RADIOCOMMUNICATIONS LEGISLATION AMENDMENT (REFORM AND MODERNISATION) BILL 2020

2019-2020

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Radiocommunications Legislation

Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(Communications, Cyber Safety and the Arts)

A Bill for an Act to amend the

Radiocommunications Act 1992

, and for other

purposes

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Contents

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

Commencement ................................................................................. 1

Schedules ........................................................................................... 3

Schedule 1--Object

Radiocommunications Act 1992

Schedule 2--Policy statements and work program

Part 1--Amendment of the Radiocommunications Act 1992

Radiocommunications Act 1992

Part 2--Other amendments

Australian Communications and Media Authority Act 2005

Part 3--Application provisions

Schedule 3--Licences etc.

Part 1--Amendment of the Radiocommunications Act 1992

Radiocommunications Act 1992

Part 2--Application and transitional provisions

Schedule 4--Equipment etc.

Part 1--Amendment of the Radiocommunications Act 1992

Radiocommunications Act 1992

Part 2--Amendments contingent on the commencement of the

Federal Circuit and Family Court of Australia Act

2020

Radiocommunications Act 1992

Part 3--Other amendments

Australian Communications and Media Authority Act 2005

Telecommunications Act 1997

Trans-Tasman Mutual Recognition Act 1997

Part 4--Application and transitional provisions

100

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Schedule 5--Accreditation etc.

113

Part 1--Amendment of the Radiocommunications Act 1992

113

Radiocommunications Act 1992

113

Part 2--Application and transitional provisions

120

Schedule 6--Compliance and enforcement

124

Part 1--Amendment of the Radiocommunications Act 1992

124

Radiocommunications Act 1992

124

Part 2--Consequential amendments

172

Australian Communications and Media Authority Act 2005

172

Telecommunications (Interception and Access) Act 1979

172

Part 3--Amendments contingent on the commencement of the

Federal Circuit and Family Court of Australia Act

2020

174

Radiocommunications Act 1992

174

Part 4--Transitional provisions

175

Division 1--General

175

Division 2--Infringement notices

181

Division 3--Enforceable undertakings

181

Part 5--Eligible States

183

Schedule 7--Information-gathering powers

184

Part 1--Amendments

184

Radiocommunications Act 1992

184

Part 2--Transitional provisions

190

Schedule 8--Miscellaneous

192

Part 1--Amendment of the Radiocommunications Act 1992

192

Radiocommunications Act 1992

192

Part 2--Transitional provisions

201

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

iii

Schedule 9--Datacasting

203

Part 1--Amendment of the Radiocommunications Act 1992

203

Radiocommunications Act 1992

203

Part 2--Other amendments

207

Australian Communications and Media Authority Act 2005

207

Broadcasting Services Act 1992

207

Competition and Consumer Act 2010

212

Income Tax Assessment Act 1997

212

Part 3--Transitional provisions

214

Schedule 10--Public inquiries

215

Part 1--Amendment of the Radiocommunications Act 1992

215

Radiocommunications Act 1992

215

Part 2--Other amendments

216

Australian Communications and Media Authority Act 2005

216

Schedule 11--Duration of licences

217

Radiocommunications Act 1992

217

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

A Bill for an Act to amend the

Radiocommunications Act 1992

, and for other

purposes

The Parliament of Australia enacts:

1 Short title

This Act is the

Radiocommunications Legislation Amendment

(Reform and Modernisation) Act 2020

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

3. Schedules 2

and 3

At the same time as the provisions covered

by table item 2.

4. Schedule 4,

Part 1

At the same time as the provisions covered

by table item 2.

5. Schedule 4,

Part 2

The later of:

(a) immediately after the commencement of

the provisions covered by table item 4;

and

(b) the commencement of the

Federal

Circuit and Family Court of Australia

Act 2020

However, the provisions do not commence

at all if the event mentioned in paragraph (b)

does not occur.

6. Schedule 4,

Parts 3 and 4

At the same time as the provisions covered

by table item 2.

7. Schedule 5

At the same time as the provisions covered

by table item 2.

8. Schedule 6,

Parts 1 and 2

At the same time as the provisions covered

by table item 2.

9. Schedule 6,

Part 3

The later of:

(a) immediately after the commencement of

the provisions covered by table item 8;

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

and

(b) the commencement of the

Federal

Circuit and Family Court of Australia

Act 2020

However, the provisions do not commence

at all if the event mentioned in paragraph (b)

does not occur.

10. Schedule 6,

Part 4

At the same time as the provisions covered

by table item 2.

11. Schedule 6,

Part 5

The day after this Act receives the Royal

Assent.

12. Schedules 7

to 10

At the same time as the provisions covered

by table item 2

13. Schedule 11

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedules

Legislation that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Schedule 1

Object

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Schedule 1--Object

Radiocommunications Act 1992

1 Section 3

Repeal the section, substitute:

3 Object

The object of this Act is to promote the long-term public interest

derived from the use of the spectrum by providing for the

management of the spectrum in a manner that:

(a) facilitates the efficient planning, allocation and use of the

spectrum; and

(b) facilitates the use of the spectrum for:

(i) commercial purposes; and

(ii) defence purposes, national security purposes and other

non-commercial purposes (including public safety and

community purposes); and

Commonwealth Government.

Policy statements and work program

Schedule 2

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Schedule 2--Policy statements and work

program

Part 1--Amendment of the Radiocommunications

Act 1992

Radiocommunications Act 1992

1 Section 5

Insert:

Ministerial policy statement

has the meaning given by

section 28B.

spectrum management functions

, in relation to the ACMA, has

the same meaning as in the

Australian Communications and Media

Authority Act 2005

spectrum management powers

, in relation to the ACMA, means

the powers conferred on the ACMA by or under:

(a) this Act; or

(b) the

Radiocommunications (Receiver Licence Tax) Act 1983

;

Radiocommunications (Spectrum Licence Tax) Act 1997

;

(d) the

Radiocommunications Taxes Collection Act 1983

; or

(e) the

Radiocommunications (Transmitter Licence Tax) Act

1983

; or

(f) Part 14AA of the

Broadcasting Services Act 1992

; or

(g) section 12 of the

Australian Communications and Media

Authority Act 2005

, to the extent that the powers relate to the

performance of the ACMA's spectrum management

functions.

2 At the end of Chapter 1

Add:

Schedule 2

Policy statements and work program

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Part 1.5--Ministerial policy statements

28A Simplified outline of this Part

•

In performing its spectrum management functions, and

exercising its spectrum management powers, the ACMA must

have regard to any relevant Ministerial policy statements.

28B Ministerial policy statements

(1) The Minister may, by notifiable instrument, specify a policy of the

Commonwealth Government that is to apply in relation to:

(a) the performance of any of the ACMA's spectrum

management functions; or

(b) the exercise of any of the ACMA's spectrum management

powers.

(2) An instrument under subsection (1) is to be known as a

Ministerial

policy statement

28C The ACMA must have regard to Ministerial policy statements

(1) In performing its spectrum management functions, and exercising

its spectrum management powers, the ACMA must have regard to

any relevant Ministerial policy statements.

(2) A contravention of subsection (1) does not affect the validity of:

(a) an instrument made by the ACMA; or

(b) anything else done by the ACMA;

in the performance of its functions or the exercise of its powers.

Policy statements and work program

Schedule 2

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Part 1.6--The ACMA's work program

28D Simplified outline of this Part

•

At least once each financial year, the ACMA must determine a

work program in relation to its spectrum management

functions and its spectrum management powers.

•

Before determining a work program, the ACMA must:

(a)

consult the Minister; and

(b)

undertake any other consultation that is appropriate and

reasonably practicable.

28E The ACMA's work program

(1) At least once each financial year, the ACMA must determine a

work program in relation to its spectrum management functions

and its spectrum management powers.

(2) A work program must be for a period of not less than 5 financial

years.

(3) If the ACMA has a work program (the

original work program

the ACMA may determine a work program (the

new work

program

) that is expressed to replace the original work program. If

the ACMA does so, the original work program is taken to be

revoked when the new work program comes into force.

(4) The ACMA must publish a work program on the ACMA's

website.

(5) A work program is not a legislative instrument.

28F Consultation

(1) Before determining a work program, the ACMA must:

(a) consult the Minister; and

(b) undertake any other consultation that is:

Schedule 2

Policy statements and work program

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(i) considered by the ACMA to be appropriate to

undertake; and

(ii) reasonably practicable to undertake.

(2) A contravention of subsection (1) does not affect the validity of the

work program.

Policy statements and work program

Schedule 2

Other amendments

Part 2

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Part 2--Other amendments

Australian Communications and Media Authority Act 2005

3 At the end of section 57

Add:

; and (g) a summary outline of the operation of subsection 28C(1) of

the

Radiocommunications Act 1992

during the period; and

(h) if a work program was applicable to the period under

section 28E of the

Radiocommunications Act 1992

--a report

on the extent to which the ACMA's activities during the

period gave effect to the work program.

Schedule 2

Policy statements and work program

Part 3

Application provisions

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Part 3--Application provisions

4 Application

--the ACMA's work program

Section 28E of the

Radiocommunications Act 1992

(as amended by this

Schedule) does not apply in relation to the financial year in which this

item commences.

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Schedule 3--Licences etc.

Part 1--Amendment of the Radiocommunications

Act 1992

Radiocommunications Act 1992

1 Subparagraph 4(a)(ii)

Omit "and conversion plans".

2 Section 5 (definition of

conversion plan

)

Repeal the definition.

3 Section 5

Insert:

direct allocation

has the meaning given by section 60A.

public interest statement

(a) for a spectrum licence--has the meaning given by

section 65A; or

(b) for an apparatus licence--has the meaning given by

section 103A.

renewal application period

(a) for a spectrum licence--has the meaning given by

section 65A; or

(b) for an apparatus licence--has the meaning given by

section 103A.

renewal application period statement

(a) for a spectrum licence--has the meaning given by

section 65A; or

(b) for an apparatus licence--has the meaning given by

section 103A.

renewal decision-making period

, for a spectrum licence, has the

meaning given by section 65A.

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

renewal decision-making period statement

, for a spectrum licence,

has the meaning given by section 65A.

renewal statement

(a) for a spectrum licence--has the meaning given by

section 65A; or

(b) for an apparatus licence--has the meaning given by

section 103A.

3A After subsection 27(2)

Insert:

(2A) A determination under subsection (2) may confer a power to make

a decision of an administrative character on a person or the

ACMA.

4 Paragraph 29(3)(a)

Repeal the paragraph.

4A After subsection 30(2)

Insert:

(2A) A spectrum plan may confer a power to make a decision of an

administrative character on the ACMA.

5 Part 2.2 (heading)

Omit "

Conversion plans and marketing

", substitute "

Marketing

5A After subsection 32(5)

Insert:

(5A) A frequency band plan may confer a power to make a decision of

an administrative character on the ACMA.

6 Section 36

Repeal the section.

7 Section 37

Omit "a conversion plan or".

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

8 Section 37

Omit "conversion plan or" (last occurring).

9 Section 38

Repeal the section.

10 Subsections 39(1) and (2)

Repeal the subsections, substitute:

(1) The ACMA may, by legislative instrument, prepare a marketing

plan for issuing spectrum licences that authorise the operation of

radiocommunications devices:

(a) at the frequencies specified in the plan; and

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

(2) If an apparatus licence authorises the operation of

radiocommunications devices:

(a) at one or more frequencies; and

(b) within one or more areas;

the ACMA must not make a marketing plan that applies to the

issue of spectrum licences that authorise the operation of

radiocommunications devices:

(d) within those areas;

unless the marketing plan provides that one or more spectrum

licences are to be allocated by direct allocation to the holder of the

apparatus licence.

11 Subsection 39(5)

Repeal the subsection, substitute:

(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:

(a) by auction; or

(b) by tender; or

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(d) by direct allocation; or

(e) by a combination of any or all of the following:

(i) auction;

(ii) tender;

(iii) allocation for a pre-determined price or a negotiated

price;

(iv) direct allocation.

12 At the end of section 39

Add:

(7) A marketing plan must not relate wholly or partly to a part of the

spectrum referred to the ACMA under subsection 31(1) or (1A),

unless the part, or each of the parts, of the spectrum to which the

plan relates is covered by a determination under subsection 31(2).

13 Subsection 39A(1)

Repeal the subsection, substitute:

(1) This section applies if a spectrum re-allocation declaration states

that a part or parts of the spectrum should be re-allocated:

(a) by issuing spectrum licences; or

(b) by a combination of:

(i) issuing spectrum licences; and

(ii) issuing apparatus licences.

14 Subsection 39A(7)

Repeal the subsection, substitute:

(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:

(a) by auction; or

(b) by tender; or

(d) by direct allocation; or

(e) by a combination of any or all of the following:

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(i) auction;

(ii) tender;

(iii) allocation for a pre-determined price or a negotiated

price;

(iv) direct allocation.

15 Section 41 (heading)

After "

preparing

", insert "

marketing

16 Subsection 41(1)

Omit "a conversion plan or".

17 Subsection 41(2)

Omit "38,".

18 Section 42 (heading)

Before "

plans

", insert "

marketing

19 Subsections 42(1) and (2)

Omit "a conversion plan or".

20 Section 44

Omit "a conversion plan or".

20A After subsection 44A(4)

Insert:

(4A) A digital radio channel plan may confer a power to make a

decision of an administrative character on the ACMA.

20B Subsections 48(1) and (2)

Repeal the subsections, substitute:

(1) For the purposes of section 47, if:

(a) at a particular time, a person has a radiocommunications

device in the person's possession, otherwise than for the

purpose of supplying the radiocommunications device to

another person; and

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(b) the radiocommunications device can be operated;

it must be presumed that the person has the radiocommunications

device in the person's possession for the purpose of operating the

radiocommunications device, unless the person adduces or points

to evidence that suggests a reasonable possibility that, at that time,

the person did not have the radiocommunications device in the

person's possession for the purpose of operating the

radiocommunications device.

(2) For the purposes of subsection (1), it is immaterial whether the

radiocommunications device can be operated:

(a) immediately; or

(b) after taking one or more steps (for example, the connection of

the radiocommunications device to a power supply).

21 Paragraph 51(2)(a)

Repeal the paragraph.

22 Subsection 51(5)

Repeal the subsection, substitute:

(5) Division 3A is about renewing spectrum licences.

(5A) Division 4 is about issuing further spectrum licences (otherwise

than by way of renewal).

23 Subdivision A of Division 1 of Part 3.2

Repeal the Subdivision.

24 At the end of subsection 60(1)

Add:

; or (d) by direct allocation; or

(e) by a combination of any or all of the following:

(i) auction;

(ii) tender;

(iii) allocation for a pre-determined price or a negotiated

price;

(iv) direct allocation.

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

25 Subsection 60(2)

Omit "procedures for", substitute "procedures, so far as they deal with".

26 After paragraph 60(2)(c)

Insert:

(ca) eligibility requirements (if any) for participation in auctions;

(cb) credits (if any) for prospective bidders;

27 Subsection 60(3)

Omit "procedures for", substitute "procedures, so far as they deal with".

28 After paragraph 60(3)(c)

Insert:

(ca) eligibility requirements (if any) for submission of a tender;

(cb) credits (if any) for prospective tenderers;

29 Subsection 60(4)

Omit "procedures for", substitute "procedures, so far as they deal with".

30 After paragraph 60(4)(b)

Insert:

(ba) eligibility requirements (if any) for prospective licensees;

(bb) credits (if any) for prospective licensees;

31 Paragraphs 60(5)(a) and (b)

Repeal the paragraphs, substitute:

(a) impose limits on the aggregate of the parts of the spectrum

that:

(i) under transmitter licences; and

(ii) under existing spectrum licences; and

(iii) as a result of the allocation of spectrum licences under

this Subdivision;

may be used by:

(iv) any one person; or

(v) a specified person; or

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(b) impose limits on the aggregate of the parts of the spectrum

that:

(i) under transmitter licences; and

(ii) under existing spectrum licences; and

(iii) 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.

32 After subsection 60(7)

Insert:

(7A) Procedures determined under subsection (1), so far as they relate to

direct allocation of spectrum licences, may provide for the ACMA

to have regard to a frequency assignment certificate issued by a

person who holds an accreditation of a kind specified in the

legislative rules, stating that the operation of a device under such a

licence:

(a) on a specified frequency or frequencies, or on a specified

frequency channel; and

(b) at a specified constancy; 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.

33 Subsection 60(8)

Omit "(6A) and (7)", substitute "(6A), (7) and (7A)".

34 Subsection 60(9)

Repeal the subsection.

35 After subsection 60(13)

Insert:

(13A) Before determining procedures under subsection (1), the ACMA

must consult the ACCC about whether the procedures should

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

impose limits as mentioned in subsection (5) and, if so, the nature

of those limits.

36 After subsection 60(14)

Insert:

(14A) Procedures determined under subsection (1) may confer a power to

make a decision of an administrative character on a person or the

ACMA.

37 At the end of section 60

Add:

(16) A determination under subsection (1) is a legislative instrument.

38 After section 60

Insert:

60A Direct allocation of spectrum licences

For the purposes of this Act,

direct allocation

of a spectrum

licence means the allocation of the licence to:

(a) a person specified in procedures determined under

section 60; or

(b) a person ascertained in accordance with procedures

determined under section 60.

60B Restriction on allocation of spectrum licences

If a spectrum licence authorises the operation of

radiocommunications devices:

(a) at one or more frequencies; and

(b) within one or more areas;

the ACMA must not allocate another spectrum licence if the other

spectrum licence authorises the operation of radiocommunications

devices:

(d) within those areas.

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

40 After section 65

Insert:

65A Renewal statements etc.

Renewal statement

(1) A spectrum licence issued after the commencement of this section

must include:

(a) a statement to the effect that the licence cannot be renewed;

(b) a statement to the effect that the licence may be renewed at

the discretion of the ACMA; or

the discretion of the ACMA so long as specified

circumstances exist.

Note:

For transitional exceptions, see subsection (21).

(2) A statement mentioned in paragraph (1)(a), (b) or (c) is to be

known as a

renewal statement

(3) Circumstances specified under paragraph (1)(c) may be an act or

omission by the ACMA.

(4) Subsection (3) does not limit paragraph (1)(c).

(5) The ACMA may, by legislative instrument, determine that each

spectrum licence included in a specified class of spectrum licences

is taken to include one of the following statements:

(a) a statement to the effect that the licence cannot be renewed;

(b) a statement to the effect that the licence may be renewed at

the discretion of the ACMA;

the discretion of the ACMA so long as specified

circumstances exist.

Note:

For transitional exceptions, see subsections (21) and (22).

(6) A statement mentioned in paragraph (5)(a), (b) or (c) is to be

known as a

renewal statement

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(7) Circumstances specified under paragraph (5)(c) may be an act or

omission by the ACMA.

(8) Subsection (7) does not limit paragraph (5)(c).

(9) A determination under subsection (5) does not apply to a spectrum

licence if a renewal statement is included in the licence under

subsection (1).

Renewal application period

(10) If a spectrum licence includes:

(a) a statement to the effect that the licence may be renewed at

the discretion of the ACMA; or

(b) a statement to the effect that the licence may be renewed at

the discretion of the ACMA so long as specified

circumstances exist;

the licence must also include a statement to the effect that a

specified period is the

renewal application period

for the licence.

(11) A statement mentioned in subsection (10) is to be known as a

renewal application period statement

(12) The ACMA may, by legislative instrument, determine that each

spectrum licence included in a specified class of spectrum licences

is taken to include a statement to the effect that a period

ascertained in accordance with the determination is the

renewal

application period

for the licence.

(13) A renewal application period for a spectrum licence must:

(a) begin at a time when the licence is in force; and

(b) end before the licence is due to expire.

(14) A determination under subsection (12) does not apply to a

spectrum licence if a renewal application period statement is

included in the licence under subsection (10).

Renewal decision-making period

(15) A spectrum licence may include a statement to the effect that a

specified period is the

renewal decision-making period

for the

licence.

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(16) A statement mentioned in subsection (15) is to be known as a

renewal decision-making period statement

Public interest statement

(17) If a spectrum licence includes:

(a) a statement to the effect that the licence may be renewed at

the discretion of the ACMA; or

(b) a statement to the effect that the licence may be renewed at

the discretion of the ACMA so long as specified

circumstances exist;

the licence may also include a statement to the effect that the

ACMA will not renew the licence unless the ACMA is satisfied

that it is in the public interest to do so.

(18) A statement mentioned in subsection (17) is to be known as a

public interest statement

(19) The ACMA may, by legislative instrument, determine that each

spectrum licence included in a specified class of spectrum licences

is taken to include a statement to the effect that the ACMA will not

renew the licence unless the ACMA is satisfied that it is in the

public interest to do so.

Note:

For transitional exceptions, see subsections (21) and (22).

(20) A statement mentioned in subsection (19) is to be known as a

public interest statement

Transitional--exceptions

(21) Subsections (1), (5) and (19) do not apply to a spectrum licence if:

(a) both:

(i) a marketing plan was applicable to the issue of the

licence; and

(ii) the marketing plan was prepared before the

commencement of this section; or

(b) the licence was issued as the result of an offer under repealed

section 56.

(22) Subsections (5) and (19) do not apply to a spectrum licence if the

licence was issued under repealed section 82.

Licences etc.

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Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

40A Paragraph 68A(2)(b)

Omit "Parts VII and IX", substitute "the remaining provisions of that

Act".

40B Paragraph 71A(2)(b)

Omit "Parts VII and IX", substitute "the remaining provisions of that

Act".

41 Subsection 71A(3)

Omit "re-issue of a spectrum licence under section 82", substitute "issue

of a spectrum licence under section 77C".

42 At the end of section 72

Add:

(3) Subject to subsections (4), (5) and (6), the ACMA may, with the

written agreement of the licensee of a spectrum licence, vary the

licence by:

(a) varying the renewal statement included in the licence; or

(b) omitting the renewal statement included in the licence and

substituting another renewal statement; or

the licence; or

(d) omitting the public interest statement included in the licence;

(e) omitting the renewal decision-making period statement

included in the licence; or

(f) varying the renewal decision-making period statement

included in the licence.

