House of Representatives

Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020

Addendum to the Explanatory Memorandum

(Circulated by authority of the Minister for Communications, Cyber Safety and the Arts the Honourable Paul Fletcher MP)


This addendum to the explanatory memorandum to the Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 provides further explanation of the provisions of the Bill.

This addendum also responds to concerns raised by the Senate Standing Committee for the Scrutiny of Bills, in Scrutiny Digest No. 14 of 2020, dated 16 October 2020.


Schedule 4 - Equipment etc.

Part 1 - Amendment of the Radiocommunications Act 1992

Division 4 - Bans on equipment

Subdivision A - Interim bans

Section 167 - Interim bans on equipment

Non-compliant equipment can pose significant risks of harmful interference to radiocommunications or to the health and safety of the community. In order to manage these risks, interim bans and permanent bans on equipment have been developed with the intention of providing ACMA with a variety of tools to manage risk.

An interim ban is intended to be utilised as a temporary, short-term administrative measure for the management of risks of immediate harm. The power to make an interim ban is focussed on managing the risk of immediate harm to persons posed by equipment in the short term, so that ACMA is given sufficient time to determine whether a permanent ban ought to be issued. Long-term management of risks will be managed through permanent bans made by legislative instrument, as provided for by section 172.

Section 168 - Duration of interim bans

It is intended that interim bans are short-term administrative measures to be applied to risks of immediate harm. Given this, under the proposed changes to the Act, an interim ban on equipment would only be valid for 60 days, with a potential extension for up to a further 30 days, in which time ACMA could, if necessary, develop a permanent ban. Details around the use and implementation of permanent bans can be found in Section 172.

Section 169 - Revocation of interim bans

An interim ban may be imposed if ACMA has a reasonable belief that the situation meets the requirements of proposed section 167 of the Bill. This section provides that ACMA has the power to revoke an interim ban issued under section 167 through notifiable instrument. Given interim bans under section 167 are short term administrative measures to manage the risks of immediate harm made by notifiable instrument, it is appropriate that ACMA have the power to revoke that interim ban by notifiable instrument as well.

Section 179 - Amnesty for banned equipment

Section 179 provides that ACMA may, by notifiable instrument, declare an amnesty period for a specified permanent ban.

In the management of permanent bans made under section 172, the ACMA may opt to utilise its powers of amnesty as a management tool for the reduction of risk associated with hazardous equipment. This will provide temporary amnesty to hazardous equipment, the subject of a permanent ban, continuing to circulate in the industry. An amnesty is designed as an administrative tool to increase the effectiveness of a permanent ban by ameliorating the potential harshness of a permanent ban on persons who are in possession of prohibited equipment and the time the ban comes into force.

Transparency around these decisions is managed through amnesty being made through notifiable instrument.

Schedule 5 - Accreditation etc.

Part 1 - Amendment of the Radiocommunications Act 1992

Section 266 - Accreditation rules

The revised Section 266 of the Act makes new provisions which enable ACMA to make accreditation rules to specify accreditation process, procedures for accrediting persons or withdrawing the accreditation of a person. In a number of provisions (including sections 71, 73A, 110A, 111A, 162, and 313B) the Bill provides for licences or legislative instruments to confer administrative powers on accredited persons and sets out arrangements for the accredited persons to be empowered to charge fees (not amounting to taxation) for their services.

The information and administrative functions performed by accredited persons are preliminary steps to final decisions that are made by ACMA. Most notably the Bill allows accredited persons to undertake work for licensees and applicants under the Act. As part of these revisions, ACMA is able to determine the qualifications and other requirements required before a person can be given a kind of accreditation.

The ACMA will retain all formal decision making powers under the Act, such as issuing a permit under the equipment rules. In this case, the Bill allows accredited persons to undertake work of an administrative character, such as reviewing a permit application and making a recommendation to ACMA as the formal decision-maker and for that person to charge the applicant for this work.

Section 285 - Decisions that may be subject to reconsideration by the ACMA

Section 285 provides for the review of specified decisions made by ACMA under the Act. Under this section, the appropriate point of judicial or administrative review is the decision of ACMA, with relevant decisions subject to reconsideration and review under section 285 of the Act (subject to the provisions of the Accreditation Rules).

Accredited persons have become significant contributors to the management of radiocommunications licensing over the last 20 years. The expansion of accreditation arrangements in this Bill would provide more opportunities for spectrum users to participate in spectrum management. ACMA will consult stakeholders on any expanded accreditation arrangements as it develops and implements arrangements under the Bill.

Section 298A - Fees imposed by bodies or organisations

Section 298A provides that ACMA may, by notifiable instrument, determine that a specified body or organisation approved by ACMA as under paragraph (b) of subsection 122(2) may charge fees for performing their accredited action, and stipulates that the fee must not amount to taxation.

Accredited persons generally provide services to licensees and assist licensees in their application for a licence as part of a broader set of commercial consulting services that they offer to the licensee. As accredited persons, the information that they provide to ACMA, such as a frequency assignment certificate to support an application for an apparatus licence, is used by ACMA to assist it in the decision it makes under the Act.

Neither ACMA nor the Commonwealth will be a party to such contracts between licensees and accredited persons.

Schedule 8 - Miscellaneous

Part 1 - Amendment of the Radiocommunications Act 1992

Section 305A - Computerised decision-making

Item 10 inserts Section 305A, which allows ACMA to use computer programs in the exercise of its powers and specifies how this system is applied in the legislative framework of the Act. This enables ACMA to arrange for computer programs under its control to make decisions, exercise powers, comply with obligations or do anything related to the making of a decision, exercising a power or complying with obligations.

Under this provision, ACMA would use automated decision making where the process of making a decision is uncomplicated, for example, the renewal of short term apparatus licences where the relevant requirements are generally the provision of required information, compliance with licence conditions, and payment of fees. In these cases, computerised decision making will be more efficient and accurate than manual decisions. It is not intended that computerised decision making would be used for complex decisions which may require additional scrutiny by an officer of ACMA, for example, the renewal of a 20 year apparatus licence.

The design of the computerised decision making process will take into account administrative law requirements including ACMA being required to substitute a decision where it is satisfied that the computerised decision making system has made the wrong decision. ACMA would also be able to facilitate the efficient consideration of matters relevant to the application, and adjust the system so that the use of a computerised system does not lead to inappropriate outcomes. For example, in the case of licence renewal, where ACMA must not renew a licence where it would be inconsistent with the Australian Radiofrequency Spectrum Plan (due to the operation of section 104 of the Act), ACMA would be able to identify licences falling into this category following a change in the ARSP and mark them so they are not able to be renewed by the system. In this way, human administrative judgment would oversee the system where it may make a decision that is contrary to the interests of an individual.

Decisions made by ACMA using a computer based process would be subject to independent review under the Act.