion that there are special circumstances.
(1) This section applies if:
(a) a spectrum re-allocation declaration states that a particular part of
the spectrum should be re-allocated by issuing licences; and
(b) no such licences are allocated before the re-allocation deadline for
the declaration.
(2) The declaration is taken to have been revoked immediately after the
re-allocation deadline.
(3) As soon as practicable after the re-allocation deadline, the SMA must
give each affected apparatus licensee a written notice stating that the
declaration is taken to have been revoked.
(4) Subsection (2) applies despite subsection 153K(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.
(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.
(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.
(1) This section applies if the Minister makes a spectrum re-allocation
declaration under section 153B in relation to a particular part or parts of the
spectrum.
(2) During the re-allocation period, the SMA must not issue a spectrum
licence that authorises the operation of radiocommunications devices:
(a) at frequencies that are within that part, or those parts, of the
spectrum; and
(b) within the area or areas specified in the declaration;
unless:
(c) the licence is issued as mentioned in section 153M (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).
(1) This section applies if a spectrum re-allocation declaration is in
force in relation to a particular part or parts of the spectrum.
(2) During the re-allocation period, the SMA must not issue an apparatus
licence that authorises the operation of radiocommunications devices:
(a) at frequencies that are within that part, or those parts, of the
spectrum; and
(b) within the area or areas specified in the declaration;
unless:
(c) the licence is issued as mentioned in section 153N (which deals with
re-allocation of spectrum by issuing apparatus licences); or
(d) the licence is issued by way of renewal of an apparatus licence (see
Division 7 of Part 3.3); or
(e) the SMA is satisfied that the special circumstances of the particular
case justify the issuing of the licence.
(3) After the end of the re-allocation period, the SMA must not issue an
apparatus licence that authorises the operation of radiocommunications
devices:
(a) at frequencies that are within that part, or those parts, of the
spectrum; and
(b) within the area or areas specified in the declaration;
unless the SMA is satisfied that the special circumstances of the
particular case justify the issuing of the licence.
47 At the end of subsection
155(2)
Add:
; and (f) protect the health and safety of persons who:
(i) operate radiocommunications transmitters or radiocommunications
receivers; or
(ii) work on radiocommunications transmitters or radiocommunications
receivers; or
(iii) use services supplied by means of radiocommunications transmitters
or radiocommunications receivers; or
(iv) are reasonably likely to be affected by the operation of
radiocommunications transmitters or radiocommunications receivers.
48 Paragraph 156(e)
Repeal the paragraph.
49 Paragraph 156(f)
Omit “, technical licence specifications”.
50 After subsection 157(1)
Insert:
(2) If the transmitter referred to in subsection (1) is a non-standard
transmitter solely because of non-compliance with an EMC standard, subsection
(1) does not apply to the transmitter unless:
(a) the person referred to in that subsection is a corporation to which
paragraph 51(xx) of the Constitution applies; or
(b) the radio emission referred to in that subsection was made as a result
of the device being operated in the course of, or in relation to:
(i) trade or commerce between Australia and places outside Australia; or
(ii) trade or commerce among the States; or
(iii) trade or commerce within a Territory, between a State and a
Territory or between 2 Territories; or
(iv) the supply of goods or services to the Commonwealth, to a Territory
or to an authority or instrumentality of the Commonwealth or of a Territory;
or
(v) the defence of Australia; or
(vi) the operation of lighthouses, lightships, beacons or buoys;
or
(vii) astronomical or meteorological observations; or
(viii) an activity of a corporation to which paragraph 51(xx) of the
Constitution applies; or
(ix) banking, other than State banking; or
(x) insurance, other than State insurance; or
(xi) weighing or measuring; or
(c) the radio emission referred to in that subsection was likely to
interfere with the operation of another device, where that operation was in the
course of, or in relation to:
(i) trade or commerce between Australia and places outside Australia; or
(ii) trade or commerce among the States; or
(iii) trade or commerce within a Territory, between a State and a
Territory or between 2 Territories; or
(iv) the supply of goods or services to the Commonwealth, to a Territory
or to an authority or instrumentality of the Commonwealth or of a Territory;
or
(v) the defence of Australia; or
(vi) the operation of lighthouses, lightships, beacons or buoys;
or
(vii) astronomical or meteorological observations; or
(viii) an activity of a corporation to which paragraph 51(xx) of the
Constitution applies; or
(ix) banking, other than State banking; or
(x) insurance, other than State insurance; or
(xi) weighing or measuring; or
(d) the radio emission referred to in that subsection was likely to
interfere with:
(i) radiocommunications; or
(ii) broadcasting services (within the meaning of the Broadcasting
Services Act 1992); or
(iii) telecommunications services (within the meaning of the
Telecommunications Act 1991); or
(iv) any other postal, telegraphic, telephonic or other like
service.