(4) If the renewal statement is varied, the statement as varied must

comply with the requirements of section 65A.

(5) If another renewal statement is substituted, the substituted renewal

statement must comply with the requirements of section 65A.

(6) If the renewal application period statement is varied, the statement

as varied must comply with the requirements of section 65A.

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

43 After subsection 73(2)

Insert:

(3) Subject to subsections (4), (5) and (6), if a spectrum licence

includes a renewal statement to the effect that the licence may be

renewed at the discretion of the ACMA so long as specified

circumstances exist, the ACMA may, by written notice given to the

licensee of the licence, vary the licence by:

(a) varying the circumstances specified in the renewal statement

included in the licence; or

(b) omitting the renewal statement included in the licence and

substituting another renewal statement to the effect that the

licence may be renewed at the discretion of the ACMA so

long as specified circumstances exist.

(4) The ACMA must not vary the licence under subsection (3) unless

the ACMA is satisfied that exceptional circumstances exist that

warrant the variation of the licence.

(5) If the renewal statement is varied, the statement as varied must

comply with the requirements of section 65A.

(6) If another renewal statement is substituted, the substituted renewal

statement must comply with the requirements of section 65A.

44 After Division 3 of Part 3.2

Insert:

Division 3A--Renewal of spectrum licences

77A Applications for renewal of spectrum licences

(1) A licensee of a spectrum licence may apply to the ACMA for the

licence to be renewed.

(2) If there is a renewal application period for the licence, the

application must be made within the renewal application period.

(3) If there is no renewal application period for the licence, the

application must be made within the 2-year period ending when the

licence is due to expire.

Licences etc.

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Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(4) The application must:

(a) be made in a manner approved, in writing, by the ACMA;

and

(b) be in a form approved, in writing, by the ACMA; and

in an instrument under subsection (6); and

(d) be accompanied by such documents (if any) as are specified

in an instrument under subsection (7).

(5) The ACMA may approve different forms for different applications.

(6) The ACMA may, by legislative instrument, specify information for

the purposes of paragraph (4)(c).

(7) The ACMA may, by legislative instrument, specify documents for

the purposes of paragraph (4)(d).

(8) An instrument under paragraph (4)(a) is a notifiable instrument.

(9) An approved form of application may provide for verification by

statutory declaration of statements in applications.

Deemed applications

(10) If:

(a) the ACMA gives a person a notice that is expressed to be a

licence renewal notice; and

(b) the notice relates to one or more spectrum licences held by

the person; and

(i) pays to the ACMA (on behalf of the Commonwealth)

the amount specified in the notice as the amount due;

and

(ii) does so on or before the day specified in the notice as

the payment due date;

then:

(d) if the notice relates to a single spectrum licence--the person

is taken to have made an application under subsection (1) for

the licence to be renewed; and

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(e) if the notice relates to 2 or more spectrum licences--the

person is taken to have made separate applications under

subsection (1) for each of those licences to be renewed; and

(f) subsection (4) does not apply to that application or those

applications, as the case requires.

77B Further information

(1) If an application is made for the renewal of a spectrum licence, the

ACMA may, by written notice given to the applicant, require the

applicant to give the ACMA, within the period specified in the

notice, further information in connection with the application.

(2) If the applicant breaches the requirement, the ACMA may, by

written notice given to the applicant:

(a) refuse to consider the application; or

(b) refuse to take any action, or any further action, in relation to

the application.

77C Renewal of spectrum licences

(1) When an application is made for the renewal of a spectrum licence,

the ACMA may, without following the procedures determined

under section 60, renew the licence by issuing to the applicant a

new spectrum licence.

(2) Subsection (1) does not imply that the ACMA must renew the

licence without the applicant:

(a) paying to the ACMA the spectrum access charge for issuing

the new spectrum licence; or

(b) reaching an agreement with the ACMA for payment of that

spectrum access charge.

(3) The ACMA must not renew the licence if the licence included a

renewal statement to the effect that the licence cannot be renewed.

(4) If the licence included a renewal statement to the effect that the

licence may be renewed at the discretion of the ACMA so long as

specified circumstances exist, the ACMA must not renew the

licence unless the ACMA is satisfied that the specified

circumstances exist.

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(5) The ACMA must not renew the licence by issuing a new spectrum

licence that specifies a period for the purposes of subsection 65(2)

that is 10 years or longer unless the ACMA is satisfied that it is in

the public interest to do so.

(6) If the licence included a public interest statement, the ACMA must

not renew the licence unless the ACMA is satisfied that it is in the

public interest to do so.

(7) In deciding whether to renew the 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 new spectrum licence.

(8) In deciding whether to renew the licence, the ACMA may have

regard to the following matters:

(a) whether the applicant has an outstanding liability to pay an

amount of:

(i) apparatus licence tax; or

(ii) spectrum licence tax; or

(iii) spectrum access charge; or

(iv) interim tax;

(b) whether the applicant has contravened a condition of the

licence;

(i) a person authorised by the applicant under section 68 in

relation to the licence has contravened a condition of the

licence;

(ii) the applicant was aware, or ought reasonably to have

been aware, of the contravention;

(iii) the applicant failed to take reasonable steps to prevent

the contravention;

(d) whether the applicant held another licence that was cancelled

during the previous 2 years (otherwise than under section 87,

128B, 153H or 307).

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(9) The new spectrum licence comes into force, or is taken to have

come into force, immediately after the expiration of the licence that

it replaces.

(10) The conditions of the new spectrum licence need not be the same

as those of the licence that it replaces.

77D Notice of refusal to renew spectrum licence etc.

(1) If the ACMA:

(a) refuses to renew a spectrum licence; or

(b) renews a spectrum licence but not on the same conditions;

the ACMA must give the licensee a written notice stating that fact.

Note:

Refusals to renew spectrum licences, and changes to licence

conditions on renewal, are reviewable under Part 5.6.

(2) The notice under subsection (1) must state 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.

(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),

it must give the person a statement of reasons within 28 days of

receipt of the request.

77E Application of other provisions

Subdivisions C and D of Division 1 apply to a spectrum licence

issued under this Division in the same way that those Subdivisions

apply to spectrum licences issued under Division 1.

45 Division 4 of Part 3.2 (heading)

Repeal the heading, substitute:

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Division 4--Issuing further spectrum licences (otherwise

than by way of renewal)

46 Section 78 (heading)

Repeal the heading, substitute:

78 Notice of spectrum licences that are about to expire

47 Section 79 (heading)

Repeal the heading, substitute:

79 Preparation of draft further spectrum licences

48 Section 80

Before "The", insert "(1)".

49 At the end of section 80

Add:

(2) To avoid doubt, subsection (1) of this section does not prevent or

limit the variation, in accordance with subsection 33(3) of the

Acts

Interpretation Act 1901

, of procedures determined under section 60

of this Act.

50 Section 81 (heading)

Repeal the heading, substitute:

81 Issue of further spectrum licences

51 Section 82

Repeal the section.

51A At the end of section 88

Add:

(3) The rules may confer a power to make a decision of an

administrative character on the ACMA.

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

52 Subsection 96(2)

Omit "types", substitute "kinds".

53 Division 1 of Part 3.3 (heading)

Omit "

Types

", substitute "

Kinds

54 Subsections 97(2) and (3)

Repeal the subsections, substitute:

(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:

(d) radiocommunications transmitters of a specified kind; or

(e) if neither paragraph (c) nor (d) applies--

radiocommunications transmitters of any 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:

(d) radiocommunications receivers of a specified kind; or

(e) if neither paragraph (c) nor (d) applies--

radiocommunications receivers of any kind.

55 Subsection 98(2)

Repeal the subsection, substitute:

(2) Subsection (1) does not prevent the ACMA from issuing an

apparatus licence that is not a transmitter licence or receiver

licence of a type so determined.

56 Subsection 99(1)

Omit "in writing".

Licences etc.

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Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

57 Subsection 99(1)

Omit "of the type specified in the application".

58 After subsection 99(1)

Insert:

(1A) The application must be made in a manner approved, in writing, by

the ACMA.

59 Subsection 99(2)

After "approved", insert ", in writing,".

60 Subsection 99(3)

Repeal the subsection, substitute:

(3) The ACMA may approve different forms for different applications.

61 At the end of section 99

Add:

(4) An instrument under subsection (1A) is a notifiable instrument.

62 Subsection 100(1)

Omit "of the type applied for".

63 Before subsection 100(5)

Insert:

(4C) In deciding whether to issue an apparatus licence, the ACMA may

also have regard to the aggregate of the parts of the spectrum that,

under transmitter licences or spectrum licences, may be used by the

applicant.

64 After section 102F

Insert:

102G Limits on use of the spectrum

(1) The ACMA may, by legislative instrument:

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(a) impose limits on the aggregate of the parts of the spectrum

that:

(i) under spectrum licences; and

(ii) under existing transmitter licences; and

(iii) as a result of the allocation or issue of transmitter

licences;

may be used by:

(iv) any one person; or

(v) a specified person; or

(b) impose limits on the aggregate of the parts of the spectrum

that:

(i) under spectrum licences; and

(ii) under existing transmitter licences; and

(iii) as a result of the allocation or issue of transmitter

licences;

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.

(2) A limit imposed as mentioned in subsection (1) 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;

For example, a limit might specify an aggregate limit of 15 MHz

per person in the band between 1800 MHz and 1900 MHz

(inclusive) for a particular area. This subsection does not, by

implication, limit subsection (1).

(3) An instrument that imposes limits as mentioned in subsection (1)

may impose limits of nil in relation to specified persons or to the

members of specified groups of persons.

(4) The Minister may, by notifiable instrument, give written directions

to the ACMA in relation to the exercise of the power conferred by

subsection (1).

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(5) The ACMA must exercise its power under subsection (1) in a

manner consistent with any directions given by the Minister under

subsection (4).

(6) Before making an instrument under subsection (1), the ACMA

must consult the ACCC about whether the instrument should

impose limits and, if so, the nature of the limits.

(7) This section does not apply to:

(a) an apparatus licence issued under section 101A or 102; or

(b) a digital radio multiplex transmitter licence.

65 After section 103

Insert:

103A Renewal statements etc.

Renewal statement

(1) An apparatus licence issued after the commencement of this

section may include:

(a) a statement to the effect that the licence cannot be renewed;

(b) a statement to the effect that the licence may be renewed at

the discretion of the ACMA so long as specified

circumstances exist.

(2) A statement mentioned in paragraph (1)(a) or (b) is to be known as

renewal statement

(3) Circumstances specified under paragraph (1)(b) may be an act or

omission by the ACMA.

(4) Subsection (3) does not limit paragraph (1)(b).

(5) The ACMA may, by legislative instrument, determine that each

apparatus licence included in a specified class of apparatus licences

is taken to include one of the following statements:

(a) a statement to the effect that the licence cannot be renewed;

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(b) a statement to the effect that the licence may be renewed at

the discretion of the ACMA so long as specified

circumstances exist.

(6) A statement mentioned in paragraph (5)(a) or (b) is to be known as

renewal statement

(7) Circumstances specified under paragraph (5)(b) may be an act or

omission by the ACMA.

(8) Subsection (7) does not limit paragraph (5)(b).

(9) A determination under subsection (5) does not apply to an

apparatus licence if a renewal statement is included in the licence

under subsection (1).

Renewal application period

(10) If an apparatus licence includes a statement to the effect that the

licence may be renewed at the discretion of the ACMA so long as

specified circumstances exist, the licence must also include a

statement to the effect that a specified period is the

renewal

application period

for the licence.

(11) A statement mentioned in subsection (10) is to be known as a

renewal application period statement

(12) The ACMA may, by legislative instrument, determine that each

apparatus licence included in a specified class of apparatus licences

is taken to include a statement to the effect that a period

ascertained in accordance with the determination is the

renewal

application period

for the licence.

(13) A renewal application period for an apparatus licence must:

(a) begin at a time when the licence is in force; and

(b) end not later than 60 days after the licence is due to expire.

(14) A determination under subsection (12) does not apply to an

apparatus licence if a renewal application period statement is

included in the licence under subsection (10).

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Public interest statement

(15) If an apparatus licence includes a statement to the effect that the

licence may be renewed at the discretion of the ACMA so long as

specified circumstances exist, the licence may also include a

statement to the effect that the ACMA will not renew the licence

unless the ACMA is satisfied that it is in the public interest to do

so.

(16) A statement mentioned in subsection (15) is to be known as a

public interest statement

(17) The ACMA may, by legislative instrument, determine that each

apparatus licence included in a specified class of apparatus licences

is taken to include a statement to the effect that the ACMA will not

renew the licence unless the ACMA is satisfied that it is in the

public interest to do so.

(18) A statement mentioned in subsection (17) is to be known as a

public interest statement

Exceptions

(19) This section does not apply to:

(a) a transmitter licence issued under section 101A or 102; or

(b) a digital radio multiplex transmitter licence.

(20) Subsections (5) and (17) do not apply to a licence issued before the

commencement of this section.

103B Variation of renewal statements etc. with agreement

(1) Subject to subsections (2), (3) and (4), the ACMA may, with the

written agreement of the licensee of an apparatus licence, vary the

licence by:

(a) varying the renewal statement included in the licence; or

(b) omitting the renewal statement included in the licence and

substituting another renewal statement; or

(d) including a renewal statement in the licence; or

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(e) varying the renewal application period statement included in

the licence; or

(f) including a renewal application period statement in the

licence; or

(g) omitting the public interest statement included in the licence.

(2) If the renewal statement is varied, the statement as varied must

comply with the requirements of section 103A.

(3) If another renewal statement is substituted, the substituted renewal

statement must comply with the requirements of section 103A.

(4) If a renewal statement is included in the licence, the statement must

comply with the requirements of section 103A.

(5) If the renewal application period statement is varied, the statement

as varied must comply with the requirements of section 103A.

(6) If a renewal application period statement is included in the licence,

the statement must comply with the requirements of section 103A.

103C Variation of renewal statements etc. without agreement

(1) Subject to subsections (2), (3) and (4), the ACMA may, by written

notice given to the licensee of an apparatus licence, vary the

licence by:

(a) varying the renewal statement included in the licence; or

(b) omitting the renewal statement included in the licence and

substituting another renewal statement; or

(d) including a renewal statement in the licence; or

(e) varying the renewal application period statement included in

the licence; or

(f) including a renewal application period statement in the

licence; or

(g) omitting the public interest statement included in the licence.

(2) If the renewal statement is varied, the statement as varied must

comply with the requirements of section 103A.

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(3) If another renewal statement is substituted, the substituted renewal

statement must comply with the requirements of section 103A.

(4) If a renewal statement is included in the licence, the statement must

comply with the requirements of section 103A.

(5) If the renewal application period statement is varied, the statement

as varied must comply with the requirements of section 103A.

(6) If a renewal application period statement is included in the licence,

the statement must comply with the requirements of section 103A.

66 Section 105

Repeal the section, substitute:

105 Restrictions on issuing apparatus licences

(1) Subject to subsection (3), if a spectrum licence authorises the

operation of radiocommunications devices:

(a) at one or more frequencies; and

(b) within one or more areas;

the ACMA must not issue an apparatus licence that authorises the

operation of radiocommunications devices:

(d) within those areas.

(2) Subject to subsection (3), if a marketing plan is in force in relation

to the issue of a spectrum licence that authorises the operation of

radiocommunications devices:

(a) at one or more frequencies; and

(b) within one or more areas;

the ACMA must not issue an apparatus licence that authorises the

operation of radiocommunications devices:

(d) within those areas.

(3) The ACMA may issue an apparatus licence mentioned in

subsection (1) or (2):

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(a) to a body or person covered by any of paragraphs 27(1)(b) to

(be) for the purpose of investigations or operations conducted

by the body or person; or

(b) if it is satisfied that the special circumstances of the particular

case justify the issuing of the licence.

105A Notice of apparatus licences that are about to expire

The ACMA may publish on its website a notice that:

(a) states where information may be obtained about:

(i) the apparatus licences that are included in a specified

class and that will expire during a specified period; and

(ii) the parts of the spectrum to which the licences relate;

and

(b) invites applications from persons who wish to have issued to

them apparatus licences relating to those parts of the

spectrum.

67 After paragraph 106(2)(b)

Insert:

(ba) may provide for eligibility requirements (if any) for

prospective licensees; and

(bb) may provide for credits (if any) for prospective licensees; and

68 Subsections 106(3) and (4)

Repeal the subsections, substitute:

(3) A system so determined may:

(a) impose limits on the aggregate of the parts of the spectrum

that:

(i) under spectrum licences; and

(ii) under existing transmitter licences; and

(iii) as a result of the allocation or issue of transmitter

licences;

may be used by:

(iv) any one person; or

(v) a specified person; or

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(b) impose limits on the aggregate of the parts of the spectrum

that:

(i) under spectrum licences; and

(ii) under existing transmitter licences; and

(iii) as a result of the allocation or issue of transmitter

licences;

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.

(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;

For example, a system might specify an aggregate limit of 15 MHz

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).

(4A) A system that imposes limits as mentioned in subsection (3) may

impose limits of nil in relation to specified persons or to the

members of specified groups of persons.

69 Subsection 106(8)

Repeal the subsection.

70 Subsection 106(11)

After "with", insert "any".

71 After subsection 106(11)

Insert:

(11A) Before determining a price-based allocation system under

subsection (1), the ACMA must consult the ACCC about whether

the system should impose limits as mentioned in subsection (3)

and, if so, the nature of those limits.

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

72 After subsection 106(12)

Insert:

(12A) A price-based allocation system determined under subsection (1)

may confer a power to make a decision of an administrative

character on a person or the ACMA.

73 At the end of section 106

Add:

(18) A determination under subsection (1) is a legislative instrument.

73A Paragraph 106A(2)(b)

Omit "Parts VII and IX", substitute "the remaining provisions of that

Act".

73B Paragraph 114A(2)(b)

Omit "Parts VII and IX", substitute "the remaining provisions of that

Act".

73C Section 115

Before "The ACMA", insert "(1)".

73D At the end of section 115

Add:

(2) A determination under subsection (1) may confer a power to make

a decision of an administrative character on the ACMA.

73E Section 119

Before "The ACMA", insert "(1)".

73F At the end of section 119

Add:

(2) A determination under subsection (1) may confer a power to make

a decision of an administrative character on a person.

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

74 Section 129

Repeal the section, substitute:

129 Applications for renewal of apparatus licences

(1) A licensee of an apparatus licence (other than a transmitter licence

issued under section 101A or 102 or a non-foundation digital radio

multiplex transmitter licence) may apply to the ACMA for the

licence to be renewed.

(2) If there is a renewal application period for the licence, the

application must be made within the renewal application period.

(3) If there is no renewal application period for the licence, the

application must be made within the period:

(a) beginning 6 months before the licence is due to expire; and

(b) ending 60 days after the licence expires.

(4) The application must:

(a) be made in a manner approved, in writing, by the ACMA;

and

(b) be in a form approved, in writing, by the ACMA; and

in an instrument under subsection (6); and

(d) be accompanied by such documents (if any) as are specified

in an instrument under subsection (7).

(5) The ACMA may approve different forms for different applications.

(6) The ACMA may, by legislative instrument, specify information for

the purposes of paragraph (4)(c).

(7) The ACMA may, by legislative instrument, specify documents for

the purposes of paragraph (4)(d).

(8) An instrument under paragraph (4)(a) is a notifiable instrument.

(9) An approved form of application may provide for verification by

statutory declaration of statements in applications.

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Deemed applications

(10) If:

(a) the ACMA gives a person a notice that is expressed to be a

licence renewal notice; and

(b) the notice relates to one or more apparatus licences held by

the person; and

(i) pays to the ACMA (on behalf of the Commonwealth)

the amount specified in the notice as the amount due;

and

(ii) does so on or before the day specified in the notice as

the payment due date;

then:

(d) if the notice relates to a single apparatus licence--the person

is taken to have made an application under subsection (1) for

the licence to be renewed; and

(e) if the notice relates to 2 or more apparatus licences--the

person is taken to have made separate applications under

subsection (1) for each of those licences to be renewed; and

(f) subsection (4) does not apply to that application or those

applications, as the case requires.

129A Further information

(1) If an application is made for the renewal of an apparatus licence,

the ACMA may, by written notice given to the applicant, require

the applicant to give the ACMA, within the period specified in the

notice, further information in connection with the application.

(2) If the applicant breaches the requirement, the ACMA may, by

written notice given to the applicant:

(a) refuse to consider the application; or

(b) refuse to take any action, or any further action, in relation to

the application.

75 Subsection 130(1)

After "made", insert "for the renewal of an apparatus licence".

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

76 After subsection 130(2B)

Insert:

(2C) The ACMA must not renew the licence if the licence included a

renewal statement to the effect that the licence cannot be renewed.

(2D) If the licence included a renewal statement to the effect that the

licence may be renewed at the discretion of the ACMA so long as

specified circumstances exist, the ACMA must not renew the

licence unless the ACMA is satisfied that the specified

circumstances exist.

(2E) The ACMA must not renew the licence by issuing a new apparatus

licence that specifies a period for the purposes of subsection 103(2)

that is 10 years or longer unless the ACMA is satisfied that it is in

the public interest to do so.

(2F) If the licence included a public interest statement, the ACMA must

not renew the licence unless the ACMA is satisfied that it is in the

public interest to do so.

77 Paragraph 130(3)(b)

Omit "subsection 100(5)", substitute "subsections 100(4C) and (5)".

