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House of Representatives

Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020

Explanatory Memorandum

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

OUTLINE

The Radiocommunications Legislation Amendment (Reform and Modernisation) Bill 2020 (the Bill) will amend the Radiocommunications Act 1992 to implement recommendations of the 2015 Spectrum Review (the Spectrum Review) and fulfil the Australian Government's commitment to modernise the legislative framework for spectrum management.

The technological landscape has changed significantly since the original legislative framework was first introduced in 1992. Regulatory arrangements for spectrum management must not only respond to these changes, but also be flexible enough to adapt to future innovation and changing demand for spectrum. The Bill is designed to add flexibility to the legislative framework, remove unnecessary prescription and legislative barriers, and improve processes, helping the framework remain fit for purpose in a rapidly changing environment.

The primary measures in the Bill will:

·
clarify the object of the Act and the roles of the Minister and the Australian Communications and Media Authority (ACMA): the Minister will have less involvement in day-to-day spectrum management decisions that are more properly the responsibility of the regulator, and will have the power to issue Ministerial policy statements to guide ACMA in the performance of its spectrum management functions. In addition, ACMA will also be required to prepare annual work programs to provide transparency around how it will perform its spectrum management functions
·
streamline spectrum allocation and re-allocation processes: ACMA will have greater flexibility to develop fit-for-purpose allocation arrangements in order to bring spectrum to market within shorter timeframes where this is appropriate
·
improve flexibility and reduce regulatory barriers between licence types: the maximum licence term for both apparatus licences and spectrum licences will be extended to 20 years, with less regulatory barriers and more flexibility in the allocation process, and clearer processes governing renewal of licences
·
better reflect modern spectrum needs and supply chains: device supply schemes and equipment regulation will be streamlined, and ACMA will be empowered to provide new exemptions in appropriate circumstances to facilitate testing, development and manufacturing of otherwise controlled devices
·
introduce a modernised compliance and enforcement regime with more graduated enforcement mechanisms for breaches of the framework: this will give ACMA a greater range of options beyond the institution of criminal proceedings.

FINANCIAL IMPACT STATEMENT

It is anticipated that the Bill will have no financial impact.

REGULATORY IMPACT STATEMENT

The Spectrum Review was certified by the then Department of Communications and the Arts as an independent review for the purposes of assessing regulatory impacts.

The amendments in this Bill are intended to give effect to the recommendations of the Spectrum Review as set out in the below comparison table.

These amendments have been developed following consideration of recommendations from the 2015 Spectrum Review. The Spectrum Review has been certified as an independent review for RIS purposes (OBPR ref:19096). These reforms are estimated to result in an annual reduction in regulatory cost savings of $0.3m.

Comparison table of the 2015 Spectrum Review and the Bill

Spectrum review recommendation 2020 proposal regulatory cost estimates ($AUD)
1. Given technological change and increasing demands for spectrum the current

legislative framework (the Radiocommunications Act 1992) should be replaced by

arrangements that provide for greater market-based activity, including by increasing the opportunity for spectrum holders to share and trade spectrum and simplify regulatory structures, streamline regulatory processes and clarify the role of

Government.

a) Establishing a single licensing system based around a limited number of parameters of the licence In the proposed reforms the multi-licensing system remains, however, the licence types have been brought closer together to achieve the benefits of a single licensing system without the transition costs, so that further consideration can be given to the implementation of a single-licensing system.

The reforms have clarified the conditions that must be met in order for a licence to be issued or renewed, and improved and streamlined the current regulatory barriers between the licence types so that there is more flexibility, consistent with the overall recommendation to streamline regulatory processes.

For example, under the proposed reforms:

·
the maximum licence term for both apparatus licences and spectrum licences will be extended to 20 years
·
regulatory barriers that limit the issuance of both spectrum and apparatus licences in certain circumstances are to be removed, to enable ACMA to issue the most appropriate licence in the circumstances (as they would if there was only one licence type)
·
the conditions that must be met in order for a licence to be issued or renewed have been more clearly stated, and consistent between licence types. This can be seen in the criteria for renewal for long-term apparatus and spectrum licences including an evaluation of the public interest.

-726,000
b) Integrating the management of broadcasting spectrum Not applicable - not being progressed at this stage.
c) Clarifying the roles and responsibilities of the Minister and ACMA under the framework In the proposed reforms the Minister's role has been clearly defined so that the Minister will have more involvement in the setting of policy and less involvement in spectrum management decisions that are more properly the responsibility of the regulator. The proposed reforms also include requirements for ACMA to provide greater transparency around its planning and management functions. There are avenues for the Minister to intervene where necessary.

For example under these reforms the Minister will have the power to issue Ministerial policy statements to guide ACMA in the performance of its spectrum management functions. In addition, ACMA will also be required to prepare annual work programs to provide transparency around how it will perform its spectrum management functions, and then report on how it achieved the work program and how it took into account any Ministerial Policy Statements.