51 Subsection 157(2)
Renumber the subsection as (3).
52 Subsection 158(1)
Omit “transmitter” (wherever occurring), substitute
“device”.
Note: The heading to section 158 of the
Radiocommunications Act 1992 is altered by omitting
“transmitters” and substituting
“devices”.
53 After subsection 158(1)
Insert:
(2) If the device referred to in subsection (1) is a non-standard device
solely because of non-compliance with an EMC standard, subsection (1) does not
apply to the possession of the device unless:
(a) the person referred to in that subsection is a corporation to which
paragraph 51(xx) of the Constitution applies; or
(b) the operation referred to in that subsection is in the course of, or
in relation to:
(i) trade or commerce between Australia and places outside Australia; or
(ii) trade or commerce among the States; or
(iii) trade or commerce within a Territory, between a State and a
Territory or between 2 Territories; or
(iv) the supply of goods or services to the Commonwealth, to a Territory
or to an authority or instrumentality of the Commonwealth or of a Territory;
or
(v) the defence of Australia; or
(vi) the operation of lighthouses, lightships, beacons or buoys;
or
(vii) astronomical or meteorological observations; or
(viii) an activity of a corporation to which paragraph 51(xx) of the
Constitution applies; or
(ix) banking, other than State banking; or
(x) insurance, other than State insurance; or
(xi) weighing or measuring; or
(c) the operation referred to in that subsection was likely to interfere
with the operation of another device, where the operation of that other device
was in the course of, or in relation to:
(i) trade or commerce between Australia and places outside Australia; or
(ii) trade or commerce among the States; or
(iii) trade or commerce within a Territory, between a State and a
Territory or between 2 Territories; or
(iv) the supply of goods or services to the Commonwealth, to a Territory
or to an authority or instrumentality of the Commonwealth or of a Territory;
or
(v) the defence of Australia; or
(vi) the operation of lighthouses, lightships, beacons or buoys;
or
(vii) astronomical or meteorological observations; or
(viii) an activity of a corporation to which paragraph 51(xx) of the
Constitution applies; or
(ix) banking, other than State banking; or
(x) insurance, other than State insurance; or
(xi) weighing or measuring; or
(d) the operation referred to in that subsection was likely to interfere
with:
(i) radiocommunications; or
(ii) broadcasting services (within the meaning of the Broadcasting
Services Act 1992); or
(iii) telecommunications services (within the meaning of the
Telecommunications Act 1991); or
(iv) any other postal, telegraphic, telephonic or other like
service.
54 Subsection 158(2)
Renumber the subsection as (3).
55 Subsection 158(2)
Omit “transmitters”, substitute
“devices”.
56 Subsection 158(2)
Omit “transmitter” (wherever occurring), substitute
“device”.
57 Subsection 158(2)
Omit “TRANSMITTER”, substitute “DEVICE”.
58 Section 159
Omit “transmitter” (wherever occurring), substitute
“device”.
Note: The heading to section 159 of the
Radiocommunications Act 1992 is altered by omitting
“transmitters” and substituting
“devices”.
59 Subsection 159(1)
Omit “transmitter’s” (wherever occurring), substitute
“device’s”.
60 After subsection 160(1)
Insert:
(2) If the device referred to in subsection (1) is a non-standard device
solely because of non-compliance with an EMC standard, subsection (1) does not
apply to the supply of the device unless:
(a) the person referred to in that subsection is a corporation to which
paragraph 51(xx) of the Constitution applies; or
(b) the supply referred to in that subsection
was:
(i) supply in the course of, or in relation to, trade or commerce between
Australia and places outside Australia; or
(ii) supply in the course of, or in relation to, trade or commerce among
the States; or
(iii) supply in the course of, or in relation to, trade or commerce within
a Territory, between a State and a Territory or between 2 Territories;
or
(iv) supply to the Commonwealth, to a Territory or to an authority or
instrumentality of the Commonwealth or of a Territory.
61 Subsection 160(2)
Renumber the subsection as (3).