78 After subsection 130(3)

Insert:

(3A) In deciding whether to renew the licence, the ACMA may have

regard to the following matters:

(a) whether the applicant has an outstanding liability to pay an

amount of:

(i) apparatus licence tax; or

(ii) spectrum licence tax; or

(iii) spectrum access charge; or

(iv) interim tax;

(b) whether the applicant has contravened a condition of the

licence;

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(i) a person authorised by the applicant under section 114

in relation to the licence has contravened a condition of

the licence;

(ii) the applicant was aware, or ought reasonably to have

been aware, of the contravention;

(iii) the applicant failed to take reasonable steps to prevent

the contravention;

(d) whether the applicant held another licence that was cancelled

during the previous 2 years (otherwise than under section 87,

128B, 153H or 307).

79 Subsection 131AA(3)

Repeal the subsection, substitute:

(3) The ACMA may approve different forms for different applications.

79A Section 131AC

Before "The ACMA", insert "(1)".

79B At the end of section 131AC

Add:

(2) A determination under subsection (1) may confer a power to make

a decision of an administrative character on the ACMA.

79C At the end of section 133

Add:

(3) A condition included in a class licence may confer a power to

make a decision of an administrative character on a person or the

ACMA.

80 Subsection 138(1)

Repeal the subsection, substitute:

(1) If a spectrum licence authorises the operation of

radiocommunications devices:

(a) at one or more frequencies; and

(b) within one or more areas;

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

the ACMA must not issue a class licence that authorises the

operation of radiocommunications devices:

(d) within those areas;

unless subsection (2) is satisfied.

(1A) If a marketing plan is in force in relation to the issue of a spectrum

licence that authorises the operation of radiocommunications

devices:

(a) at one or more frequencies; and

(b) within one or more areas;

the ACMA must not issue a class licence that authorises the

operation of radiocommunications devices:

(d) within those areas;

unless subsection (2) is satisfied.

81 Subsection 138(2)

After "a class licence", insert "to which subsection (1) or (1A) applies".

82 Subsection 153A(2)

Omit "Minister", substitute "ACMA".

83 At the end of subsection 153A(3)

Add:

; or (c) by a combination of:

(i) issuing spectrum licences under Subdivision B of

Division 1 of Part 3.2 (see section 153L); and

(ii) issuing apparatus licences under Division 2 of Part 3.3

(see section 153M).

84 Subsection 153B(1)

Omit "Minister", substitute "ACMA".

85 Subsection 153B(4)

Repeal the subsection, substitute:

(4) The re-allocation period must:

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(a) begin at a time specified in the declaration; and

(b) run for at least 12 months.

(4A) The re-allocation period must not begin before the commencement

of the declaration.

86 Subsection 153B(5)

Omit "That time must be at least 12 months before the end of the

re-allocation period.", substitute "That time must not be later than the

end of the re-allocation period.".

87 At the end of subsection 153B(6)

Add:

; or (c) by a combination of:

(i) issuing spectrum licences under Subdivision B of

Division 1 of Part 3.2 (see section 153L); and

(ii) issuing apparatus licences under Division 2 of Part 3.3

(see section 153M).

88 At the end of section 153B

Add:

(10) A spectrum re-allocation declaration is a legislative instrument.

89 Section 153C

Repeal the section.

90 Sections 153E, 153F and 153G

Repeal the sections.

91 Subsections 153J(1) and (2)

Omit "Minister", substitute "ACMA".

92 After subsection 153J(2)

Insert:

(2A) Subsection (2) does not prevent the ACMA from varying a

spectrum re-allocation declaration if the ACMA considers that

there are exceptional circumstances that warrant the variation.

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

93 Subsection 153J(4)

Repeal the subsection, substitute:

(4) This section does not, by implication, limit the ACMA's power to

vary a spectrum re-allocation declaration in accordance with

subsection 33(3) of the

Acts Interpretation Act 1901

94 Subsection 153K(5)

Omit "Minister's", substitute "ACMA's".

95 Subsection 153L(1)

Repeal the subsection, substitute:

(1) This section applies if a spectrum re-allocation declaration states

that a part or parts of the spectrum should be re-allocated:

(a) by issuing spectrum licences; or

(b) by a combination of:

(i) issuing spectrum licences; and

(ii) issuing apparatus licences.

96 Subsection 153L(2)

After "The", insert "spectrum".

97 Subsection 153M(1)

Repeal the subsection, substitute:

(1) This section applies if a spectrum re-allocation declaration states

that a part or parts of the spectrum should be re-allocated:

(a) by issuing apparatus licences; or

(b) by a combination of:

(i) issuing spectrum licences; and

(ii) issuing apparatus licences.

98 Subsection 153M(2)

After "The", insert "apparatus".

99 Subsection 153N(1)

Omit "Minister", substitute "ACMA".

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

100 Subsection 153P(3)

Repeal the subsection.

101 Paragraph 285(d)

Repeal the paragraph, substitute:

(d) refusal to renew a spectrum licence, or renewal of a spectrum

licence with different conditions, under section 77C;

102 Before paragraph 285(f)

Insert:

(ec) variation of an apparatus licence under section 103C;

103 Subsection 286(1)

After "this Act", insert "(other than section 77A)".

104 After paragraph 286(1)(a)

Insert:

(aa) in the case of an application under section 129 where the

ACMA has, within those 90 days, given the applicant a

notice under section 129A requiring the applicant to give the

ACMA further information in connection with the

application--within 90 days after receiving that further

information; or

105 Paragraph 286(1)(b)

Omit "if", substitute "in the case of an application not made under

section 129 where".

106 Subsection 286(2)

After "application", insert "mentioned in subsection (1)".

107 At the end of section 286

Add:

(3) If a renewal decision-making period statement is included in a

spectrum licence, the ACMA must make a decision under section

77C in response to an application for the renewal of the spectrum

licence:

Licences etc.

Schedule 3

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(a) before the end of the renewal decision-making period

specified in the statement; or

(b) if the ACMA has, within that period, given the applicant a

notice under section 77B requiring the applicant to give the

ACMA further information in connection with the

application--within that period, as extended by one day for

each day in the period:

(i) beginning when the notice was given; and

(ii) ending when that further information was received.

(4) The ACMA is taken, for the purposes of this Part, to have made a

decision to refuse the application mentioned in subsection (3) if the

ACMA has not informed the applicant of its decision before the

end of the period within which the ACMA was required, under that

subsection, to make the decision.

(5) If subsection (4) applies, the ACMA must:

(a) prepare a written statement explaining why it was unable to

make its decision before the end of the period within which

the ACMA was required, under subsection (3), to make the

decision; and

(b) give the statement to the applicant as soon as practicable after

the end of that period.

(6) If a renewal decision-making period statement is not included in a

spectrum licence, the ACMA must make a decision under section

77C in response to an application for the renewal of the spectrum

licence:

(a) within 6 months after receiving the application; or

(b) if the ACMA has, within that 6 months, given the applicant a

notice under section 77B requiring the applicant to give the

ACMA further information in connection with the

application--within 6 months after receiving that further

information.

(7) The ACMA is taken, for the purposes of this Part, to have made a

decision to refuse the application mentioned in subsection (6) if the

ACMA has not informed the applicant of its decision before the

end of the relevant period of 6 months.

(8) If subsection (7) applies, the ACMA must:

Schedule 3

Licences etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(a) prepare a written statement explaining why it was unable to

make its decision before the end of the relevant period of 6

months; and

(b) give the statement to the applicant as soon as practicable after

the end of the relevant period of 6 months.

108 Section 304

Repeal the section, substitute:

304 Applications in electronic form

(1) If a provision of this Act provides that an application must be made

in a manner approved, in writing, by the ACMA, a manner

approved by the ACMA may have the effect of requiring an

application to be in an electronic form (for example, requiring an

application to be made using an online system).

(2) Subsection (1) has effect despite anything in the

Electronic

Transactions Act 1999

304A Service of notices and instruments by electronic means

Paragraphs 9(1)(d) and (2)(d) of the

Electronic Transactions Act

1999

do not apply to a notice or instrument under:

(a) this Act; or

(b) a legislative instrument made under this Act; or

Act.

Note:

Paragraphs 9(1)(d) and (2)(d) of the

Electronic Transactions Act 1999

deal with the consent of the recipient of information to the information

being given by way of electronic communication.

Licences etc.

Schedule 3

Application and transitional provisions

Part 2

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Part 2--Application and transitional provisions

109 Transitional

--marketing plans

Scope

(1)

This item applies to a marketing plan if:

(a) the plan was in force immediately before the commencement

of this item; and

(b) the plan was prepared under:

(i) subsection 39(1) of the

Radiocommunications Act 1992

;

(ii) subsections 39(1) and 39A(2) of the

Radiocommunications Act 1992

Effect of plan etc.

(2)

The plan, so far as it was prepared under subsection 39(1) of the

Radiocommunications Act 1992

, has effect, after the commencement of

this item, as if:

(a) it had been prepared under subsection 39(1) of the

Radiocommunications Act 1992

(as amended by this

Schedule); and

(b) any requirement imposed by the

Radiocommunications Act

1992

or the

Legislation Act 2003

in relation to the

preparation of the plan (including a requirement about the

form of words) had been satisfied; and

subsection 36(1) of the

Radiocommunications Act 1992

were

a reference to the notice as in force immediately before the

commencement of this item.

(3)

Subsection 39(2) of the

Radiocommunications Act 1992

(as amended by

this Schedule) does not apply to the plan.

Schedule 3

Licences etc.

Part 2

Application and transitional provisions

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

109A Application

--section 48 of the

Radiocommunications

Act 1992

The amendments of section 48 of the

Radiocommunications Act 1992

made by this Schedule apply in relation to possession of a

radiocommunications device after the commencement of this item.

110 Transitional

--paragraphs 60(5)(a) and (b) of the

Radiocommunications Act 1992

Despite the repeal of paragraphs 60(5)(a) and (b) of the

Radiocommunications Act 1992

by this Schedule, those paragraphs

continue to apply, in relation to procedures determined under

subsection 60(1) of that Act before the commencement of this item, as

if that repeal had not happened.

111 Transitional

--spectrum licences issued under

Subdivision A of Division 1 of Part 3.2 of the

Radiocommunications Act 1992

If a spectrum licence was issued under Subdivision A of Division 1 of

Part 3.2 of the

Radiocommunications Act 1992

before the

commencement of this item, the repeal of that Subdivision by this

Schedule does not affect the continuity of the licence.

112 Transitional

--issuing spectrum licences under

Subdivision A of Division 1 of Part 3.2 of the

Radiocommunications Act 1992

Scope

(1)

This item applies if, before the commencement of this item:

(a) the ACMA gave the licensee of an apparatus licence an offer

to issue a spectrum licence to replace the apparatus licence;

and

(b) the offer was given under section 56 of the

Radiocommunications Act 1992

; and

Division 1 of Part 3.2 of the

Radiocommunications Act 1992

before the commencement of this item.

Licences etc.

Schedule 3

Application and transitional provisions

Part 2

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Issuing spectrum licences etc.

(2)

Despite the repeal of Subdivision A of Division 1 of Part 3.2 of the

Radiocommunications Act 1992

by this Schedule, that Subdivision

(other than subsection 59(1)) continues to apply, in relation to:

(a) any acceptance, or non-acceptance, of the offer by the

licensee; and

(b) the issue of the spectrum licence in response to any

acceptance of the offer by the licensee; and

consequence of any non-acceptance of the offer by the

licensee;

as if that repeal had not happened.

(3)

For the purposes of this item,

non-acceptance

of the offer by the

licensee includes failure by the licensee to accept the offer on or before

the day specified in the offer.

113 Transitional

--subsection 71A(3) of the

Radiocommunications Act 1992

Despite the amendment of subsection 71A(3) of the

Radiocommunications Act 1992

made by this Schedule, that subsection

continues to apply, in relation to the re-issue of a spectrum licence

under repealed section 82 of that Act, as if that amendment had not been

made.

114 Transitional

--spectrum licences re-issued under

section 82 of the

Radiocommunications Act 1992

If a spectrum licence was re-issued under section 82 of the

Radiocommunications Act 1992

before the commencement of this item,

the repeal of that section by this Schedule does not affect the continuity

of the licence.

115 Application

--section 99 of the

Radiocommunications Act

1992

The amendments of section 99 of the

Radiocommunications Act 1992

made by this Schedule apply in relation to an application made after the

commencement of this item.

Schedule 3

Licences etc.

Part 2

Application and transitional provisions

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

116 Transitional

--subsection 99(2) of the

Radiocommunications Act 1992

The amendment of subsection 99(2) of the

Radiocommunications Act

1992

made by this Schedule does not affect the continuity of a written

approval that was:

(a) in force immediately before the commencement of this item;

and

(b) given under that subsection.

117 Transitional

--subsections 106(3) and (4) of the

Radiocommunications Act 1992

Despite the repeal of subsections 106(3) and (4) of the

Radiocommunications Act 1992

by this Schedule, those subsections

continue to apply, in relation to a system determined under

subsection 106(1) of that Act before the commencement of this item, as

if that repeal had not happened.

118 Transitional

--section 129 of the

Radiocommunications

Act 1992

Despite the repeal of section 129 of the

Radiocommunications Act 1992

by this Schedule, that section continues to apply, in relation to an

application made before the commencement of this item, as if that

repeal had not happened.

119 Application

--section 131AA of the

Radiocommunications Act 1992

The amendment of section 131AA of the

Radiocommunications Act

1992

made by this Schedule applies in relation to an application made

after the commencement of this item.

120 Transitional

--spectrum re-allocation declarations

Scope

(1)

This item applies to a spectrum re-allocation declaration if:

(a) the declaration was in force immediately before the

commencement of this item; and

(b) the declaration was made under subsection 153B(1) of the

Radiocommunications Act 1992

Licences etc.

Schedule 3

Application and transitional provisions

Part 2

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Effect of declaration

(2)

The declaration has effect, after the commencement of this item, as if:

(a) it had been made by the ACMA under subsection 153B(1) of

the

Radiocommunications Act 1992

(as amended by this

Schedule); and

(b) any requirement imposed by the

Radiocommunications Act

1992

or the

Legislation Act 2003

in relation to the making of

the declaration (including a requirement about the form of

words) had been satisfied.

Schedule 4

Equipment etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Schedule 4--Equipment etc.

Part 1--Amendment of the Radiocommunications

Act 1992

Radiocommunications Act 1992

1 Subparagraph 4(d)(i)

Omit "standards", substitute "equipment rules".

2 Section 5 (definition of

apply

)

Repeal the definition.

3 Section 5

Insert:

designated radiocommunications receiver

has the meaning given

by section 7A.

4 Section 5 (definition of

device

)

Repeal the definition, substitute:

device

means an item of equipment.

5 Section 5 (definition of

EMC standard

)

Repeal the definition.

6 Section 5

Insert:

equipment

means:

(a) a radiocommunications transmitter; or

(b) a radiocommunications receiver; or

(d) anything, irrespective of its use or function or the purpose of

its design, that is capable of radio emission; or

Equipment etc.

Schedule 4

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(e) anything that has a use or function that is capable of being

interfered with by radio emission.

equipment rules

means rules made under section 156.

7 Section 5 (definition of

interference

)

Repeal the definition, substitute:

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 equipment; or

(b) in relation to the uses or functions of equipment--

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

equipment.

8 Section 5

Insert:

interim ban

has the meaning given by section 167.

9 Section 5 (definition of

label

)

Repeal the definition, substitute:

label

includes:

(a) a statement; and

(b) a QR code, or a similar thing, if the relevant link is to

information on a website.

10 Section 5

Repeal the following definitions:

(a) definition of

non-standard device

;

(b) definition of

non-standard transmitter

11 Section 5

Insert:

Schedule 4

Equipment etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

offer to supply

includes:

(a) make available for supply; and

(b) expose for supply; and

(d) advertise for supply.

operate

(a) when used in relation to:

(i) a radiocommunications transmitter; or

(ii) a radiocommunications receiver; or

(iii) a radiocommunications device; or

(iv) a transmitter that is a radiocommunications transmitter;

(v) equipment that is a radiocommunications transmitter; or

(vi) equipment that is a radiocommunications receiver;

means operate for the purposes of, or in connection with,

radiocommunications; or

(b) when used in relation to a transmitter that is not a

radiocommunications transmitter--means operate (within the

ordinary meaning of that expression); or

radiocommunications transmitter nor a radiocommunications

receiver--means operate (within the ordinary meaning of that

expression).

12 Section 5

Insert:

permanent ban

has the meaning given by section 172.

13 Section 5 (definition of

permit

)

Repeal the definition, substitute:

permit

means a permit issued by the ACMA under the equipment

rules.

14 Section 5

Insert:

Equipment etc.

Schedule 4

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

protected symbol

has the meaning given by section 166.

15 Section 5

Insert:

recall notice

means a notice issued under subsection 183(1), (2),

(3) or (4).

16 Section 5 (definition of

Register

)

Omit ", except in section 183,".

17 Section 5 (definition of

standard

)

Repeal the definition.

18 Subsection 6(2)

Omit "a radar device", substitute "radar equipment".

19 After section 7

Insert:

7A Designated radiocommunications receiver

For the purposes of this Act, if the operation of a

radiocommunications receiver is not authorised by a class licence,

the radiocommunications receiver is a

designated

radiocommunications receiver

20 Sections 9 and 9A

Repeal the sections, substitute:

9 Application of labels

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

Schedule 4

Equipment etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

box or other thing in or with which the first-mentioned thing

is, or is to be, supplied; or

(d) the label is woven in, impressed on, worked into or annexed

to a container, covering, package, case, box or other thing in

or with which the first-mentioned thing is, or is to be,

supplied; or

(e) the label is affixed to, or incorporated in, an instruction or

other document that accompanies the first-mentioned thing.

21 Paragraph 107(1)(d)

After "it", insert "under the equipment rules".

22 Paragraph 133(2)(e)

After "it", insert "under the equipment rules".

23 Subsection 154(2)

Repeal the subsection, substitute:

(2) Part 4.1 is about equipment rules, protected symbols, equipment

bans and equipment recall.

24 Part 4.1

Repeal the Part, substitute:

Part 4.1--Equipment

Division 1--Introduction

155 Simplified outline of this Part

•

The ACMA may make equipment rules.

•

The equipment rules may prescribe standards for equipment.

•

The equipment rules may impose obligations or prohibitions

in relation to equipment.

Equipment etc.

Schedule 4

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

•

An obligation or prohibition may relate to:

(a)

the operation of equipment; or

(b)

the supply of equipment; or

(c)

offers to supply equipment; or

(d)

the possession of equipment; or

(e)

the import of equipment.

•

A person must not use or apply a protected symbol unless the

use or application is authorised by or under:

(a)

this Act; or

(b)

the equipment rules.

•

A protected symbol is a symbol:

(a)

the design of which is determined by the ACMA; and

(b)

the purpose of which is to indicate compliance by

equipment with any standards that are prescribed by the

equipment rules and that are applicable to the

equipment.

•

The ACMA may impose interim bans, or permanent bans, on

equipment.

•

The ACMA may require a supplier to recall equipment.

•

If a supplier voluntarily recalls equipment, the supplier must

notify the ACMA of the recall.

Division 2--Equipment rules

156 Equipment rules

(1) The ACMA may, by legislative instrument, make rules (

equipment

rules

) relating to equipment.

(2) The ACMA may make 2 or more sets of equipment rules.

(3) The equipment rules must be directed towards achieving any or all

of the following objectives:

(a) ensuring the electromagnetic compatibility of equipment;

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(b) containing interference to radiocommunications;

equipment;

(d) establishing for the uses or functions of equipment an

adequate level of immunity from electromagnetic

disturbances caused by the use of other equipment;

(e) protecting the health or safety of individuals from any

adverse effect likely to be attributable to radio emissions

resulting from a reasonably foreseeable use (including a

misuse) of radiocommunications transmitters;

(f) ensuring that persons who operate equipment have access to

information about the equipment;

(g) ensuring that radiocommunications transmitters are not

supplied to persons intending to operate those transmitters

unless those persons are authorised by or under this Act to

operate those transmitters;

(h) ensuring that designated radiocommunications receivers are

not supplied to persons intending to operate those receivers

unless those persons are authorised by or under this Act to

operate those receivers;

(i) an objective specified in the legislative rules;

(j) an objective that is incidental or ancillary to any of the above

objectives.

(4) Before making equipment rules directed towards achieving the

objective mentioned in paragraph (3)(e), the ACMA must consult

ARPANSA (the Australian Radiation Protection and Nuclear

Safety Agency).

157 Constitutional limits

The equipment rules may only be made to the extent that they are

supported by one or more of the following provisions of the

Constitution:

(a) paragraph 51(i);

(b) paragraph 51(v);

(d) paragraph 51(vii);

(e) paragraph 51(viii);

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(f) paragraph 51(xiii);

(g) paragraph 51(xiv);

(h) paragraph 51(xv);

(i) paragraph 51(xx);

(j) paragraph 51(xxix);

(k) paragraph 51(xxxix);

(l) section 52;

(m) section 122.

158 Standards

(1) The equipment rules may prescribe standards for equipment.

(2) Standards may require equipment:

(a) to have particular design features; or

(b) to meet particular performance requirements.

(3) A standard may be of general application or may be limited as

provided in the equipment rules. This subsection does not limit

subsection 33(3A) of the

Acts Interpretation Act 1901

(4) This section does not, by implication, limit subsection 156(1).

(5) This section has effect subject to subsection 156(3).

159 Obligations, prohibitions and permits

Obligations and prohibitions

(1) The equipment rules may impose obligations or prohibitions in

relation to equipment.

(2) The equipment rules may impose obligations:

(a) to ensure that quality assurance programs in relation to

equipment are conducted; or

(b) to ensure that tests in relation to equipment are conducted; or

(d) to ensure that records are kept or retained; or

(e) to ensure that a thing specified in the legislative rules is done.

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(3) The equipment rules may impose obligations or prohibitions that

relate to:

(a) the operation of equipment; or

(b) the supply of equipment; or

(d) the possession of equipment; or

(e) the import of equipment.

(4) If the equipment rules impose an obligation on a person to cause a

thing to be done, the rules may require that the thing be done by

another specified person.