NIL
d) Providing for transparent and timely spectrum allocation and reallocation processes and methods In the proposed reforms ACMA will have greater flexibility to develop fit-for-purpose allocation arrangements in order to bring spectrum to market within shorter timeframes where this is appropriate. These amendments are designed to streamline allocation processes and remove legislative barriers to replanning. This has been achieved through the removal of some constraints in the spectrum allocation and reallocation processes, particularly around sequences of activities and timeframes and improved flexibility in the process so that it can adapt to market changes.

For example, in the proposed reforms there is now a power for ACMA to directly allocate spectrum licences. Direct allocation will serve to partially replace the current conversion processes and will also provide a more straightforward process than is currently available in the legislation, for use in situations where it is preferable to allocate a spectrum licence to a particular person. Similarly, for Spectrum Re-allocations Declarations, the proposed reforms will empower ACMA to issue these declarations, whereas it would previously make recommendations to the Minister to issue a declaration, removing unnecessary prescription in the steps that must be taken to re-allocate spectrum to meet the needs of spectrum users.

NIL
e) Providing more opportunities for spectrum users to participate in spectrum management Accreditation schemes play an important role in helping ACMA perform its spectrum management functions. The accreditation scheme in the Act allows ACMA to outsource certain kinds of administrative or technical work to qualified individuals, freeing up ACMA to focus on other regulatory work and creating new business opportunities within the radiocommunications industry.

Given the success of this scheme and the recommendation of the Spectrum Review that spectrum users be given more opportunities to participate in spectrum management, these amendments propose to expand the scope of the accreditation scheme, and provide ACMA with the flexibility to adopt similar models to other areas of the Act.

NIL
f) Streamlining device supply schemes The proposed reforms improve technical regulation and streamline device supply schemes by removing prescriptive legislative requirements and authorising ACMA to develop schemes in line with risk. They also expand relevant provisions in the Act to enable ACMA to make rules or principles that will prevent devices entering the market that are likely to cause interference or harm to human health and to mitigate the risk from harmful equipment that has entered the market.

For example, currently ACMA is not able to impose obligations such as record-keeping rules on persons in the supply chain who are not manufacturers, importers or agents of importers, even in situations where intermediaries are the most appropriate entity to regulate. The amendments would grant ACMA greater flexibility in identifying who in a supply chain is responsible for device compliance.

NIL
g) Improving compliance and enforcement by introducing proportionate and graduated enforcement mechanisms for breaches of the legislative framework The proposed reforms introduce a modernised compliance and enforcement regime with more graduated enforcement mechanisms for breaches of the framework: this will give ACMA a greater range of options beyond the institution of criminal proceedings. This includes information gathering powers intended to support ACMA in carrying out its spectrum management functions, including spectrum planning, interference management, monitoring compliance and targeting its education initiatives, all of which can be constrained by limited access to information.

For example, the proposed reforms adopt all of the powers in the Regulatory Powers Act (monitoring, investigation, civil penalty provisions, infringement notices, enforceable undertakings and injunctions), as well as a number of additional mechanisms, including remedial directions, forfeiture notices and public warning notices. The criminal offences have been amended to take account of developments in policy and contemporary practice on the framing and operation of Commonwealth offences.

448,000
h) Ensuring that the rights of existing licence holders are not diminished in the transition to the new framework To ensure processes underway at the time the reforms commence are able to continue without disruption, the Bill contains transitional provisions that:

·
provide that spectrum re-allocation declarations and any marketing plans that are currently in force will continue to apply, so that major spectrum allocations currently underway are not disrupted
·
allow any ongoing processes to convert apparatus licences to spectrum licences to continue where an offer of a spectrum licence has been made prior to the commencement
·
allow existing applications for the renewal of an apparatus licence to be continued under the existing arrangements
·
only require new licences to contain a renewal statement and a renewal application period statement
·
allow the existing standards and compliance labelling notices to serve as the initial equipment rules, to give ACMA time to consult with industry on the content and operation of the first set of equipment rules to be issued under the reforms.

The Department and ACMA will continue to provide advice to stakeholders on the implementation of the reforms, and will work together on transitional plans to support a smooth commencement of the new arrangements.

NIL
TOTAL: -278,000
2. Recognising that how public sector agencies account for and deal with assets is a separate policy matter for Government i. requiring public sector agencies that hold spectrum to regularly report the value of their holdings ii. permitting agencies to either lease or sell the spectrum and retain the benefit of doing so. Not applicable - this recommendation was addressed in the development of the Commonwealth Held Spectrum Review and the subsequent publishing of the Australian Government Held Spectrum Report (which is designed to be updated every two years).
3. That the Department review the arrangements for pricing of spectrum (including exemptions, concessions, administrative charges and taxes) so that these are consistent, transparent and support efficient use in secondary markets. Not applicable - this recommendation was addressed through the Spectrum Pricing Review (the recommendations of which were accepted by Government in March 2018).


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