62 Paragraph 162(3)(c)
Omit “radiocommunications devices” (wherever occurring),
substitute “radiocommunications transmitters or radiocommunications
receivers”.
63 At the end of subsection
162(3)
Add:
; or (e) establishing for the uses or functions of devices an adequate
level of immunity from electromagnetic disturbances caused by the use of other
devices; or
(f) protecting the health or safety of persons who:
(i) operate radiocommunications transmitters or radiocommunications
receivers; or
(ii) work on radiocommunications transmitters or radiocommunications
receivers; or
(iii) use services supplied by means of radiocommunications transmitters
or radiocommunications receivers; or
(iv) are reasonably likely to be affected by the operation of
radiocommunications transmitters or radiocommunications receivers.
64 At the end of subsection
163(1)
Add:
Note: This subsection has effect subject to section 163A
(which deals with the SMA’s power to make standards in cases of
urgency).
65 After section 163
Insert:
(1) The SMA is not required to comply with subsection 163(1) in relation
to the making of a particular standard if the SMA is satisfied that it is
necessary to make the standard as a matter of urgency in order to protect the
health or safety of persons who:
(a) operate radiocommunications transmitters or radiocommunications
receivers; or
(b) work on radiocommunications transmitters or radiocommunications
receivers; or
(c) use services supplied by means of radiocommunications transmitters or
radiocommunications receivers; or
(d) are reasonably likely to be affected by the operation of
radiocommunications transmitters or radiocommunications receivers.
(2) If subsection (1) applies to a standard (the urgent
standard), the urgent standard ceases to have effect 12 months after it
came into operation. However, this rule does not prevent the SMA from revoking
the urgent standard and making another standard under section 162
that:
(a) is not a standard to which subsection (1) applies; and
(b) deals with the same subject matter as the urgent standard.
66 Division 4 of Part 4.1
(heading)
Repeal the heading, substitute:
67 Paragraph 166(b)
Omit “transmitter”, substitute “device”.
68 Section 166
Omit “transmitter” (last occurring), substitute
“device”.
69 Subsections 167(2) and
(3)
Omit “transmitters” (wherever occurring), substitute
“devices”.
70 Section 172
Omit “transmitter” (last occurring), substitute
“device”.
71 Paragraph 173(1)(a)
Omit “transmitter”, substitute “device”.
72 Division 6 of Part 4.1
Repeal the Division.
73 Subsection 182(1)
Omit “one or more”, substitute “either or
both”.
74 Paragraph 182(1)(b)
Repeal the paragraph.
75 Subsection 182(1B)
Omit “one or more”, substitute “either or
both”.
76 Paragraph 182(1B)(b)
Repeal the paragraph.
77 Paragraph 182(4A)(b)
Omit “, technical licence specifications”.
78 Subsection 184(1)
Omit “, technical licence specification”.
79 Paragraph 184(2)(a)
Omit “, technical licence specification”.
80 At the end of section
186
Add:
(2) In addition to its effect apart from this subsection, subsection (1)
also has the effect it would have if each reference in that subsection to a
device were, by express provision, confined to:
(a) a radiocommunications transmitter; or
(b) a radiocommunications receiver; or
(c) a device, where the operation of the device is likely to interfere
with radiocommunications; or
(d) a device, where the uses or functions of the device are likely to be
interfered with by the operation of radiocommunications transmitters.
(3) In addition to its effect apart from this subsection, subsection (1)
also has the effect it would have if each reference in that subsection to a
person were, by express provision, confined to a corporation to which paragraph
51(xx) of the Constitution applies.
(4) In addition to its effect apart from this subsection, subsection (1)
also has the effect it would have if each reference in that subsection to sell
or supply were, by express provision, confined to sell or supply:
(a) in the course of, or in relation to:
(i) trade or commerce between Australia and places outside Australia;
or
(ii) trade or commerce among the States; or
(iii) trade or commerce within a Territory, between a State and a
Territory or between 2 Territories; or
(b) to the Commonwealth, to a Territory or to an authority or
instrumentality of the Commonwealth or of a Territory.
81 At the end of section
187
Add:
(2) In addition to its effect apart from this subsection, subsection (1)
also has the effect it would have if the reference in that subsection to a
device were, by express provision, confined to:
(a) a radiocommunications transmitter; or
(b) a radiocommunications receiver; or
(c) a device, where the operation of the device is likely to interfere
with radiocommunications; or
(d) a device, where the uses or functions of the device are likely to be
interfered with by the operation of radiocommunications transmitters.