Note:

For specification by class, see subsection 13(3) of the

Legislation Act

2003

(5) If the equipment rules impose an obligation on a person to cause a

thing to be done, the equipment rules may require that the thing be

done by another person holding an accreditation of a specified

kind.

(6) If the equipment rules impose an obligation on a person to cause a

thing to be done, the equipment rules may require that the thing be

done by another person who:

(a) satisfies the conditions specified in the equipment rules; and

(b) is approved, in writing, by a person holding an accreditation

of a specified kind.

(7) If the equipment rules impose an obligation on a person to cause a

thing to be done, the equipment rules may require that the thing be

done by another person who is approved, in writing, by a person

holding an accreditation of a specified kind.

(8) The equipment rules may prohibit a person from:

(a) supplying; or

(b) offering to supply;

a specified kind of equipment unless the person satisfies one or

more specified conditions.

(9) The equipment rules may require that, if:

(a) the supply of equipment to a person; or

(b) an offer to supply equipment to a person;

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involves the person accessing the supplier's website, the supplier

must ensure that, before the equipment is supplied to the person,

the person's attention is drawn to material that:

(d) complies with specified requirements.

(10) The equipment rules may prohibit a person from applying a

specified kind of label to equipment unless the person does so in

specified circumstances.

(11) The equipment rules may prohibit a person who supplies, or offers

to supply, equipment from publishing a specified kind of material

about the equipment on the person's website unless the person does

so in specified circumstances.

(12) The equipment rules may prohibit a person from doing an act or

thing specified in the legislative rules.

Permits

(13) The equipment rules may prohibit the doing of an act or thing by a

person unless:

(a) the person holds a permit issued by the ACMA under the

equipment rules; and

(b) the permit authorises the person to do that act or thing.

(14) An act or thing is not authorised by a permit if it is not in

accordance with the conditions of the permit.

(15) The equipment rules may make provision for:

(a) the issue of permits by the ACMA; and

(b) the inclusion by the ACMA of conditions in a permit; and

Note 1:

Refusals to issue permits are reviewable under Part 5.6.

Note 2:

Decisions about permit conditions are reviewable under Part 5.6.

Note 3:

Cancellations of permits are reviewable under Part 5.6.

(16) The equipment rules may make provision for ACMA to vary a

permit by:

(a) including one or more further conditions; or

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(b) varying any conditions of the permit; or

Note:

Decisions about permit conditions are reviewable under Part 5.6.

Other matters

(17) Subsections (2) to (16) do not limit subsection (1).

(18) Subsections (2) to (16) do not limit each other.

(19) This section does not, by implication, limit subsection 156(1).

(20) This section has effect subject to subsection 156(3).

160 Breach of equipment rules and permit conditions

Offence

(1) A person commits an offence if:

(a) the person is subject to a prohibition imposed by the

equipment rules; and

(b) the prohibition does not consist of contravening a condition

of a permit; and

(d) the person's conduct contravenes the prohibition.

Penalty: 500 penalty units.

(2) A person commits an offence if:

(a) the person is subject to an obligation imposed by the

equipment rules; and

(b) the obligation is not an obligation to do an act or thing:

(i) within a particular period; or

(ii) before a particular time; and

and

(d) the obligation is not an obligation to comply with a condition

of a permit; and

(e) the person engages in conduct; and

(f) the person's conduct contravenes the obligation.

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Penalty: 500 penalty units.

(3) A person commits an offence if:

(a) the person is subject to an obligation imposed by the

equipment rules; and

(b) the obligation is an obligation to do an act or thing:

(i) within a particular period; or

(ii) before a particular time; and

and

(d) the obligation is not an obligation to comply with a condition

of a permit; and

(e) the person engages in conduct; and

(f) the person's conduct contravenes the obligation.

Penalty: 500 penalty units.

(4) The maximum penalty for each day that an offence against

subsection (3) continues is 10% of the maximum penalty that could

be imposed in respect of the principal offence.

Civil penalties

(5) If:

(a) a person is subject to a prohibition imposed by the equipment

rules; and

(b) the prohibition does not consist of contravening a condition

of a permit;

the person must not contravene the prohibition.

Civil penalty:

500 penalty units.

(6) If:

(a) a person is subject to an obligation imposed by the equipment

rules; and

(b) the obligation is not an obligation to do an act or thing:

(i) within a particular period; or

(ii) before a particular time; and

and

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(d) the obligation is not an obligation to comply with a condition

of a permit;

the person must not contravene the obligation.

Civil penalty:

500 penalty units.

(7) If:

(a) a person is subject to an obligation imposed by the equipment

rules; and

(b) the obligation is an obligation to do an act or thing:

(i) within a particular period; or

(ii) before a particular time; and

and

(d) the obligation is not an obligation to comply with a condition

of a permit;

the person must not contravene the obligation.

Civil penalty:

500 penalty units.

(8) The maximum civil penalty for each day that a contravention of

subsection (7) continues is 10% of the maximum civil penalty that

can be imposed in respect of a contravention of that subsection.

Note:

Subsection (7) is a continuing civil penalty provision under section 93

of the Regulatory Powers Act.

(9) If:

(a) a person is subject to an obligation imposed by the equipment

rules; and

(b) the obligation is an obligation to keep or retain records;

the person must not contravene the obligation.

Civil penalty:

30 penalty units.

(10) If a person is the holder of a permit, the person must not

contravene a condition of the permit.

Civil penalty:

100 penalty units.

(11) Subsection (10) does not apply if the person has a reasonable

excuse.

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Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see section 96 of the Regulatory Powers Act).

161 Equipment rules may confer powers on the ACMA

The equipment rules may make provision in relation to a matter by

conferring a power on the ACMA.

162 Equipment rules may confer powers on accredited persons

(1) The equipment rules may make provision in relation to a matter by

conferring a power on a person who holds a specified kind of

accreditation.

(2) The equipment rules may authorise a person who holds a specified

kind of accreditation to charge fees in relation to the exercise by

the person of a power conferred by the equipment rules. A fee must

not be such as to amount to taxation.

163 Equipment rules may authorise the charging of fees by certain

persons

The equipment rules may authorise a person who is required, under

rules made for the purposes of subsection 159(4) or (7), to do a

thing, to charge fees in relation to the doing of the thing by the

person. A fee must not be such as to amount to taxation.

164 Divisions 4 and 5 do not limit the ACMA's power to make

equipment rules

Divisions 4 and 5 do not, by implication, limit the ACMA's power

to make equipment rules.

Division 3--Protected symbols

165 Use or application of protected symbols

General prohibition

(1) A person must not:

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(a) use in relation to a business, trade, profession or occupation;

(b) apply (as a trade mark or otherwise) to goods imported,

manufactured, produced, sold, offered for sale or let on hire;

(i) goods or services; or

(ii) the promotion (by any means) of the 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.

Civil penalty:

50 penalty units.

(2) Nothing in subsection (1) limits anything else in that subsection.

Use or application--corporations power

(3) A constitutional corporation must not:

(a) use in relation to a business, trade, profession or occupation;

(b) apply (as a trade mark or otherwise) to goods imported,

manufactured, produced, sold, offered for sale or let on hire;

(i) goods or services; or

(ii) the promotion (by any means) of the 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.

Civil penalty:

50 penalty units.

(4) Nothing in subsection (3) limits anything else in that subsection.

Use or application--other legislative powers

(5) A person must not:

(a) use in relation to a business, trade, profession or occupation;

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(b) apply (as a trade mark or otherwise) to goods imported,

manufactured, produced, sold, offered for sale or let on hire;

(i) goods or services; or

(ii) the promotion (by any means) of the 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, if the use or application

is in the course of, or in relation to:

(d) trade or commerce between Australia and places outside

Australia; or

(e) trade or commerce among the States; or

(f) trade or commerce within a Territory, between a State and a

Territory or between 2 Territories; or

(g) the supply of goods or services to:

(i) the Commonwealth; or

(ii) a Territory; or

(iii) an authority or instrumentality of the Commonwealth;

(iv) an authority or instrumentality of a Territory; or

(h) the defence of Australia; or

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

(j) astronomical or meteorological observations; or

(k) an activity of a constitutional corporation; or

(l) banking, other than State banking; or

(m) insurance, other than State insurance; or

(n) weighing or measuring.

Civil penalty:

50 penalty units.

(6) Nothing in subsection (5) limits anything else in that subsection.

Exceptions

(7) Subsections (1), (3) and (5) do not apply to a person who uses or

applies a protected symbol for the purposes of:

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(a) labelling equipment in accordance with the equipment rules;

(b) labelling customer equipment (within the meaning of the

Telecommunications Act 1997

) or customer cabling (within

the meaning of that Act), in accordance with section 407 of

that Act.

(8) Subsections (1), (3) and (5) do not apply to a person who uses or

applies a protected symbol for a purpose of a kind specified in a

determination under subsection (9).

(9) The ACMA may, by legislative instrument, determine one or more

specified kinds of purpose for the purposes of subsection (8).

(10) The equipment rules may provide that subsections (1), (3) and (5)

do not apply in relation to a specified use or application of a

protected symbol.

166 Protected symbol

(1) For the purposes of this Act,

protected symbol

means a symbol:

(a) the design of which is set out in a determination under

subsection (2); and

(b) a purpose of which, after the commencement of this section,

is to indicate compliance by equipment with any standards

that:

(i) are prescribed by the equipment rules; and

(ii) are applicable to the equipment.

(2) The ACMA may, by legislative instrument, determine one or more

designs for the purposes of paragraph (1)(a).

Labels applied to equipment

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

(a) a label is applied to equipment; and

(b) the label embodies a symbol referred to in subsection (1);

the label is taken to indicate that the equipment meets the

requirements of any standards that:

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(d) are applicable to the equipment.

Division 4--Bans on equipment

Subdivision A--Interim bans

167 Interim bans on equipment

(1) The ACMA may, by notifiable instrument, impose an

interim ban

on equipment of a specified kind if:

(a) the ACMA has reasonable grounds to believe that

equipment

of that kind is designed to have an adverse effect on

radiocommunications; or

(b) the ACMA has reasonable grounds to believe that

reasonably foreseeable use (including a misuse) of equipment

of that kind would be likely to substantially:

(i) interfere with radiocommunications; or

(ii) disrupt or disturb radiocommunications in any other

way; or

(i) equipment of that kind consists of radiocommunications

transmitters; and

(ii) the ACMA has reasonable grounds to believe that radio

emissions resulting from the operation of equipment of

that kind would be likely to adversely affect the health

or safety of individuals.

Publication

(2) If the ACMA makes a notifiable instrument imposing an interim

ban, the ACMA must publish a notice that sets out:

(a) a statement to the effect that the ban has been imposed; and

(b) the time when the ban came, or is to come, into force; and

(d) the reason or reasons for imposing the ban.

(3) The following provisions have effect:

(a) the ACMA must publish a notice under subsection (2) on the

ACMA's website;

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(b) the legislative rules may provide that the ACMA must also

publish a notice under subsection (2) in accordance with the

legislative rules.

168 Duration of interim bans

(1) An interim ban imposed by the ACMA:

(a) comes into force on the day specified in the instrument

imposing the ban; and

(b) subject to this Act, remains in force for 60 days.

(2) If an interim ban is in force, the ACMA may, by notifiable

instrument, extend the period for which the ban is in force by a

period of up to 30 days.

169 Revocation of interim bans

(1) If an interim ban is in force:

(a) the ACMA may, by notifiable instrument, revoke the ban;

and

(b) the revocation takes effect on the day specified in the

instrument.

(2) If:

(a) an interim ban on equipment of a particular kind is in force;

and

(b) a permanent ban on equipment of that kind comes into force;

the interim ban is revoked when the permanent ban comes into

force.

170 Compliance with interim bans

Supply

(1) A person must not supply equipment of a particular kind to another

person if:

(a) the other person intends to operate the equipment; and

(b) an interim ban on equipment of that kind is in force.

Civil penalty:

200 penalty units.

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Offer to supply

(2) A person must not offer to supply equipment of a particular kind to

another person if:

(a) the other person intends to operate the equipment; and

(b) an interim ban on equipment of that kind is in force.

Civil penalty:

200 penalty units.

Operation

(3) A person must not operate equipment of a particular kind if an

interim ban on equipment of that kind is in force.

Civil penalty:

200 penalty units.

(4) If:

(a) a person contravenes subsection (1), (2) or (3); and

(b) another person suffers loss or damage because of a

reasonably foreseeable use (including a misuse) of the

equipment;

the other person is taken, for the purposes of this Division, to have

suffered the loss or damage because of the contravention.

171 Actions for damages

(1) If:

(a) a person (the

claimant

) suffers loss or damage because of

conduct engaged in by another person; and

(b) the conduct contravened subsection 170(1), (2) or (3);

the claimant may recover the amount of the loss or damage by

action in the Federal Court or the Federal Circuit Court of

Australia against:

(d) any person involved in the contravention.

(2) An action under subsection (1) may be commenced at any time

within 6 years after the day on which the cause of action that

relates to the conduct accrued.

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(3) A reference in this section to a person involved in the

contravention is a reference to a person who has:

(a) aided, abetted, counselled or procured the contravention; or

(b) induced the contravention, whether through threats or

promises or otherwise; or

in or a party to the contravention; or

(d) conspired with others to effect the contravention.

Subdivision B--Permanent bans

172 Permanent bans on equipment

(1) The ACMA may, by legislative instrument, impose a

permanent

ban

on equipment of a specified kind if:

(a) the ACMA is satisfied that equipment of that kind is

designed to have an adverse effect on radiocommunications;

(b) the ACMA is satisfied that a reasonably foreseeable use

(including a misuse) of equipment of that kind would be

likely to substantially:

(i) interfere with radiocommunications; or

(ii) disrupt or disturb radiocommunications in any other

way; or

(i) equipment of that kind consists of radiocommunications

transmitters; and

(ii) the ACMA is satisfied that radio emissions resulting

from the operation of equipment of that kind would be

likely to adversely affect the health or safety of

individuals.

(2) Before imposing a permanent ban on the grounds mentioned in

paragraph (1)(c), the ACMA must consult ARPANSA (the

Australian Radiation Protection and Nuclear Safety Agency).

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Publication

(3) If the ACMA makes a legislative instrument imposing a permanent

ban, the ACMA must publish a notice that sets out:

(a) a statement to the effect that the ban has been imposed; and

(b) the time when the ban came, or is to come, into force; and

(d) the reason or reasons for imposing the ban.

(4) The following provisions have effect:

(a) the ACMA must publish a notice under subsection (3) on the

ACMA's website;

(b) the legislative rules may provide that the ACMA must also

publish a notice under subsection (3) in accordance with the

legislative rules.

173 When permanent bans come into force

A permanent ban comes into force on the day specified by the

ACMA in the instrument imposing the ban.

174 Revocation of permanent bans

If a permanent ban is in force:

(a) the ACMA may, by legislative instrument, revoke the ban;

and

(b) the revocation takes effect on the day specified in the

instrument.

175 Compliance with permanent bans--offences

Supply

(1) A person commits an offence if:

(a) the person supplies equipment of a particular kind to another

person who intends to operate the equipment; and

(b) a permanent ban on equipment of that kind is in force.

Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.

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Offer to supply

(2) A person commits an offence if:

(a) the person offers to supply equipment of a particular kind to

another person who intends to operate the equipment; and

(b) a permanent ban on equipment of that kind is in force.

Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.

Operation

(3) A person commits an offence if:

(a) the person operates equipment of a particular kind; and

(b) a permanent ban on equipment of that kind is in force.

Penalty: Imprisonment for 2 years or 1,000 penalty units, or both.

Possession

(4) A person commits an offence if:

(a) the person has equipment of a particular kind in the person's

possession; and

(b) the possession is for the purpose of:

(i) operating the equipment; or

(ii) supplying the equipment to another person who intends

to operate the equipment; and

Penalty for contravention of this subsection: Imprisonment for 2

years or 1,000 penalty units, or both.

176 Compliance with permanent bans--civil penalties

Supply

(1) A person must not supply equipment of a particular kind to another

person if:

(a) the other person intends to operate the equipment; and

(b) a permanent ban on equipment of that kind is in force.

Civil penalty:

1,000 penalty units.

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Offer to supply

(2) A person must not offer to supply equipment of a particular kind to

another person if:

(a) the other person intends to operate the equipment; and

(b) a permanent ban on equipment of that kind is in force.

Civil penalty:

1,000 penalty units.

Operation

(3) A person must not operate equipment of a particular kind if a

permanent ban on equipment of that kind is in force.

Civil penalty:

1,000 penalty units.

Possession

(4) A person must not have equipment of a particular kind in the

person's possession if:

(a) a permanent ban on equipment of that kind is in force; and

(b) the possession is for the purpose of:

(i) operating the equipment; or

(ii) supplying the equipment to another person who intends

to operate the equipment.

Civil penalty:

1,000 penalty units.

(5) If:

(a) a person contravenes subsection (1), (2), (3) or (4); and

(b) another person suffers loss or damage because of a

reasonably foreseeable use (including a misuse) of the

equipment;

the other person is taken, for the purposes of this Division, to have

suffered the loss or damage because of the contravention.

177 Actions for damages

(1) If:

(a) a person (the

claimant

) suffers loss or damage because of

conduct engaged in by another person; and

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(b) the conduct contravened subsection 176(1), (2), (3) or (4);

the claimant may recover the amount of the loss or damage by

action in the Federal Court or the Federal Circuit Court of

Australia against:

(d) any person involved in the contravention.

(2) An action under subsection (1) may be commenced at any time

within 6 years after the day on which the cause of action that

relates to the conduct accrued.

(3) A reference in this section to a person involved in the

contravention is a reference to a person who has:

(a) aided, abetted, counselled or procured the contravention; or

(b) induced the contravention, whether through threats or

promises or otherwise; or

in or a party to the contravention; or

(d) conspired with others to effect the contravention.

Subdivision C--Presumptions

178 Presumptions

Presumption relating to supply or offer to supply

(1) For the purposes of subsections 170(1) and (2), 175(1) and (2) and

176(1) and (2), if:

(a) at a particular time, a person (the

first person

) supplies, or

offers to supply, equipment to another person; and

(b) the equipment can be operated;

it must be presumed that the other person intends to operate the

equipment, unless the first person adduces or points to evidence

that suggests a reasonable possibility that, at that time, the other

person did not intend to operate the equipment.

Presumptions relating to possession

(2) For the purposes of subsections 175(4) and 176(4), if:

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Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(a) at a particular time, a person has equipment in the person's

possession, otherwise than for the purpose of supplying the

equipment to another person; and

(b) the equipment can be operated;

it must be presumed that the person has the equipment in the

person's possession for the purpose of operating the equipment,

unless the person adduces or points to evidence that suggests a

reasonable possibility that, at that time, the person did not have the

equipment in the person's possession for the purpose of operating

the equipment.

(3) For the purposes of subsections 175(4) and 176(4), if:

(a) at a particular time, a person (the

first person

) has equipment

in the person's possession for the purpose of supplying the

equipment to another person; and

(b) the equipment can be operated;

it must be presumed that the other person intends to operate the

equipment, unless the first person adduces or points to evidence

that suggests a reasonable possibility that, at that time, the other

person did not intend to operate the equipment.

When equipment can be operated

(4) For the purposes of paragraphs (1)(b), (2)(b) and (3)(b), it is

immaterial whether the equipment can be operated:

(a) immediately; or

(b) after taking one or more steps (for example, the connection of

the equipment to a power supply).

Subdivision D--Amnesty for banned equipment

179 Amnesty for banned equipment

Amnesty period

(1) The ACMA may, by notifiable instrument, declare that, for the

purposes of subsection (2), a specified period is an amnesty period

for a specified permanent ban.

Schedule 4

Equipment etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Amnesty

(2) If:

(a) a permanent ban on equipment of a particular kind is in force;

and

(b) an amnesty period has been declared under subsection (1) for

the ban;

then:

period for the ban, agree with the ACMA (on behalf of the

Commonwealth) to forfeit the equipment to the

Commonwealth; and

(d) if the owner does so--subsections 175(4) and 176(4), to the

extent to which they relate to the ban, do not apply, and are

taken never to have applied, to the possession of the

equipment by:

(i) the owner; or

(ii) any other person.

180 The ACMA may take possession of equipment

(1) If the owner of equipment agrees, in accordance with section 179,

to forfeit the equipment to the Commonwealth:

(a) the ACMA may take possession of the equipment; and

(b) if the ACMA does so--the ACMA must give the owner a

receipt for the equipment taken into possession.

(2) If:

(a) the ACMA has purported to take possession of equipment

under subsection (1); and

(b) the ACMA was not entitled to take possession of the

equipment under that subsection;

the ACMA must take all reasonable steps to return the equipment

to the owner of the equipment.

181 Forfeiture of equipment to the Commonwealth

(1) If:

Equipment etc.

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Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(a) the ACMA has taken possession of equipment under

subsection 180(1); and

(b) at least 90 days have passed since the ACMA gave the owner

a receipt under paragraph 180(1)(b) for the equipment;

the ACMA may declare, in writing, that the equipment is forfeited

to the Commonwealth.

(2) The ACMA must give a copy of the declaration to the owner of the

equipment.

Deemed forfeiture

(3) If:

(a) the owner of equipment agrees, in accordance with section

179, to forfeit the equipment to the Commonwealth; and

(b) the ACMA has taken possession of the equipment under

subsection 180(1); and

the start of the day when the ACMA gave the owner a receipt

under paragraph 180(1)(b) for the equipment, made a

declaration under subsection (1) of this section that the

equipment is forfeited to the Commonwealth;

then, at the end of the 120-day period, the equipment is forfeited to

the Commonwealth.

182 Forfeited equipment may be sold, destroyed or otherwise

disposed of

Equipment forfeited under section 181:

(a) may be sold, destroyed or otherwise disposed of in

accordance with the directions of the ACMA; and

(b) pending such directions, must be kept in such custody as the

ACMA directs.