(3) In addition to its effect apart from this subsection, subsection (1)
also has the effect it would have if each reference in that subsection to a
person were, by express provision, confined to a corporation to which paragraph
51(xx) of the Constitution applies.
(4) In addition to its effect apart from this subsection, subsection (1)
also has the effect it would have if each reference in that subsection to a
person were, by express provision, confined to a person who manufactured or
imported the device for the purposes of supply:
(a) in the course of, or in relation to:
(i) trade or commerce between Australia and places outside Australia;
or
(ii) trade or commerce among the States; or
(iii) trade or commerce within a Territory, between a State and a
Territory or between 2 Territories; or
(b) to the Commonwealth, to a Territory or to an authority or
instrumentality of the Commonwealth or of a Territory.
82 At the end of section
187A
Add:
(2) In addition to its effect apart from this subsection, subsection (1)
also has the effect it would have if each reference in that subsection to a
device were, by express provision, confined to:
(a) a radiocommunications transmitter; or
(b) a radiocommunications receiver; or
(c) a device, where the operation of the device is likely to interfere
with radiocommunications; or
(d) a device, where the uses or functions of the device are likely to be
interfered with by the operation of radiocommunications transmitters.
(3) In addition to its effect apart from this subsection, subsection (1)
also has the effect it would have if the reference in that subsection to a
manufacturer or importer were, by express provision, confined to a manufacturer,
or an importer, that is a corporation to which paragraph 51(xx) of the
Constitution applies.
(4) In addition to its effect apart from this subsection, subsection (1)
also has the effect it would have if each reference in that subsection to a
manufacturer or importer were, by express provision, confined to a manufacturer,
or an importer, who manufactured or imported the device for the purposes of
supply:
(a) in the course of, or in relation to:
(i) trade or commerce between Australia and places outside Australia;
or
(ii) trade or commerce among the States; or
(iii) trade or commerce within a Territory, between a State and a
Territory or between 2 Territories; or
(b) to the Commonwealth, to a Territory or to an authority or
instrumentality of the Commonwealth or of a Territory.
83 At the end of subsection
190(2)
Add:
; or (c) is a radiocommunications transmitter, or a radiocommunications
receiver, that would be reasonably likely to have an adverse effect on the
health or safety of persons who:
(i) operate the device; or
(ii) work on the device; or
(iii) use services supplied by means of the device; or
(iv) are reasonably likely to be affected by the operation of the
device.
84 After paragraph 233(k)
Insert:
(ka) if requested to do so—to provide services or facilities, on a
commercial basis, where:
(i) the services or facilities relate to radiocommunications; or
(ii) the provision of the services or facilities utilises the SMA’s
spare capacity; or
(iii) the provision of the services or facilities maintains or improves
the specialised technical skills of the SMA’s staff in relation to
radiocommunications or telecommunications; and
85 At the end of section
233
Add:
(2) Paragraph (1)(ka) does not authorise the SMA to perform a function if
the performance of the function would impede the SMA’s capacity to perform
its other functions.
(3) In this section:
telecommunications means the carriage of communications by
means of guided and/or unguided electromagnetic energy.
86 Subsection 238(2)
Omit “or technical licence specifications”.
87 Paragraph 262(2)(a)
Omit “or technical licence specifications”.
88 Section 293
Omit “recovering its costs relating to”.
89 At the end of section
293
Add:
(2) A charge fixed under subsection (1) must be reasonably related to the
expenses incurred or to be incurred by the SMA in relation to the matters to
which the charge relates and must not be such as to amount to
taxation.
(3) This section does not apply to services or facilities that the SMA
provides under contract.
90 Paragraph 303(h)
Omit “and technical licence specifications”.
91 Section 312
After “Part 3.2” insert “or 3.3”.
92 Continuity of section 60
determinations
The amendments of section 60 of the Radiocommunications Act 1992
made by this Schedule do not affect the continuity of a determination that was
in force under that section immediately before the commencement of this
item.
93 Continuity of section 106
determinations
The amendments of section 106 of the Radiocommunications Act 1992
made by this Schedule do not affect the continuity of a determination that was
in force under that section immediately before the commencement of this
item.
94 Continuity of section 293
determinations
The amendments of section 293 of the Radiocommunications Act 1992
made by this Schedule do not affect the continuity of a determination that was
in force under that section immediately before the commencement of this
item.