Schedule 4

Equipment etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Division 5--Recall of equipment

Subdivision A--Compulsory recall of equipment

183 Compulsory recall of equipment

Equipment that will or may cause substantial disruption,

substantial disturbance or substantial interference to

radiocommunications

(1) The ACMA may, by legislative instrument, issue a

recall notice

for equipment of a specified kind if:

(a) a person, in trade or commerce, supplies, or has supplied,

equipment of that kind; and

(b) the ACMA is satisfied that a reasonably foreseeable use

(including a misuse) of such equipment will or may cause

substantial disruption, substantial disturbance or substantial

interference to radiocommunications; and

equipment have not taken satisfactory action to prevent that

equipment causing substantial disruption, substantial

disturbance or substantial interference to

radiocommunications.

Equipment designed to have an adverse effect on

radiocommunications

(2) The ACMA may, by legislative instrument, issue a

recall notice

for equipment of a specified kind if:

(a) a person, in trade or commerce, supplies, or has supplied,

equipment of that kind; and

(b) the ACMA is satisfied that equipment of that kind is

designed to have an adverse effect on radiocommunications.

Equipment likely to adversely affect health or safety

(3) The ACMA may, by legislative instrument, issue a

recall notice

for equipment of a specified kind if:

(a) equipment of that kind consists of radiocommunications

transmitters; and

Equipment etc.

Schedule 4

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(b) a person, in trade or commerce, supplies, or has supplied,

equipment of that kind; and

operation of equipment of that kind would be likely to

adversely affect the health or safety of individuals.

Permanent ban

(4) The ACMA may, by legislative instrument, issue a

recall notice

for equipment of a specified kind if:

(a) a person, in trade or commerce, supplies, or has supplied,

equipment of that kind; and

(b) a permanent ban on such equipment is in force; and

equipment have not taken satisfactory action to recall such

equipment so supplied by those suppliers.

Publication

(5) If the ACMA, by legislative instrument, issues a recall notice under

subsection (1), (2), (3) or (4), the ACMA must publish a notice that

sets out:

(a) a statement to the effect that the recall notice has been issued;

and

(b) the time when the recall notice commences, or is to

commence; and

(d) the reason or reasons for issuing the recall notice.

(6) The following provisions have effect:

(a) the ACMA must publish a notice under subsection (5) on the

ACMA's website;

(b) the legislative rules may provide that the ACMA must also

publish a notice under subsection (5) in accordance with the

legislative rules.

Schedule 4

Equipment etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Other matters

(7) It is not necessary, for the purposes of paragraph (1)(a) or (c),

(2)(a), (3)(b) or (4)(a) or (c), for the ACMA to know the identities

of any of the suppliers of the equipment.

(8) A recall notice for equipment may be issued under subsection (1),

(2), (3) or (4) even if the equipment has become fixtures since the

time the equipment was supplied.

184 Contents of a recall notice

(1) A recall notice for equipment may require one or more suppliers of

the equipment to take one or more of the following actions:

(a) recall the equipment;

(b) disclose to the public, or to a class of persons specified in the

notice, the reasons for the issue of the recall notice;

notice, that the supplier undertakes to do whichever of the

following the supplier thinks is appropriate:

(i) repair or modify the equipment;

(ii) replace the equipment;

(iii) refund to a person to whom the equipment was supplied

(whether by the supplier or by another person), and who

returns the equipment, the price paid for the equipment;

(d) if an undertaking is given by a supplier in accordance with

paragraph (c):

(i) comply with the undertaking; and

(ii) comply with section 185 in relation to the undertaking;

(e) disclose to the public, or to a class of persons specified in the

notice, procedures as specified in the notice for disposing of

the equipment.

(2) The recall notice may specify:

(a) the manner in which the action required to be taken by the

notice must be taken; and

(b) the period within which the action must be taken.

Equipment etc.

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Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(3) If the recall notice requires a supplier of the equipment to take

action of a kind referred to in paragraph (1)(c), the ACMA may

specify in the notice that, if:

(a) the supplier undertakes to refund the price paid for

equipment; and

(b) a period of more than 12 months has elapsed since a person

(whether or not the person to whom the refund is to be made)

acquired the equipment from the supplier;

the amount of a refund may be reduced by the supplier by an

amount, calculated in a manner specified in the notice, that is

attributable to the use which a person has had of the equipment.

185 Obligations of a supplier in relation to a recall notice

Scope

(1) This section applies if a recall notice for equipment requires a

supplier to take action of a kind referred to in paragraph 184(1)(c).

Obligations--repair or modify

(2) If:

(a) the recall notice was issued under subsection 183(1); and

(b) the supplier undertakes to repair or modify the equipment;

the supplier must cause the equipment to be repaired or modified

so that:

not cause substantial disruption, substantial disturbance or

substantial interference to radiocommunications; and

(d) the equipment is not covered by an interim ban, or a

permanent ban, that is in force.

(3) If:

(a) the recall notice was issued under subsection 183(2); and

(b) the supplier undertakes to repair or modify the equipment;

the supplier must cause the equipment to be repaired or modified

so that:

on radiocommunications; and

Schedule 4

Equipment etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(d) the equipment is not covered by an interim ban, or a

permanent ban, that is in force.

(4) If:

(a) the recall notice was issued under subsection 183(3); and

(b) the supplier undertakes to repair or modify the equipment;

the supplier must cause the equipment to be repaired or modified

so that:

(including a misuse) of the equipment would not be likely to

adversely affect the health or safety of individuals; and

(d) the equipment is not covered by an interim ban, or a

permanent ban, that is in force.

Obligations--replacement

(5) If:

(a) the recall notice was issued under subsection 183(1); and

(b) the supplier undertakes to replace the equipment;

the supplier must replace the equipment with similar equipment

that satisfies the following conditions:

equipment will not cause substantial disruption, substantial

disturbance or substantial interference to

radiocommunications;

(d) the similar equipment is not covered by an interim ban, or a

permanent ban, that is in force.

(6) If:

(a) the recall notice was issued under subsection 183(2); and

(b) the supplier undertakes to replace the equipment;

the supplier must replace the equipment with similar equipment

that satisfies the following conditions:

effect on radiocommunications;

(d) the similar equipment is not covered by an interim ban, or a

permanent ban, that is in force.

(7) If:

Equipment etc.

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Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

(a) the recall notice was issued under subsection 183(3); and

(b) the supplier undertakes to replace the equipment;

the supplier must replace the equipment with similar equipment

that satisfies the following conditions:

(including a misuse) of the similar equipment would not be

likely to adversely affect the health or safety of individuals;

(d) the similar equipment is not covered by an interim ban, or a

permanent ban, that is in force.

(8) If the supplier undertakes:

(a) to repair or modify the equipment; or

(b) to replace the equipment;

the cost of the repair, modification or replacement, including any

necessary transportation costs, must be paid by the supplier.

186 Compliance with recall notices

Offence

(1) A person commits an offence if:

(a) a recall notice for equipment is in force; and

(b) the notice requires the person to do one or more things; and

(d) the person's conduct contravenes the notice.

Penalty: 1,000 penalty units.

Civil penalty

(2) If:

(a) a recall notice for equipment is in force; and

(b) the notice requires a person to do one or more things;

the person must comply with the notice.

Civil penalty:

1,000 penalty units.

(3) If:

(a) a person contravenes subsection (2) in relation to equipment;

and

Schedule 4

Equipment etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(b) another person suffers loss or damage:

(i) because of a reasonably foreseeable use (including a

misuse) of the equipment; or

(ii) because, contrary to the recall notice, the other person

was not provided with particular information in relation

to the equipment;

the other person is taken, for the purposes of this Division, to have

suffered the loss or damage because of the contravention.

187 Actions for damages

(1) If:

(a) a person (the

claimant

) suffers loss or damage because of

conduct engaged in by another person; and

(b) the conduct contravened subsection 186(2);

the claimant may recover the amount of the loss or damage by

action in the Federal Court or the Federal Circuit Court of

Australia against:

(d) any person involved in the contravention.

(2) An action under subsection (1) may be commenced at any time

within 6 years after the day on which the cause of action that

relates to the conduct accrued.

(3) A reference in this section to a person involved in the

contravention is a reference to a person who has:

(a) aided, abetted, counselled or procured the contravention; or

(b) induced the contravention, whether through threats or

promises or otherwise; or

in or a party to the contravention; or

(d) conspired with others to effect the contravention.

Equipment etc.

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Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Subdivision B--Voluntary recall of equipment

188 Notification requirements for a voluntary recall of equipment

Scope

(1) This section applies if a person voluntarily takes action to recall

equipment of a particular kind (including equipment that has

become fixtures since being supplied) because:

(a) a reasonably foreseeable use (including a misuse) of such

equipment will or may cause substantial disruption,

substantial disturbance or substantial interference to

radiocommunications; or

(b) such equipment would be likely to have an adverse effect on

radiocommunications; or

radiocommunications transmitters--radio emissions resulting

from a reasonably foreseeable use (including a misuse) of

such equipment would be likely to adversely affect the health

or safety of individuals; or

(d) a permanent ban on such equipment is in force.

Notifying the ACMA

(2) The person must, within 2 days after taking the action, give the

ACMA a written notice that complies with subsection (4).

Civil penalty:

20 penalty units.

(3) The following provisions have effect:

(a) the ACMA must publish a copy of the notice on the ACMA's

website;

(b) the legislative rules may provide that the ACMA must also

publish a copy of the notice in accordance with the legislative

rules.

Requirements for notice

(4) A notice under subsection (2) must:

(a) state that the equipment is subject to recall; and

Schedule 4

Equipment etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(b) if a reasonably foreseeable use or misuse of the equipment

will or may cause substantial disruption, substantial

disturbance or substantial interference to

radiocommunications--set out the circumstances of that use

or misuse; and

radiocommunications--set out that adverse effect; and

(d) if:

(i) the equipment consists of radiocommunications

transmitters; and

(ii) radio emissions resulting from a reasonably foreseeable

use (including a misuse) of the equipment would be

likely to adversely affect the health or safety of

individuals;

set out:

(iii) the circumstances of that use (including misuse); and

(iv) the way in which the health or safety of individuals is

likely to be adversely affected by that use (including

misuse); and

(e) if a permanent ban on the equipment is in force--state that

fact.

Continuing contravention of civil penalty provision

(5) The maximum civil penalty for each day that a contravention of

subsection (2) continues is 10% of the maximum civil penalty that

can be imposed in respect of a contravention of that subsection.

Note:

Subsection (2) is a continuing civil penalty provision under section 93

of the Regulatory Powers Act.

25 Subsection 238(2)

Omit "or to make standards under Part 4.1".

26 Paragraph 262(2)(a)

Omit "standards may be made under Part 4.1", substitute "equipment

rules may be made".

27 Paragraph 279(1)(d)

Omit "300; and", substitute "300.".

Equipment etc.

Schedule 4

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

28 Paragraph 279(1)(e)

Repeal the paragraph.

29 Paragraphs 285(p) to (s)

Repeal the paragraphs, substitute:

(p) refusal to issue a permit under the equipment rules;

(q) a decision under the equipment rules about the conditions of

a permit;

(r) cancellation of a permit under the equipment rules;

(s) a decision of the ACMA:

(i) made under the equipment rules; and

(ii) declared by the equipment rules to be a decision to

which this section applies;

(sa) a decision to impose an interim ban under section 167;

30 Subsection 300(4) (penalty)

Omit "Penalty", substitute "Civil penalty".

31 After section 300

Insert:

300A Transitional--failure to comply with requirements to be met

after a label has been applied to a device

General rule

(1) If:

(a) before the commencement of this section, the ACMA gave a

notice under repealed subsection 182(1); and

(b) the notice specified requirements to be met after a label has

been applied to a device;

a manufacturer or importer must comply with those requirements

in relation to a label that was applied to a device before the

commencement of this section.

Civil penalty:

20 penalty units.

Schedule 4

Equipment etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(2) Subsection (1) does not apply if the manufacturer or importer has a

reasonable excuse.

Corporations power

(3) If:

(a) before the commencement of this section, the ACMA gave a

notice under repealed subsection 182(1); and

(b) the notice specified requirements to be met after a label has

been applied to a device; and

the manufacturer or importer must comply with those requirements

in relation to a label that was applied to a device before the

commencement of this section.

Civil penalty:

20 penalty units.

(4) Subsection (3) does not apply if the manufacturer or importer has a

reasonable excuse.

Other legislative powers

(5) If:

(a) before the commencement of this section, the ACMA gave a

notice under repealed subsection 182(1); and

(b) the notice specified requirements to be met after a label has

been applied to a device; and

importer manufactured or imported a device for the purposes

of supply:

(i) in the course of, or in relation to, constitutional trade or

commerce; or

(ii) to the Commonwealth; or

(iii) to a Territory; or

(iv) to an authority or instrumentality of the

Commonwealth; or

(v) to an authority or instrumentality of a Territory;

the manufacturer or importer must comply with those requirements

in relation to a label that was applied to the device before the

commencement of this section.

Equipment etc.

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Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Civil penalty:

20 penalty units.

(6) Subsection (5) does not apply if the manufacturer or importer has a

reasonable excuse.

Constitutional trade or commerce

(7) For the purposes of this section,

constitutional trade or commerce

means:

(a) trade or commerce between Australia and places outside

Australia; or

(b) trade or commerce among the States; or

Territory or between 2 Territories.

Transitional

(8) If:

(a) a notice was in force under repealed section 182 immediately

before the commencement of this section; and

(b) the notice specified requirements to be met after a label has

been applied to a device;

then, despite the repeal of that section by the

Radiocommunications

Legislation Amendment (Reform and Modernisation) Act 2020

, the

notice, so far as it specified those requirements, continues in force,

in relation to a label applied to a device before the commencement

of this section, as if that section had not been repealed.

300B Transitional--general powers of inspectors

(1) An inspector may:

(a) if the inspector suspects a person on reasonable grounds of

having recorded particulars relating to the supply of a

radiocommunications device in a document under repealed

section 301--require the person to produce that document; or

(b) require a person who has been required to retain records by a

notice under repealed subsection 182(1) for a specified

period to produce such records at any time during that period.

(2) A person must comply with a requirement under subsection (1).

Schedule 4

Equipment etc.

Part 1

Amendment of the Radiocommunications Act 1992

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Civil penalty:

20 penalty units.

(3) Subsection (2) does not apply if the person has a reasonable

excuse.

300C Transitional--retention of records of the supply of

radiocommunications devices

If:

(a) a person supplied a radiocommunications device during the

2-year period ending at the commencement of this section;

and

(b) the person was required by repealed section 301 to cause

particulars relating to the supply of the device to be recorded

in a document;

the person must retain the document for at least 2 years after the

supply.

Civil penalty:

20 penalty units.

32 Section 301

Repeal the section.

33 Subsection 305(5) (definition of

radiocommunications

instrument

)

Repeal the definition, substitute:

radiocommunications instrument

means:

(a) a licence; or

(b) a permit; or

34 Subparagraph 314(3)(b)(i)

Omit "standards", substitute "legislative rules, equipment rules".

35 Subsection 314A(6) (after paragraph (a) of the definition of

instrument under this Act

)

Insert:

(aa) the legislative rules; or

Schedule 4

Equipment etc.

Part 2

Amendments contingent on the commencement of the Federal Circuit and

Family Court of Australia Act 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Part 2--Amendments contingent on the

commencement of the Federal Circuit and

Family Court of Australia Act 2020

Radiocommunications Act 1992

36 Subsections 171(1), 177(1) and 187(1)

Omit "Federal Circuit Court of Australia", substitute "Federal Circuit

and Family Court of Australia".

Equipment etc.

Schedule 4

Other amendments

Part 3

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

Part 3--Other amendments

Australian Communications and Media Authority Act 2005

37 Subsection 66(5)

Omit "or section 182 of the

Radiocommunications Act 1992

", substitute

"or equipment rules made under the

Radiocommunications Act 1992

Telecommunications Act 1997

38 Subsection 417(6)

Omit all the words after "407".

39 After subsection 417(6)

Insert:

(6A) This section does not apply to a person who uses or applies a

protected symbol for the purposes of labelling equipment in

accordance with equipment rules made under the

Radiocommunications Act 1992.

Trans-Tasman Mutual Recognition Act 1997

40 Clause 3 of Schedule 2 (table item dealing with

radiocommunications devices)

Repeal the item.

41 Clause 3 of Schedule 2 (before the table item dealing with

road vehicles)

Insert:

Radiocommunications

Radiocommunications Act 1992

and rules made under that Act, except to

the extent to which that Act, or those rules, deal with applying labels

(within the meaning of that Act) to equipment (within the meaning of

that Act)

Schedule 4

Equipment etc.

Part 4

Application and transitional provisions

100

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No. , 2020

Part 4--Application and transitional provisions

42 Transitional

--standards

Scope

(1)

This item applies to an instrument if:

(a) the instrument was in force immediately before the

commencement of this item; and

(b) the instrument was made under subsection 162(1) of the

Radiocommunications Act 1992

Effect of instrument

(2)

The instrument has effect, after the commencement of this item, as if:

(a) it had been made as equipment rules under subsection 156(1)

of the

Radiocommunications Act 1992

; and

(b) any requirement imposed by the

Radiocommunications Act

1992

or the

Legislation Act 2003

in relation to the making of

the instrument (including a requirement about the form of

words) had been satisfied; and

explanatory note that:

(i) is about the expression "device"; and

(ii) includes the words "and subsection 9(1)";

those words were omitted from that paragraph; and

(d) in a case where the instrument includes:

(i) the words "For paragraph 162(1)(a) of the Act"; or

(ii) the words "for paragraph 162(1)(a) of the Act"; or

(iii) the words "for the purposes of paragraph 162(1)(a) of

the Act"; or

(iv) the words "for the purpose of paragraph 162(1)(a) of the

Act";

those words were omitted from the instrument; and

(e) in a case where the instrument includes:

(i) the words "another standard made under section 162 of

the Act"; or

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Application and transitional provisions

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No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

101

(ii) the words "another standard under section 162 of the

Act";

those words were omitted from the instrument and the words

"another standard prescribed by the equipment rules" were

substituted; and

(f) in a case where the instrument has one or more explanatory

notes that relate to the definition of

non-standard device

each of those notes were omitted from the instrument.

Note:

Subsection 158(1) of the

Radiocommunications Act 1992

provides that

the equipment rules may prescribe standards for equipment.

43 Transitional

Radiocommunications (Compliance

Labelling

--Devices) Notice 2014

Scope

(1)

This item applies to an instrument if:

(a) the instrument was in force immediately before the

commencement of this item; and

(b) the instrument was given under subsection 182(1) of the

Radiocommunications Act 1992

; and

Radiocommunications

(Compliance Labelling--Devices) Notice 2014

Effect of instrument

(2)

The instrument has effect, after the commencement of this item, as if:

(a) it had been made as equipment rules under subsection 156(1)

of the

Radiocommunications Act 1992

; and

(b) any requirement imposed by the

Radiocommunications Act

1992

or the

Legislation Act 2003

in relation to the making of

the instrument (including a requirement about the form of

words) had been satisfied; and

in:

(i) the definition of

agent

in subsection 4(1) of the

instrument; and

(ii) paragraph 8(2)(c) of the instrument;

Schedule 4

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Application and transitional provisions

102

Radiocommunications Legislation Amendment (Reform and

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No. , 2020

were omitted and the words "for the provisions of the

equipment rules that relate to obligations to apply labels to

devices" were substituted; and

(d) the note to the definition of

applicable standard

subsection 4(1) of the instrument were omitted; and

(e) the reference to subsection 267(1) of the

Radiocommunications Act 1992

in paragraph (a) of the

definition of

authorised officer

in subsection 4(1) of the

instrument were a reference to subsection 284(1) of that Act;

and

(f) the reference to subsection 9(1) of the

Radiocommunications

Act 1992

in the note to subsection 4(1) of the instrument were

a reference to section 5 of that Act; and

(g) the words "

instruments made under section 182 of the

Act

" were omitted from the heading to section 7 of the

instrument and the words "

another set of equipment rules

were substituted; and

(h) the words "another notice made under section 182 of the

Act" were omitted from section 7 of the instrument and the

words "another set of equipment rules" were substituted; and

(i) the words "that notice" were omitted from section 7 of the

instrument and the words "that set of equipment rules" were

substituted; and

(j) the words "other notice made under section 182 of the Act"

were omitted from the note to section 7 of the instrument and

the words "other set of equipment rules" were substituted;

and

(k) the note were omitted from subsection 11(1) of the

instrument; and

(l) all the words after "requirement." were omitted from note 1

to the definition of

officer of the supplier

subsection 11A(4) of the instrument; and

(m) the note were omitted from Part 1 of Schedule 1 to the

instrument; and

(n) the note were omitted from Part 2 of Schedule 1 to the

instrument.

Equipment etc.

Schedule 4

Application and transitional provisions

Part 4

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

103

44 Transitional

Radiocommunications Labelling

(Electromagnetic Compatibility) Notice 2017

Scope

(1)

This item applies to an instrument if:

(a) the instrument was in force immediately before the

commencement of this item; and

(b) the instrument was given under subsection 182(1) of the

Radiocommunications Act 1992

; and

Radiocommunications

Labelling (Electromagnetic Compatibility) Notice 2017

Effect of instrument

(2)

The instrument has effect, after the commencement of this item, as if:

(a) it had been made as equipment rules under subsection 156(1)

of the

Radiocommunications Act 1992

; and

(b) any requirement imposed by the

Radiocommunications Act

1992

or the

Legislation Act 2003

in relation to the making of

the instrument (including a requirement about the form of

words) had been satisfied; and

in the

definition of

agent

in subsection 1.5(1) of the instrument

were omitted and the words "for the provisions of the

equipment rules that relate to obligations to apply labels to

devices" were substituted; and

(d) the reference to subsection 267(1) of the

Radiocommunications Act 1992

in paragraph (a) of the

definition of

authorised officer

in subsection 1.5(1) of the

instrument were a reference to subsection 284(1) of that Act;

and

(e) the words "accredited by NATA under subsection 183(3) of

the Act" were omitted from the definition of

competent body

in subsection 1.5(1) of the instrument

and the words

"determined under subitem 44(3) of Schedule 4 to the

Radiocommunications Legislation Amendment (Reform and

Modernisation) Act 2020

" were substituted; and

(f) the words "and subsection 9(1)" were omitted from note 1 to

subsection 1.5(1) of the instrument; and

Schedule 4

Equipment etc.

Part 4

Application and transitional provisions

104

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(g) the reference to section 267 of the

Radiocommunications Act

1992

in note 1 to subsection 1.5(1) of the instrument were a

reference to subsection 284(1) of that Act; and

(h) the words "

labelling notice made under the Act

" were

omitted from the heading to section 2.5 of the instrument and

the words "

set of equipment rules

" were substituted; and

(i) the words "another notice made under subsection 182(1) of

the Act" were omitted from section 2.5 of the instrument and

the words "another set of equipment rules" were substituted;

and

(j) the words "other notice made under subsection 182(1) of the

Act" were omitted from the note to section 2.5 of the

instrument and the words "other set of equipment rules" were

substituted; and

(k) the note to section 4.2 of the instrument were omitted; and

(l) the words "Under section 187A of the Act, a supplier that

fails to comply with a specific requirement that must be met

after a label has been applied to a device may commit an

offence." were omitted from:

(i) note 1 to section 4.2A of the instrument; and

(ii) the note to subsection 6.2(2) of the instrument; and

(m) the words "knowingly or recklessly causing substantial" were

omitted from the note at the start of Schedule 2 to the

instrument and the words "engaging in conduct that will

result, or is likely to result, in" were substituted; and

(n) the words "The RCM is a protected symbol for section 188A

of the Act." were omitted from the note to Schedule 3 to the

instrument.

Competent body

(3)

The National Association of Testing Authorities Australia (ACN

004 379 748) may, by writing, determine that a specified body is a

competent body

for the purposes of the instrument.

(4)

Subject to subitem (5), if, immediately before the commencement of

this item, a body was the subject of a determination under

subsection 183(3) of the

Radiocommunications Act 1992

, subitem (3)

has effect, after the commencement of this item, as if the body were the

subject of a determination under that subitem.

Equipment etc.

Schedule 4

Application and transitional provisions

Part 4

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

105

(5)

The National Association of Testing Authorities Australia (ACN

004 379 748) may, by writing, determine that subitem (3) ceases to

apply to a specified body.

(6)

A determination under subitem (3) or (5) is a notifiable instrument.

45 Transitional

Radiocommunications (Compliance

Labelling

--Electromagnetic Radiation) Notice 2014

Scope

(1)

This item applies to an instrument if:

(a) the instrument was in force immediately before the

commencement of this item; and

(b) the instrument was given under subsection 182(1) of the

Radiocommunications Act 1992

; and

Radiocommunications

(Compliance Labelling--Electromagnetic Radiation)

Notice 2014

Effect of instrument

(2)

The instrument has effect, after the commencement of this item, as if:

(a) it had been made as equipment rules under subsection 156(1)

of the

Radiocommunications Act 1992

; and

(b) any requirement imposed by the

Radiocommunications Act

1992

or the

Legislation Act 2003

in relation to the making of

the instrument (including a requirement about the form of

words) had been satisfied; and

in the

definition of

agent

in subsection 4(1) of the instrument were

omitted and the words "for the provisions of the equipment

rules that relate to obligations to apply labels to devices"

were substituted; and

(d) the reference to subsection 267(1) of the

Radiocommunications Act 1992

in paragraph (a) of the

definition of

authorised officer

in subsection 4(1) of the

instrument were a reference to subsection 284(1) of that Act;

and

Schedule 4

Equipment etc.

Part 4

Application and transitional provisions

106

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(e) the words "a notice made by the ACMA under section 182 of

the Act"

in paragraph (b) of the definition of

supplier code

number

in subsection 4(1) of the instrument were omitted

and the words "the equipment rules" were substituted; and

(f) the words "

labelling notice made under the

Radiocommunications Act 1992

" were omitted from the

heading to section 8A of the instrument and the words "

set of

equipment rules

" were substituted; and

(g) the words "another notice made under subsection 182(1) of

the Act, as in force from time to time," were omitted from

section 8A of the instrument and the words "another set of

equipment rules" were substituted; and

(h) the words "other notice made under subsection 182(1) of the

Act" were omitted from the note to section 8A of the

instrument and the words "other set of equipment rules" were

substituted; and

(i) the note to subsection 10(1) of the instrument were omitted;

and

(j) the words "Under section 187A of the Act, a supplier that

fails to comply with a specific requirement that must be met

after a label has been applied to a device may be subject to a

pecuniary penalty." were omitted from note 1 to section 10A

of the instrument; and

(k) the note were omitted from Part 1 of Schedule 1 to the

instrument; and

(l) the note were omitted from Part 2 of Schedule 1 to the

instrument.

46 Transitional

Telecommunications (Labelling Notice for

Customer Equipment and Customer Cabling)

Instrument 2015

Scope

(1)

This item applies to an instrument if:

(a) the instrument was in force immediately before the

commencement of this item; and

(b) the instrument was made under subsection 407(1) of the

Telecommunications Act 1997

; and

Equipment etc.

Schedule 4

Application and transitional provisions

Part 4

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

107

Telecommunications

(Labelling Notice for Customer Equipment and Customer

Cabling) Instrument 2015

Effect of instrument

(2)

The instrument has effect, after the commencement of this item, as if:

(a) the words "a notice made by the ACMA under section 182 of

the

Radiocommunications Act 1992

in paragraph (b) of the

definition of

supplier code number

in subsection 4(1) of the

instrument were omitted and the words "the equipment rules

(within the meaning of the

Radiocommunications Act 1992

were substituted; and

(b) the words "a notice under section 182 of the

Radiocommunications Act 1992

" were omitted from note 2 to

section 7 of the instrument and the words "a set of equipment

rules (within the meaning of the

Radiocommunications Act

1992

)" were substituted; and

from note 2 to section 7 of the instrument and the words "that

set of equipment rules" were substituted.

47 Transitional

--permits

Scope

(1)

This item applies to a permit if:

(a) the permit was in force immediately before the

commencement of this item; and

(b) the permit was issued under subsection 167(2) of the

Radiocommunications Act 1992

Effect of permit

(2)

The permit has effect, after the commencement of this item, as if:

(a) it had been issued by the ACMA under equipment rules made

for the purposes of subsection 159(15) of the

Radiocommunications Act 1992

; and

(b) any requirement imposed by the equipment rules in relation

to the issue of the permit (including a requirement about the

form of words) had been satisfied; and

Schedule 4

Equipment etc.

Part 4

Application and transitional provisions

108

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

reference to a device that:

(i) 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

(ii) 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; and

(d) any reference in the permit to non-standard devices were a

reference to devices that:

(i) if the devices have not been altered or modified in a

material respect after their manufacture or, if they have

been imported, after their importation--do not comply

with a standard that was applicable to them when they

were manufactured or imported, as the case may be; or

(ii) if the devices were so altered or modified--do not

comply with a standard that was applicable to them

when they were so altered or modified.

(3)

For the purposes of paragraphs (2)(c) and (d), the standard that was

applicable to a device at a particular time is:

(a) if that time occurred before the commencement of this

item--the standard that:

(i) was made under section 162 of the

Radiocommunications Act 1992

before the

commencement of this item; and

(ii) was applicable to the device at that time; or

(b) if that time occurred at or after the commencement of this

item--the standard that:

(i) was prescribed by the equipment rules; and

(ii) was applicable to the device at that time.

(4)

If the permit authorises radio emission, the permit remains in force until

the end of the day of expiration specified in the permit.

(5)

If the permit does not authorise radio emission, the permit remains in

force:

Equipment etc.

Schedule 4

Application and transitional provisions

Part 4

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

109

(a) if the permit specifies a day of expiration--until the end of

that day; or

(b) otherwise--indefinitely.

(6)

Subitems (4) and (5) have effect subject to:

(a) the provisions of the equipment rules relating to cancellation

of permits; and

(b) section 307 of the

Radiocommunications Act 1992

(7)

Despite the repeal of subsection 169(6) of the

Radiocommunications

Act 1992

by this Schedule, if a declaration made under that subsection

in relation to the permit was in force immediately before the

commencement of this item, the declaration continues to apply in

relation to the permit, after the commencement of this item, as if the

repeal had not happened.

48 Transitional

Protected Symbols Determination 2013

Scope

(1)

This item applies to a determination if:

(a) the determination was in force immediately before the

commencement of this item; and

(b) the determination was made under section 188A of the

Radiocommunications Act 1992

and section 417 of the

Telecommunications Act 1997

; and

Protected Symbols

Determination 2013

Effect of determination

(2)

The determination, so far as it was made under subsection 188A(7) of

the

Radiocommunications Act 1992

, has effect, after the commencement

of this item, as if:

(a) it had been made under subsection 165(9) of the

Radiocommunications Act 1992

; and

(b) any requirement imposed by the

Radiocommunications Act

1992

or the

Legislation Act 2003

in relation to the making of

the determination (including a requirement about the form of

words) had been satisfied.

Schedule 4

Equipment etc.

Part 4

Application and transitional provisions

110

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(3)

The determination, so far as it was made under

subparagraph 188A(8)(a)(i) or (b)(i) of the

Radiocommunications Act

1992

, has effect, after the commencement of this item, as if:

(a) it had been made under subsection 166(2) of the

Radiocommunications Act 1992

; and

(b) any requirement imposed by the

Radiocommunications Act

1992

or the

Legislation Act 2003

in relation to the making of

the determination (including a requirement about the form of

words) had been satisfied.

(4)

The determination has effect, after the commencement of this item, as

if:

(a) the words "

standard made under section 162 of the

Radiocommunications Act

in the definition of

applicable

standard

in section 4 of the determination were omitted and

the words "standard prescribed by equipment rules made

under the

Radiocommunications Act

" were substituted; and

(b) the words "a notice made under section 182 of the

Radiocommunications Act"

in paragraph 5(2)(b) of the

determination were omitted and the words "equipment rules

made under the

Radiocommunications Act

" were substituted;

and

Radiocommunications Act 1992

in sections 5 and 8 of the

determination were a reference to subsection 165(8) of that

Act; and

(d) the reference to subparagraph 188A(8)(b)(i) of the

Radiocommunications Act 1992

in subsection 6(1) of the

determination were a reference to subsection 166(2) of that

Act; and

(e) the reference to subparagraph 188A(8)(a)(i) of the

Radiocommunications Act 1992

in subsection 6(2) of the

determination were a reference to subsection 166(2) of that

Act.

49 Transitional

--permanent bans

Scope

(1)

This item applies to an instrument if:

Equipment etc.

Schedule 4

Application and transitional provisions

Part 4

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

111

(a) the instrument was in force immediately before the

commencement of this item; and

(b) the instrument was made under subsection 190(1) of the

Radiocommunications Act 1992

; and

possession for the purpose of operation or supply, of a

specified kind of device is prohibited (for this purpose, it is

immaterial whether the word "kind", or a similar word, is

used in the instrument); and

(d) a device of that kind was covered by paragraph 190(2)(a) or

(b) of the

Radiocommunications Act 1992

as in force

immediately before the commencement of this item; and

(e) a device of that kind is equipment (within the meaning of the

Radiocommunications Act 1992

Effect of instrument

(2)

The instrument has effect, after the commencement of this item, as if:

(a) it had been made under subsection 172(1) of the

Radiocommunications Act 1992

; and

(b) the instrument had imposed a permanent ban on equipment of

that kind; and

paragraph (1)(c); and

(d) any requirement imposed by the

Radiocommunications Act

1992

or the

Legislation Act 2003

in relation to the making of

the instrument (including a requirement about the form of

words) had been satisfied.

50 Transitional and application

--protected names and

protected symbols

(1)

Despite the amendment of subsection 66(5) of the

Australian

Communications and Media Authority Act 2005

by this Schedule, that

subsection continues to apply, in relation to anything done in

accordance with repealed section 182 of the

Radiocommunications Act

1992

, as if that amendment had not been made.

(2)

Despite the amendment of subsection 417(6) of the

Telecommunications

Act 1997

by this Schedule, that subsection continues to apply, in

Schedule 4

Equipment etc.

Part 4

Application and transitional provisions

112

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

relation to anything done in accordance with repealed section 182 of the

Radiocommunications Act 1992

, as if that amendment had not been

made.

(3)

Subsections 165(1), (3) and (5) of the

Radiocommunications Act 1992

do not apply to a person who uses or applies a protected symbol for the

purposes of labelling equipment in accordance with repealed

section 182 of the

Radiocommunications Act 1992

51 Transitional

--recall of equipment

For the purposes of subsection 183(1), (2), (3) or (4) of the

Radiocommunications Act 1992

, it is immaterial whether the supply of

equipment occurred before, at or after the commencement of this item.

52 Application

--section 305 of the

Radiocommunications Act

1992

The amendment of section 305 of the

Radiocommunications Act 1992

made by this Schedule applies in relation to a certificate issued under

that section after the commencement of this item.

Accreditation etc.

Schedule 5

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

113

Schedule 5--Accreditation etc.

Part 1--Amendment of the Radiocommunications

Act 1992

Radiocommunications Act 1992

1 Section 5

Insert:

accreditation

means an accreditation given under section 263.

accreditation rules

means rules made under section 266.

2 Section 5 (definition of

conciliator

)

Repeal the definition, substitute:

conciliator

has the meaning given by section 202.

4 At the end of section 71

Add:

(3) A condition included in a spectrum licence under subsection (1)

may confer a power to make a decision of an administrative

character on the ACMA.

(4) A condition included in a spectrum licence under subsection (1)

may confer a power to make a decision of an administrative

character on a person who holds a specified kind of accreditation.

(5) The legislative rules may authorise a person who holds a specified

kind of accreditation to charge fees in relation to the exercise by

the person of a power conferred by a condition included in a

spectrum licence under subsection (1). A fee must not be such as to

amount to taxation.

4A At the end of Division 2 of Part 3.2

Add:

Schedule 5

Accreditation etc.

Part 1

Amendment of the Radiocommunications Act 1992

114

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

73A Conditions included in a spectrum licence--decision-making

powers

(1) A condition included in a spectrum licence under subsection 72(1)

or 73(1) may confer a power to make a decision of an

administrative character on the ACMA.

(2) A condition included in a spectrum licence under subsection 72(1)

or 73(1) may confer a power to make a decision of an

administrative character on a person who holds a specified kind of

accreditation.

(3) The legislative rules may authorise a person who holds a specified

kind of accreditation to charge fees in relation to the exercise by

the person of a power conferred by a condition included in a

spectrum licence under subsection 72(1) or 73(1). A fee must not

be such as to amount to taxation.

5 Subsection 100(4A)

Omit "a person accredited under section 263 to issue such certificates

for the purposes of this section", substitute "a person who holds an

accreditation of a kind specified in the legislative rules".

6 After subsection 100(4A)

Insert:

(4B) The legislative rules may authorise a person who holds a kind of

accreditation mentioned in subsection (4A) to charge fees in

relation to the issue of frequency assignment certificates under

subsection (4A). A fee must not be such as to amount to taxation.

7 Paragraph 107(1)(f)

Repeal the paragraph.

8 Subsection 107(2)

Omit "(1)(f) or (g)", substitute "(1)(g)".

9 Paragraph 108A(1)(e)

Repeal the paragraph.

Accreditation etc.

Schedule 5

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

115

10 After section 110

Insert:

110A Conditions determined by the ACMA

(1) The ACMA may, by legislative instrument, determine that each

apparatus licence is taken to include one or more specified

conditions.

(2) The ACMA may, by legislative instrument, determine that each

apparatus licence included in a specified class of apparatus licences

is taken to include one or more specified conditions.

(3) The ACMA's power under subsection (1) or (2) is not limited by

sections 107 to 109D.

(4) Conditions determined under this section are in addition to the

conditions in sections 107 to 109D.

(5) A determination under subsection (1) or (2) may confer a power to

make a decision of an administrative character on a person or the

ACMA.

(6) A determination under subsection (1) or (2) may confer a power to

make a decision of an administrative character on a person who

holds a specified kind of accreditation.

(7) A determination under subsection (1) or (2) may authorise a person

who holds a specified kind of accreditation to charge fees in

relation to the exercise by the person of a power conferred by the

determination. A fee must not be such as to amount to taxation.

11 After section 111

Insert:

111A Licence conditions may confer powers on the ACMA or a

person who holds an accreditation

Scope

(1) This section applies to:

Schedule 5

Accreditation etc.

Part 1

Amendment of the Radiocommunications Act 1992

116

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(a) a condition specified under paragraph 107(1)(g), 108A(1)(f),

109(1)(f), 109A(1)(k) or 109B(1)(t); or

(b) a condition imposed under paragraph 111(1)(a).

The ACMA

(2) A condition may confer a power to make a decision of an

administrative character on the ACMA.

Person who holds an accreditation

(3) A condition may confer a power to make a decision of an

administrative character on a person who holds a specified kind of

accreditation.

(4) The legislative rules may authorise a person who holds a specified

kind of accreditation to charge fees in relation to the exercise by

the person of a power conferred by a condition. A fee must not be

such as to amount to taxation.

12 Subsection 145(3)

Omit "a person accredited under section 263 to issue certificates for the

purposes of this section", substitute "a person who holds an

accreditation of a kind specified in the legislative rules".

13 After subsection 145(3)

Insert:

(3A) The legislative rules may authorise a person who holds a kind of

accreditation mentioned in subsection (3) to charge fees in relation

to the issue of certificates under subsection (3). A fee must not be

such as to amount to taxation.

14 Sections 202 to 204

Repeal the sections, substitute:

202 Conciliator

For the purposes of this Act,

conciliator

means a person who holds

an accreditation of a kind specified in the legislative rules.

Accreditation etc.

Schedule 5

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

117

15 Sections 263 and 264

Repeal the sections, substitute:

263 ACMA may accredit persons

(1) The ACMA may, by written notice, give a person an accreditation

of a particular kind.

(2) An accreditation is to be given in accordance with the accreditation

rules.

(3) An accreditation comes into force on the day specified in the notice

of accreditation.

Note:

A decision to refuse to give an accreditation is reviewable under

Part 5.6.

264 Conditions of accreditation

An accreditation of a particular kind is subject to:

(a) such conditions relating to accreditations of that kind as are

specified in the accreditation rules; and

(b) such conditions (if any) as the ACMA specifies in the

instrument of accreditation.

Note:

A decision to specify a condition in an instrument of accreditation is

reviewable under Part 5.6.

264A Withdrawal of accreditation

Scope

(1) This section applies if an accreditation given to a person is in force.

Withdrawal

(2) The ACMA may, by written notice given to the person, withdraw

the accreditation if the ACMA is satisfied that:

(a) the accreditation is no longer in accordance with the

accreditation rules, as in force at the time the notice is given

(whether or not the accreditation rules have been amended

since the accreditation was given); or

Schedule 5

Accreditation etc.

Part 1

Amendment of the Radiocommunications Act 1992

118

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(b) the person has contravened a condition of the accreditation.

Note:

A decision to withdraw an accreditation is reviewable under Part 5.6.

(3) A notice under subsection (2) must set out the reasons for

withdrawing the accreditation.

(4) In deciding whether to withdraw the accreditation, the ACMA

must comply with the accreditation rules.

16 Section 266

Repeal the section, substitute:

266 Accreditation rules

(1) The ACMA may, by legislative instrument, make rules

(

accreditation

rules

) prescribing matters required or permitted by

this Act to be prescribed by the accreditation rules.

(2) The accreditation rules may deal with the accreditation process.

(3) The accreditation rules may provide for procedures that must be

followed in relation to deciding whether to accredit persons.

(4) The accreditation rules may provide for procedures that must be

followed in relation to deciding whether to withdraw the

accreditation of persons.

(5) The accreditation rules may provide for:

(a) the kinds of accreditation; and

(b) in respect of each kind of accreditation--the qualifications

and other requirements required before a person can be given

that kind of accreditation.

(6) The accreditation rules may make provision in relation to a matter

by conferring a power on the ACMA.

Example: The power to approve a form.

17 After paragraph 285(v)

Insert:

(va) a decision under paragraph 264(b) to specify a condition in

an instrument of accreditation;

Accreditation etc.

Schedule 5

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

119

18 Paragraph 285(w)

Omit "264", substitute "264A".

19 After paragraph 285(w)

Insert:

(waa) a decision of the ACMA:

(i) made under the accreditation rules; and

(ii) declared by the accreditation rules to be a decision to

which this section applies;

20 Section 298A

Repeal the section, substitute:

298A Fees imposed by bodies or organisations

(1) The ACMA may, by notifiable instrument, determine that a

specified body or organisation approved by the ACMA as

mentioned in paragraph (b) of the definition of

approved

examination

in subsection 122(2) may charge fees for performing

its functions under this Act.

(2) Such a fee must not be such as to amount to taxation.

21 Paragraph 308(b)

Omit "264", substitute "264A".

Schedule 5

Accreditation etc.

Part 2

Application and transitional provisions

120

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Modernisation) Bill 2020

No. , 2020

Part 2--Application and transitional provisions

22 Definitions

In this Part:

transitional accreditation rules

means rules made under item 29.

23 Application

--frequency assignment certificates

The amendments of section 100 of the

Radiocommunications Act 1992

made by this Schedule apply in relation to a certificate issued after the

commencement of this item.

24 Transitional

--conditions of apparatus licences

Scope

(1)

This item applies to a determination if:

(a) the determination was in force immediately before the

commencement of this item; and

(b) the determination was made under paragraph 107(1)(f) of the

Radiocommunications Act 1992

Effect of determination

(2)

The determination has effect, after the commencement of this item, as

if:

(a) it had been made under subsection 110A(2) of the

Radiocommunications Act 1992

(as amended by this

Schedule); and

(b) it were expressed not to apply to:

(i) transmitter licences issued under section 101A or 102;

(ii) digital radio multiplex transmitter licences; and

Radiocommunications Act

1992

(as amended by this Schedule) in relation to the making

of the determination (including a requirement about the form

of words) had been satisfied.

Accreditation etc.

Schedule 5

Application and transitional provisions

Part 2

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

121

25 Transitional

--conditions of transmitter licences for

temporary community broadcasters

Scope

(1)

This item applies to a determination if:

(a) the determination was in force immediately before the

commencement of this item; and

(b) the determination was made under paragraph 108A(1)(e) of

the

Radiocommunications Act 1992

Effect of determination

(2)

The determination has effect, after the commencement of this item, as

if:

(a) it had been made under subsection 110A(2) of the

Radiocommunications Act 1992

(as amended by this

Schedule); and

(b) any requirement imposed by the

Radiocommunications Act

1992

(as amended by this Schedule) in relation to the making

of the determination (including a requirement about the form

of words) had been satisfied.

26 Transitional

--accreditation

Scope

(1)

This item applies to an accreditation if:

(a) the accreditation was in force immediately before the

commencement of this item; and

(b) the accreditation was given under subsection 263(1) of the

Radiocommunications Act 1992

; and

taken, for the purposes of this item, to correspond to an

accreditation of a specified kind that could be given under

subsection 263(1) of the

Radiocommunications Act 1992

(as

amended by this Schedule).

Effect of accreditation

(2)

The accreditation has effect, after the commencement of this item, as if:

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(a) it were an accreditation of that kind; and

(b) it had been given under subsection 263(1) of the

Radiocommunications Act 1992

(as amended by this

Schedule); and

Radiocommunications Act

1992

(as amended by this Schedule) in relation to the giving

of the accreditation (including a requirement about the form

of words) had been satisfied.

27 Transitional

--fees determination

Scope

(1)

This item applies to a determination if:

(a) the determination was in force immediately before the

commencement of this item; and

(b) the determination was made under subsection 298A(1) of the

Radiocommunications Act 1992

Effect of determination

(2)

Subject to subitem (3), the determination, so far as it relates to a body or

organisation approved by the ACMA as mentioned in paragraph (b) of

the definition of

approved examination

in subsection 122(2) of the

Radiocommunications Act 1992

, has effect, after the commencement of

this item, as if:

(a) it had been made under subsection 298A(1) of the

Radiocommunications Act 1992

(as amended by this

Schedule); and

(b) its operation was expressly confined to fees for performing a

function after the commencement of this item; and

Radiocommunications Act

1992

or the

Legislation Act 2003

in relation to the making of

the determination (including a requirement about the form of

words) had been satisfied.

(3)

The determination continues to apply, in relation to fees for performing

a function before the commencement of this item, as if section 298A of

the

Radiocommunications Act 1992

had not been repealed by this

Schedule.

Accreditation etc.

Schedule 5

Application and transitional provisions

Part 2

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

123

28 Transitional

--no compensation for withdrawal of

accreditation

Despite the amendment of section 308 of the

Radiocommunications Act

1992

by this Schedule, that section continues to apply, in relation to a

withdrawal that occurred before the commencement of this item, as if

that amendment had not been made.

29 Transitional

--accreditation rules

The Australian Communications and Media Authority may, by

legislative instrument, make rules (

transitional accreditation rules

)

prescribing matters required or permitted by this Part to be prescribed

by the transitional accreditation rules.

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Schedule 6--Compliance and enforcement

Part 1--Amendment of the Radiocommunications

Act 1992

Radiocommunications Act 1992

1 Section 5

Insert:

designated forfeiture officer

has the meaning given by section

283.

forfeiture notice

means a notice under section 274.

2 Section 5 (definition of

inspector

)

Omit "section 267", substitute "section 284".

3 Section 5

Insert:

Regulatory Powers Act

means the

Regulatory Powers (Standard

Provisions) Act 2014

transmitter access warrant

means a warrant issued under section

284KB.

4 Subsection 11(1)

Omit "section 6 of the

Crimes Act 1914

, or an ancillary offence (within

the meaning of the

Criminal Code

),", substitute "the

Crimes Act 1914

or the

Criminal Code

5 Subsection 11(1A)

Repeal the subsection.

6 Paragraph 11(2)(b)

Repeal the paragraph, substitute:

Compliance and enforcement

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125

(b) payment of the amount stated in an infringement notice given

under Part 5 of the Regulatory Powers Act, so far as it applies

to the provision mentioned in subsection 270(1) of this Act

that creates the offence.

7 Division 1 of Part 3.1 (at the end of the heading)

Add "

and civil penalties

8 Before subsection 46(1)

Insert:

Offence

9 At the end of section 46

Add:

Civil penalty

(3) 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

Civil penalty:

(a) if the radiocommunications device is a radiocommunications

transmitter--300 penalty units; or

(b) if the radiocommunications device is not a

radiocommunications transmitter--20 penalty units.

(4) Subsection (3) does not apply if the person has a reasonable

excuse.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see section 96 of the Regulatory Powers Act).

10 Before subsection 47(1)

Insert:

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Offence

11 At the end of section 47

Add:

Civil penalty

(3) Subject to section 49, a person must not have a

radiocommunications device in the person's possession for the

purpose of operating the device otherwise than as authorised by:

(a) a spectrum licence; or

(b) an apparatus licence; or

Civil penalty:

(a) if the radiocommunications device is a radiocommunications

transmitter--300 penalty units; or

(b) if the radiocommunications device is not a

radiocommunications transmitter--20 penalty units.

(4) Subsection (3) does not apply if the person has a reasonable

excuse.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see section 96 of the Regulatory Powers Act).

12 Subsection 49(2)

Omit "section 46 or 47", substitute "subsection 46(1) or 47(1)".

13 After subsection 49(2)

Insert:

(2A) In proceedings for a civil penalty order for a contravention of

subsection 46(3) or 47(3), the burden of proving any of the matters

referred to in subsection (1) of this section lies on the defendant.

14 Section 113

Repeal the section, substitute:

Compliance and enforcement

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Radiocommunications Legislation Amendment (Reform and

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127

113 Contravention of conditions

(1) If a person:

(a) is the holder of an apparatus licence; or

(b) has been authorised under section 114 in relation to an

apparatus licence;

the person must not contravene a condition of the licence.

Civil 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 this

subsection (see section 96 of the Regulatory Powers Act).

15 At the end of subsection 116(3)

Add:

Civil penalty:

30 penalty units.

16 At the end of subsection 116(4)

Add:

Civil penalty:

30 penalty units.

17 Subsection 117(1)

Omit "(1)".

18 Subsection 117(1) (penalty)

Repeal the penalty, substitute:

Civil penalty:

20 penalty units.

19 Subsection 117(2)

Repeal the subsection (including the note).

20 Subsection 118(1) (penalty)

Repeal the penalty, substitute:

Civil penalty:

20 penalty units.

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21 Subsection 118(1A)

Repeal the subsection.

22 Subsection 124(4)

Omit "fail to return the certificate to the ACMA, either by hand or by

certified mail, within 7 days after receiving notification of the

cancellation", substitute "falsely represent that the person holds the

certificate".

23 Subsection 124(4) (penalty)

Repeal the penalty, substitute:

Civil penalty:

20 penalty units.

24 Subsections 124(5) and (6)

Repeal the subsections.

25 Subsection 195(1) (penalty)

Repeal the penalty, substitute:

Civil penalty:

300 penalty units.

26 Subsection 196(2)

Omit "193, 194 or 195", substitute "193 or 194".

27 At the end of section 196

Add:

(3) In proceedings for a civil penalty order for a contravention of

subsection 195(1), the burden of proving any of the matters

referred to in subsection (1) of this section lies on the defendant.

28 Section 197

Repeal the section, substitute:

197 Causing interference etc.

A person must not engage in conduct that will result, or is likely to

result, in:

Compliance and enforcement

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129

(a) substantial interference; or

(b) substantial disruption; or

to radiocommunications:

(d) within Australia; or

(e) between a place in Australia and a place outside Australia.

Civil penalty:

500 penalty units.

29 Subsection 231(6)

Repeal the subsection, substitute:

(6) Part 5.5 deals with matters relating to the enforcement of this Act.

30 Subsection 231(9)

Repeal the subsection.

31 Part 5.5

Repeal the Part, substitute:

Part 5.5--Enforcement

Division 1--Introduction

267 Simplified outline of this Part

•

If a person has contravened, or is contravening, a civil penalty

provision of this Act, the ACMA may give the person a

remedial direction.

•

A civil penalty provision of this Act

is enforceable under

Part 4 of the Regulatory Powers Act.

•

Infringement notices may be given under Part 5 of the

Regulatory Powers Act for alleged contraventions of certain

provisions of this Act.

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•

The ACMA may accept an enforceable undertaking under

Part 6 of the Regulatory Powers Act that relates to a provision

of this Act.

•

Injunctions may be granted under Part 7 of the Regulatory

Powers Act in relation to contraventions of certain provisions

of this Act.

•

Forfeiture notices may be given for alleged contraventions of

certain provisions of this Act.

•

A provision is subject to monitoring under Part 2 of the

Regulatory Powers Act if it is:

(a)

an offence against Part 4.1 of this Act; or

(b)

a civil penalty provision of this Act; or

(c)

an offence against subsection 284J(8) of this Act.

•

Information given in compliance, or purported compliance,

with subsection 284J(8) or a provision of Part 4.1 is subject to

monitoring under Part 2 of the Regulatory Powers Act.

•

An offence against this Act, or a civil penalty provision of this

Act, is subject to investigation under Part 3 of the Regulatory

Powers Act.

•

Inspectors appointed under this Act have the following

additional powers:

(a)

the power to give directions to a holder of an apparatus

licence or a spectrum licence in relation to managing

interference with radiocommunications;

(b)

the power to enter premises to adjust transmitters in

emergencies;

(c)

the power to direct a person to operate a transmitter;

(d)

the power to require a person to produce an apparatus

licence, a spectrum licence, a third party authorisation, a

certificate or a permit;

(e)

the power to require a person to produce a copy of a

record of an authorisation;

Compliance and enforcement

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131

(f)

the power to require a person to produce a record the

retention of which is required by the equipment rules.

•

A court may order the forfeiture to the Commonwealth of

anything used, or otherwise involved, in:

(a)

the commission of an offence against this Act; or

(b)

a contravention of a civil penalty provision of this Act.

•

The ACMA may issue a public warning notice.

Note:

Regulatory Powers Act means the

Regulatory Powers (Standard

Provisions) Act 2014

(see section 5).

Division 2--Enforcement

268 Remedial directions--breach of civil penalty provision

Scope

(1) This section applies if a person has contravened, or is

contravening, a civil penalty provision of this Act.

Remedial direction

(2) The ACMA may give the person a written direction requiring the

person to take specified action directed towards ensuring that the

person does not contravene the provision, or is unlikely to

contravene the provision, in the future.

Note:

A decision to give a direction is reviewable under Part 5.6.

(3) The following are examples of the kinds of direction that may be

given to a person under subsection (2):

(a) a direction that the person implement effective administrative

systems for monitoring compliance with a civil penalty

provision of this Act;

(b) a direction that the person implement a system designed to

give the person's employees, agents and contractors a

reasonable knowledge and understanding of the requirements

of a civil penalty provision of this Act, in so far as those

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No. , 2020

requirements affect the employees, agents or contractors

concerned.

(4) A person must not contravene a direction under subsection (2).

Civil penalty:

50 penalty units.

269 Civil penalty provisions--enforcement

Enforceable civil penalty provision

(1) Each civil penalty provision of this Act is enforceable under Part 4

of the Regulatory Powers Act.

Note:

Part 4 of the Regulatory Powers Act allows a civil penalty provision to

be enforced by obtaining an order for a person to pay a pecuniary

penalty for the contravention of the provision.

Authorised applicant

(2) For the purposes of Part 4 of the Regulatory Powers Act, the

ACMA is an authorised applicant in relation to the civil penalty

provisions of this Act.

Relevant court

(3) For the purposes of Part 4 of the Regulatory Powers Act, each of

the following courts is a relevant court in relation to the civil

penalty provisions of this Act:

(a) the Federal Court;

(b) the Federal Circuit Court of Australia.

External Territories

(4) Part 4 of the Regulatory Powers Act, as it applies in relation to the

provisions mentioned in subsection (1), extends to every external

Territory.

Geographical application

(5) Sections 16, 17, 17A and 18 have effect as if a reference in those

sections to this Act included a reference to Part 4 of the Regulatory

Compliance and enforcement

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133

Powers Act, as it applies in relation to the provisions mentioned in

subsection (1) of this section.

Sudden or extraordinary emergency

(6) A person is not liable under Part 4 of the Regulatory Powers Act to

have a civil penalty order made against the person for a

contravention of a civil penalty provision of this Act if:

(a) the person carries out the conduct constituting the

contravention in response to circumstances of sudden or

extraordinary emergency; and

(b) the person believes on reasonable grounds that:

(i) circumstances of sudden or extraordinary emergency

exist; and

(ii) contravening the provision is the only reasonable way to

deal with the emergency; and

(iii) the conduct is a reasonable response to the emergency.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see section 96 of the Regulatory Powers Act).

270 Infringement notices

Provisions subject to an infringement notice

(1) The following provisions of this Act are subject to an infringement

notice under Part 5 of the Regulatory Powers Act:

(a) subsection 46(3);

(b) subsection 47(3);

(d) section 117;

(e) subsection 118(1);

(f) subsection 160(5);

(g) subsection 160(6);

(h) subsection 160(7);

(i) subsection 160(9);

(j) subsection 165(1);

(k) subsection 170(1);

(l) subsection 170(2);

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(m) subsection 170(3);

(n) subsection 188(2);

(o) subsection 195(1);

(p) section 197;

(q) subsection 284F(4);

(r) subsection 284S(4);

(s) subsection 300(4);

(t) subsection 300A(1);

(u) subsection 300A(3);

(v) subsection 300A(5);

(w) subsection 300B(2);

(x) section 300C.

Note:

Part 5 of the Regulatory Powers Act creates a framework for using

infringement notices in relation to provisions.

Infringement officer

(2) For the purposes of Part 5 of the Regulatory Powers Act, each of

the following:

(a) a member of the staff of the ACMA authorised, in writing, by

the ACMA for the purposes of this subsection;

(b) the Chair of the ACMA;

is an infringement officer in relation to the provisions mentioned in

subsection (1).

Relevant chief executive

(3) For the purposes of Part 5 of the Regulatory Powers Act,

the Chair

of the ACMA is the relevant chief executive in relation to the

provisions mentioned in subsection (1).

(4) The relevant chief executive may, in writing, delegate any or all of

the relevant chief executive's powers and functions under Part 5 of

the Regulatory Powers Act to a person who is:

(a) a member of the staff of the ACMA; and

(b) an SES employee or an acting SES employee.

Compliance and enforcement

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135

(5) A person exercising powers or performing functions under a

delegation under subsection (4) must comply with any directions of

the relevant chief executive.

Withdrawal of notice

(6) For the purposes of Part 5 of the Regulatory Powers Act, as it

applies to the provisions mentioned in subsection (1), if:

(a) an infringement notice has been given to a person under that

Part, as it applies to those provisions; and

(b) the relevant chief executive is deciding whether or not to

withdraw the infringement notice;

section 106 of that Act has effect as if it provided that, when so

deciding, the relevant chief executive may (in addition to the

matters set out in paragraph 106(3)(b) of that Act) take into

account whether:

forfeiture notice, to forfeit the thing to the Commonwealth;

and

(d) the forfeiture notice relates to a contravention that is

constituted by conduct that is substantially the same as the

conduct alleged to constitute the contravention in the

infringement notice.

Effect of payment of amount

(7) If:

(a) a person is given an infringement notice for an alleged

contravention of a civil penalty provision of this Act; and

(b) the person pays the amount stated in the notice before the end

of the period referred to in paragraph 104(1)(h) of the

Regulatory Powers Act; and

the person may not be prosecuted in a court for an offence that is

constituted by conduct that is the same, or substantially the same,

as the conduct alleged to constitute the contravention in the notice.

(8) Subsection (7) has effect in addition to section 107 of the

Regulatory Powers Act.

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External Territories

(9) Part 5 of the Regulatory Powers Act, as it applies in relation to the

provisions mentioned in subsection (1), extends to every external

Territory.

Geographical application

(10) Sections 16, 17, 17A and 18 have effect as if a reference in those

sections to this Act included a reference to Part 5 of the Regulatory

Powers Act, as it applies in relation to the provisions mentioned in

subsection (1) of this section.

271 Enforceable undertakings

Enforceable provisions

(1) The provisions of this Act are enforceable under Part 6 of the

Regulatory Powers Act.

Authorised person

(2) For the purposes of Part 6 of the Regulatory Powers Act, the

ACMA is an authorised person in relation to the provisions

mentioned in subsection (1).

Relevant court

(3) For the purposes of Part 6 of the Regulatory Powers Act, each of

the following courts is a relevant court in relation to the provisions

mentioned in subsection (1):

(a) the Federal Court;

(b) the Federal Circuit Court of Australia.

Publication of undertaking

(4) The following provisions have effect:

(a) the ACMA must publish an undertaking given in relation to a

provision mentioned in subsection (1) on the ACMA's

website;

(b) the legislative rules may provide that the ACMA must also

publish an undertaking given in relation to a provision

Compliance and enforcement

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137

mentioned in subsection (1) in accordance with the

legislative rules.

External Territories

(5) Part 6 of the Regulatory Powers Act, as it applies in relation to the

provisions mentioned in subsection (1), extends to every external

Territory.

Geographical application

(6) Sections 16, 17, 17A and 18 have effect as if a reference in those

sections to this Act included a reference to Part 6 of the Regulatory

Powers Act, as it applies in relation to the provisions mentioned in

subsection (1) of this section.

272 Injunctions

Enforceable provisions

(1) The following provisions of this Act are enforceable under Part 7

of the Regulatory Powers Act:

(a) subsection 46(3);

(b) subsection 47(3);

(d) section 117;

(e) subsection 160(5);

(f) subsection 160(6);

(g) subsection 160(7);

(h) subsection 160(9);

(i) subsection 165(1);

(j) subsection 170(1);

(k) subsection 170(2);

(l) subsection 170(3);

(m) subsection 176(1);

(n) subsection 176(2);

(o) subsection 176(3);

(p) subsection 176(4);

(q) subsection 186(2);

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(r) subsection 188(2);

(s) subsection 195(1);

(t) section 197;

(u) subsection 227(1);

(v) subsection 284S(4);

(w) subsection 300A(1);

(x) subsection 300A(3);

(y) subsection 300A(5);

(z) subsection 300B(2);

(za) section 300C.

Note:

Part 7 of the Regulatory Powers Act creates a framework for using

injunctions to enforce provisions.

Authorised person

(2) The ACMA is an authorised person in relation to the provisions

mentioned in subsection (1) for the purposes of Part 7 of the

Regulatory Powers Act.

Relevant court

(3) For the purposes of Part 7 of the Regulatory Powers Act, each of

the following courts is a relevant court in relation to the provisions

mentioned in subsection (1):

(a) the Federal Court;

(b) the Federal Circuit Court of Australia.

External Territories

(4) Part 7 of the Regulatory Powers Act, as it applies in relation to the

provisions mentioned in subsection (1), extends to every external

Territory.

Geographical application

(5) Sections 16, 17, 17A and 18 have effect as if a reference in those

sections to this Act included a reference to Part 7 of the Regulatory

Powers Act, as it applies in relation to the provisions mentioned in

subsection (1) of this section.

Compliance and enforcement

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139

Division 3--Forfeiture notices

273 Provisions subject to a forfeiture notice

The following provisions of this Act are subject to a forfeiture

notice under this Division:

(a) subsection 46(3);

(b) subsection 47(3);

(d) subsection 160(6);

(e) subsection 160(7);

(f) subsection 165(1);

(g) subsection 170(1);

(h) subsection 170(2);

(i) subsection 170(3);

(j) subsection 176(1);

(k) subsection 176(2);

(l) subsection 176(3);

(m) subsection 176(4);

(n) subsection 195(1);

(o) section 197.

274 When a forfeiture notice may be given

(1) If a designated forfeiture officer believes on reasonable grounds

that:

(a) a person has contravened a provision subject to a forfeiture

notice under this Division; and

(b) a thing was used, or otherwise involved, in the contravention

of the provision;

the designated forfeiture officer may give to the person a forfeiture

notice for the alleged contravention.

(2) The forfeiture notice must be expressed to relate to the thing.

(3) The forfeiture notice must be given within 12 months after the day

on which the contravention is alleged to have taken place.

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(4) A designated forfeiture officer may give a person a single

forfeiture notice relating to multiple alleged contraventions

(whether of the same provision or different provisions).

(5) A person must not be given:

(a) a forfeiture notice; and

(b) an infringement notice under Part 5 of the Regulatory Powers

Act;

that relate to the same alleged contravention.

275 Matters to be included in a forfeiture notice

(1) A forfeiture notice must:

(a) be identified by a unique number; and

(b) state the day on which the notice is given; and

(d) state:

(i) the name and contact details of the person who gave the

notice; and

(ii) that the person is a designated forfeiture officer; and

(e) give brief details of the alleged contravention or

contraventions to which the notice relates, including:

(i) the provision or the provisions that were allegedly

contravened; and

(ii) the maximum penalty that a court could impose for each

contravention, if the provision or those provisions were

contravened; and

(iii) the time (if known) and day of, and the place of, each

alleged contravention; and

(f) describe the thing to which the notice relates; and

(g) state that, if, within 28 days after the day the notice is given,

the owner of the thing

agrees with the ACMA (on behalf of

the Commonwealth) to forfeit the thing to the

Commonwealth, then (unless the notice is withdrawn)

proceedings seeking a civil penalty order or orders will not

be brought in relation to the alleged contravention or

contraventions; and

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(h) state that agreeing to forfeit the thing to the Commonwealth

is not an admission of guilt or liability; and

(i) state that the person to whom the notice is given may apply

to the ACMA to have the period specified in the notice

extended; and

(j) state that the owner of the thing may choose not to agree to

forfeit the thing to the Commonwealth and, if the owner so

chooses, proceedings seeking a civil penalty order or orders

may be brought in relation to the alleged contravention or

contraventions; and

(k) set out how the notice can be withdrawn; and

(l) state that if the notice is withdrawn, proceedings seeking a

civil penalty order or orders may be brought in relation to the

alleged contravention or contraventions; and

(m) state that the person to whom the notice is given may make

written representations to the ACMA seeking the withdrawal

of the notice.

(2) To avoid doubt, the person to whom a forfeiture notice is given

may be the owner of the thing to which the notice relates.

(3) If:

(a) a forfeiture notice relating to a thing is given to a person; and

(b) the owner of the thing agrees, in accordance with the notice,

to forfeit the thing to the Commonwealth;

the owner is not entitled to revoke the agreement.

276 Extension of time to agree to forfeit a thing to the

Commonwealth

(1) A person to whom a forfeiture notice has been given may apply to

the ACMA for an extension of the period referred to in paragraph

275(1)(g).

(2) If the application is made before the end of that period, the ACMA

may, in writing, extend that period. The ACMA may do so before

or after the end of that period.

(3) If the ACMA extends that period, a reference in this Division, or in

a notice or other instrument under this Division, to the period

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referred to in paragraph 275(1)(g) is taken to be a reference to that

period so extended.

(4) If the ACMA does not extend that period, a reference in this

Division, or in a notice or other instrument under this Division, to

the period referred to in paragraph 275(1)(g) is taken to be a

reference to the period that ends on the later of the following days:

(a) the day that is the last day of the period referred to in

paragraph 275(1)(g);

(b) the day that is 7 days after the day the person was given

notice of the ACMA's decision not to extend.

(5) The ACMA may extend that period more than once under

subsection (2).

277 Withdrawal of a forfeiture notice

Representations seeking withdrawal of notice

(1) A person to whom a forfeiture notice has been given may make

written representations to the ACMA seeking the withdrawal of the

notice.

Withdrawal of notice

(2) The ACMA may withdraw a forfeiture notice given to a person, so

long as the thing to which the notice relates has not been forfeited

to the Commonwealth.

Note:

For forfeiture, see section 280.

(3) For the purposes of subsection (2), it is immaterial whether the

person has made representations seeking the withdrawal of the

notice.

(4) In deciding whether or not to withdraw a forfeiture notice (the

relevant forfeiture notice

), the ACMA:

(a) must take into account any written representations seeking

the withdrawal that were given by the person to the ACMA;

and

(b) may take into account the following:

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(i) whether a court has previously imposed a penalty on the

person for a contravention of a provision subject to a

forfeiture notice under this Division;

(ii) the circumstances of the alleged contravention or

contraventions;

(iii) whether the person has paid an amount, stated in an

infringement notice under Part 5 of the Regulatory

Powers Act, for a contravention that is constituted by

conduct that is substantially the same as the conduct

alleged to constitute a contravention in the relevant

forfeiture notice;

(iv) whether the owner of the thing has agreed to forfeit

another thing to the Commonwealth, in accordance with

another forfeiture notice, for a contravention that is

constituted by conduct that is the same, or substantially

the same, as the conduct alleged to constitute a

contravention in the relevant forfeiture notice;

(v) any other matter the ACMA considers relevant.

Notice of withdrawal

(5) Notice of the withdrawal of a forfeiture notice must be given to the

person to whom the forfeiture notice was given. The withdrawal

notice must state:

(a) the person's name and address; and

(b) the day the forfeiture notice was given; and

(d) that the forfeiture notice is withdrawn; and

(e) that proceedings seeking a civil penalty order or orders may

be brought in relation to the alleged contravention or

contraventions.

278 Effect of agreeing to forfeit a thing to the Commonwealth

If:

(a) a person is given a forfeiture notice for:

(i) an alleged contravention; or

(ii) multiple alleged contraventions; and

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(b) the owner of the thing to which the notice relates agrees, in

accordance with the notice, to forfeit the thing to the

Commonwealth; and

then:

(d) any liability of the person for the alleged contravention or

contraventions is discharged; and

(e) proceedings seeking a civil penalty order or orders may not

be brought in relation to the alleged contravention or

contraventions; and

(f) the person is not regarded as having admitted guilt or liability

for the alleged contravention or contraventions; and

(g) the person may not be prosecuted in a court for an offence

that is constituted by conduct that is the same, or

substantially the same, as the conduct alleged to constitute a

contravention in the notice.

279 The ACMA may take possession of a thing

(1) If:

(a) a forfeiture notice relating to a thing is given to a person; and

(b) the owner of the thing agrees, in accordance with the notice,

to forfeit the thing to the Commonwealth; and

then:

(d) the ACMA may take possession of the thing; and

(e) if the ACMA does so--the ACMA must give the owner a

receipt for the thing taken into possession.

(2) If:

(a) the ACMA withdraws a forfeiture notice relating to a thing;

and

(b) the owner of the thing has already agreed, in accordance with

the notice, to forfeit the thing to the Commonwealth; and

subsection (1);

then:

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(d) the ACMA must take all reasonable steps to return the thing

to the owner; and

(e) the agreement ceases to have effect.

(3) If:

(a) a forfeiture notice relating to a thing is given to a person; and

(b) the owner of the thing does not have possession of the thing

when the notice is given; and

to forfeit the thing to the Commonwealth; and

(d) the owner of the thing takes possession of the thing so as to

enable the ACMA to take possession of the thing under

subsection (1); and

(e) at the time when the owner takes possession of the thing, the

notice had not been withdrawn;

sections 47 and 160 and subsections 175(4) and 176(4) do not

apply to the owner's possession of the thing until whichever of the

following events happens first:

(f) the ACMA takes possession of the thing under

subsection (1);

(g) the notice is withdrawn.

(4) If:

(a) the ACMA has purported to take possession of a thing under

subsection (1); and

(b) the ACMA was not entitled to take possession of the thing

under that subsection;

the ACMA must take all reasonable steps to return the thing to the

owner of the thing.

280 Forfeiture of a thing to the Commonwealth

(1) If:

(a) a forfeiture notice relating to a thing is given to a person; and

(b) the owner of the thing agrees, in accordance with the notice,

to forfeit the thing to the Commonwealth; and

(d) the ACMA has taken possession of the thing under

subsection 279(1); and

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(e) at least 90 days have passed since the ACMA gave the owner

a receipt under paragraph 279(1)(e) for the thing;

the ACMA may declare, in writing, that the thing is forfeited to the

Commonwealth.

(2) The ACMA must give a copy of the declaration to the owner of the

thing.

Deemed forfeiture

(3) If:

(a) a forfeiture notice relating to a thing is given to a person; and

(b) the owner of the thing agrees, in accordance with the notice,

to forfeit the thing to the Commonwealth; and

subsection 279(1); and

(d) the ACMA has not, within the 120-day period beginning at

the start of the day when the ACMA gave the owner a receipt

under paragraph 279(1)(e) for the thing, made a declaration

under subsection (1) of this section that the thing is forfeited

to the Commonwealth; and

(e) the notice has not been withdrawn before the end of the

120-day period;

then, at the end of the 120-day period, the thing is forfeited to the

Commonwealth.

281 Forfeited things may be sold, destroyed or otherwise disposed of

A thing forfeited under section 280:

(a) may be sold, destroyed or otherwise disposed of in

accordance with the directions of the ACMA; and

(b) pending such directions, must be kept in such custody as the

ACMA directs.

282 Effect of this Division

This Division does not:

(a) require a forfeiture notice to be given to a person for one or

more alleged contraventions of one or more provisions

subject to a forfeiture notice under this Division; or

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(b) affect the liability of a person for one or more alleged

contraventions of one or more provisions subject to a

forfeiture notice under this Division if:

(i) the person does not comply with a forfeiture notice

given to the person for those contraventions; or

(ii) a forfeiture notice is not given to the person for those

contraventions; or

(iii) a forfeiture notice is given to the person for those

contraventions and is subsequently withdrawn; or

for one or more alleged contraventions of one or more

provisions subject to a forfeiture notice under this Division;

(d) limit a court's discretion to order the forfeiture to the

Commonwealth of a thing used, or otherwise involved, in the

contravention of a provision subject to a forfeiture notice

under this Division.

283 Designated forfeiture officer

A person is a

designated forfeiture officer

for the purposes of this

Act if the person is:

(a) a member of the staff of the ACMA authorised, in writing, by

the ACMA for the purposes of this section; or

(b) the Chair of the ACMA.

Division 4--Inspectors

284 Inspectors

(1) A person is an

inspector

for the purposes of this Act if the person

is:

(a) a Commonwealth officer appointed by the ACMA, by written

instrument, to be an inspector for the purposes of this Act; or

(b) a Commonwealth officer included in a class of

Commonwealth officers appointed by the ACMA, by

notifiable instrument, to be inspectors for the purposes of this

Act; or

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instrument, to be an inspector for the purposes of this Act; or

(d) an eligible State officer included in a class of eligible State

officers appointed by the ACMA, by notifiable instrument, to

be inspectors for the purposes of this Act; or

(e) a member (other than a special member) of the Australian

Federal Police.

(2) Subsection (1) has effect subject to subsection (3).

(3) An instrument under paragraph (1)(a), (b), (c) or (d) may specify

provisions of this Act or the Regulatory Powers Act in relation to

which appointments made by the instrument are to apply, and any

such limitation has effect accordingly.

Eligible State officer

(4) For the purposes of this section,

eligible State officer

means a

person who, whether on a full-time or part-time basis, and whether

in a permanent capacity or otherwise:

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

authority of an eligible State; or

(b) holds or performs the duties of any office or position

established by or under a law of an eligible State;

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

Eligible State

(5) A State may, by written notice given to the ACMA, consent to be

treated as an eligible State for the purposes of this section.

(6) A notice under subsection (5) may be given on behalf of a State by

a Minister of the State.

(7) If a State consents under subsection (5) to be treated as an eligible

State for the purposes of this section, the ACMA must, by

notifiable instrument, declare that the State is an

eligible State

for

the purposes of this section.

State

(8) For the purposes of this section,

State

includes:

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(a) the Australian Capital Territory; and

(b) the Northern Territory.

Division 5--Monitoring and investigation powers

284A Monitoring powers

Provisions subject to monitoring

(1) A provision is subject to monitoring under Part 2 of the Regulatory

Powers Act if it is:

(a) an offence against a provision of Part 4.1 of this Act; or

(b) a civil penalty provision of Part 4.1 of this Act; or

Note:

Part 2 of the Regulatory Powers Act creates a framework for

monitoring whether the provisions have been complied with. It

includes powers of entry and inspection.

Information subject to monitoring

(2) Information given in compliance or purported compliance with:

(a) a provision of Part 4.1; or

(b) subsection 284J(8);

is subject to monitoring under Part 2 of the Regulatory Powers Act.

Note:

Part 2 of the Regulatory Powers Act creates a framework for

monitoring whether the information is correct. It includes powers of

entry and inspection.

Authorised applicant

(3) For the purposes of Part 2 of the Regulatory Powers Act, an

inspector who:

(a) is covered by paragraph 284(1)(a), (b), (c) or (d); and

(b) is not a member of the police force of a State or Territory;

is an authorised applicant in relation to the provisions mentioned in

subsection (1) of this section and information mentioned in

subsection (2) of this section.

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Authorised person

(4) For the purposes of Part 2 of the Regulatory Powers Act, an

inspector who:

(a) is covered by paragraph 284(1)(a), (b), (c) or (d); and

(b) is not a member of the police force of a State or Territory;

is an authorised person in relation to the provisions mentioned in

subsection (1) of this section and information mentioned in

subsection (2) of this section.

Issuing officer

(5) For the purposes of Part 2 of the Regulatory Powers Act, each of

the following persons is an issuing officer in relation to the

provisions mentioned in subsection (1) and information mentioned

in subsection (2):

(a) if a Judge of the Federal Court has consented to act as an

issuing officer for the purposes of this Act and that consent is

in force--the Judge;

(b) if a Judge of the Federal Circuit Court of Australia has

consented to act as an issuing officer for the purposes of this

Act and that consent is in force--the Judge;

Relevant chief executive

(6) For the purposes of Part 2 of the Regulatory Powers Act, the Chair

of the ACMA

is the relevant chief executive in relation to the

provisions mentioned in subsection (1) and information mentioned

in subsection (2).

(7) The relevant chief executive may, in writing, delegate the powers

and functions mentioned in subsection (8) to a person who is:

(a) a member of the staff of the ACMA; and

(b) an SES employee or an acting SES employee.

(8) The powers and functions that may be delegated are:

(a) powers under Part 2 of the Regulatory Powers Act in relation

to the provisions mentioned in subsection (1) and information

mentioned in subsection (2); and

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(b) powers and functions under the Regulatory Powers Act that

are incidental to a power mentioned in paragraph (a).

(9) A person exercising powers or performing functions under a

delegation under subsection (7) must comply with any directions of

the relevant chief executive.

Relevant court

(10) For the purposes of Part 2 of the Regulatory Powers Act, each of

the following courts is a relevant court

in relation to the provisions

mentioned in subsection (1) and information mentioned in

subsection (2):

(a) the Federal Court;

(b) the Federal Circuit Court of Australia.

Premises

(11) For the purposes of Part 2 of the Regulatory Powers Act, as it

applies in relation to the provisions mentioned in subsection (1)

and information mentioned in subsection (2), each of the following

is taken to be premises:

(a) a vessel;

(b) an aircraft;

(12) An authorised person must not enter premises under Part 2 of the

Regulatory Powers Act, as it applies in relation to the provisions

mentioned in subsection (1) and information mentioned in

subsection (2), if the premises are used solely or primarily as a

residence.

Person assisting

(13) An authorised person may be assisted by other persons in

exercising powers, or performing functions or duties, under Part 2

of the Regulatory Powers Act in relation to the provisions

mentioned in subsection (1) and information mentioned in

subsection (2).

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Use of force in executing a warrant

(14) In executing a monitoring warrant:

(a) an authorised person may use such force against things as is

necessary and reasonable in the circumstances; and

(b) a person assisting the authorised person may use such force

against things as is necessary and reasonable in the

circumstances.

External Territories

(15) Part 2 of the Regulatory Powers Act, as it applies in relation to

the

provisions mentioned in subsection (1) and information mentioned

in subsection (2), extends to every external Territory

Geographical application

(16) Sections 16, 17, 17A and 18 have effect as if a reference in those

sections to this Act included a reference to Part 2 of the Regulatory

Powers Act, as it applies in relation to the provisions mentioned in

subsection (1) of this section and information mentioned in

subsection (2) of this section.

284B Investigation powers--general

Provisions subject to investigation

(1) A provision is subject to investigation under Part 3 of the

Regulatory Powers Act if it is:

(a) an offence provision of this Act; or

(b) a civil penalty provision of this Act.

Note:

Offence against this Act

has an extended meaning

(see section 11).

Authorised applicant

(2) For the purposes of Part 3 of the Regulatory Powers Act, an

inspector is an authorised applicant in relation to evidential

material that relates to a provision mentioned in subsection (1).

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Authorised person

(3) For the purposes of Part 3 of the Regulatory Powers Act, an

inspector is an authorised person in relation to evidential material

that relates to a provision mentioned in subsection (1).

Issuing officer

(4) For the purposes of Part 3 of the Regulatory Powers Act, each of

the following persons is an issuing officer in relation to evidential

material that relates to a provision mentioned in subsection (1):

(a) if a Judge of the Federal Court has consented to act as an

issuing officer for the purposes of this Act and that consent is

in force--the Judge;

(b) if a Judge of the Federal Circuit Court of Australia has

consented to act as an issuing officer for the purposes of this

Act and that consent is in force--the Judge;

Relevant chief executive

(5) For the purposes of Part 3 of the Regulatory Powers Act, the Chair

of the ACMA is the relevant chief executive in relation to

evidential material that relates to a provision mentioned in

subsection (1).

(6) The relevant chief executive may, in writing, delegate the powers

and functions mentioned in subsection (7) to a person who is:

(a) a member of the staff of the ACMA; and

(b) an SES employee or an acting SES employee.

(7) The powers and functions that may be delegated are:

(a) powers under Part 3 of the Regulatory Powers Act in relation

to evidential material that relates to a provision mentioned in

subsection (1); and

(b) powers and functions under the Regulatory Powers Act that

are incidental to a power mentioned in paragraph (a).

(8) A person exercising powers or performing functions under a

delegation under subsection (6) must comply with any directions of

the relevant chief executive.

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Relevant court

(9) For the purposes of Part 3 of the Regulatory Powers Act, each of

the following courts is a relevant court

in relation to evidential

material that relates to a provision mentioned in subsection (1):

(a) the Federal Court;

(b) the Federal Circuit Court of Australia.

Premises

(10) For the purposes of Part 3 of the Regulatory Powers Act, as it

applies in relation to a provision mentioned in subsection (1), each

of the following is taken to be premises:

(a) a vessel;

(b) an aircraft;

Person assisting

(11) An authorised person may be assisted by other persons in

exercising powers, or performing functions or duties, under Part 3

of the Regulatory Powers Act in relation to evidential material that

relates to a provision mentioned in subsection (1).

Disposal

(12) Part 3 of the Regulatory Powers Act, as it applies in relation to a

provision mentioned in subsection (1), has effect as if a reference

in section 68 of that Act to the disposal of a thing included a

reference to the disposal of a thing by way of destruction.

Use of force in executing a warrant

(13) In executing an investigation warrant:

(a) an authorised person may use such force against things as is

necessary and reasonable in the circumstances; and

(b) a person assisting the authorised person may use such force

against things as is necessary and reasonable in the

circumstances.

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External Territories

(14) Part 3 of the Regulatory Powers Act, as it applies in relation to the

provisions mentioned in subsection (1), extends to every external

Territory.

Geographical application

(15) Sections 16, 17, 17A and 18 have effect as if a reference in those

sections to this Act included a reference to Part 3 of the Regulatory

Powers Act, as it applies in relation to the provisions mentioned in

subsection (1) of this section.

284C Identity card

(1) Part 3 of the Regulatory Powers Act, as it applies in relation to the

provisions mentioned in subsection 284B(1) of this Act, has effect

as if a reference in paragraphs 55(6)(b) and 56(1)(b) of the

Regulatory Powers Act to an identity card, when used in relation to

an authorised person who is:

(a) a member of the Australian Federal Police; or

(b) a member of the police force of an eligible State (within the

meaning of section 284 of this Act);

were a reference to written evidence of the fact that the authorised

person is such a member.

(2) Section 76 of the Regulatory Powers Act, so far as it applies in

relation to a provision mentioned in subsection 284B(1) of this

Act, does not apply to an authorised person who is:

(a) a member of the Australian Federal Police; or

(b) a member of the police force of an eligible State (within the

meaning of section 284 of this Act).

284D Retention of thing seized etc.

(1) Section 66 of the Regulatory Powers Act, as it applies in relation to

a provision mentioned in subsection 284B(1) of this Act, has effect

subject to subsections (2), (3) and (4) of this section.

(2) If:

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(a) a thing is seized under the Regulatory Powers Act, as it

applies in relation to a provision mentioned in subsection

284B(1) of this Act; and

(b) proceedings for an offence against this Act are instituted

within the period of 60 days after the seizure; and

alleged commission of the offence;

the thing may be retained until the proceedings (and any appeal

from those proceedings) have been finalised.

Note:

Offence against this Act

has an extended meaning

(see section 11).

(3) If:

(a) a thing is seized under the Regulatory Powers Act, as it

applies in relation to a provision mentioned in subsection

284B(1) of this Act; and

(b) proceedings under section 82 of the Regulatory Powers Act

in relation to a contravention of a civil penalty provision of

this Act are instituted within the period of 60 days after the

seizure; and

alleged contravention of the civil penalty provision;

the thing may be retained until the proceedings (and any appeal

from those proceedings) have been finalised.

(4) If:

(a) a thing is seized under the Regulatory Powers Act, as it

applies in relation to a provision mentioned in subsection

284B(1) of this Act; and

(b) proceedings under subsection 284L(3) of this Act in relation

to a contravention of a civil penalty provision of this Act are

instituted within the period of 60 days after the seizure; and

alleged contravention of the civil penalty provision;

the thing may be retained until the proceedings (and any appeal

from those proceedings) have been finalised.

(5) The ACMA may, by written instrument, authorise a thing seized

under the Regulatory Powers Act, as it applies in relation to a

provision mentioned in subsection 284B(1) of this Act, to be

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released to the owner, or to the person from whom it was seized,

either:

(a) unconditionally; or

(b) on such conditions as the ACMA thinks fit, including

conditions as to giving security for payment of its value if it

is forfeited under section 284L of this Act.

284E Securing evidential material

(1) If:

(a) an authorised person (within the meaning of Part 3 of the

Regulatory Powers Act as it applies in relation to a provision

mentioned in subsection 284B(1) of this Act) enters premises

under that Part as it applies in relation to such a provision;

and

(b) the occupier of the premises has consented to the authorised

person entering the premises; and

powers on the premises; and

(d) the authorised person believes on reasonable grounds that the

thing is evidential material (within the meaning of Part 3 of

the Regulatory Powers Act as it applies in relation to a

provision mentioned in subsection 284B(1) of this Act);

the thing may be secured, for a period not exceeding 24 hours, by

locking it up, placing a guard or any other means.

Extensions

(2) The authorised person may apply to an issuing officer (within the

meaning of Part 3 of the Regulatory Powers Act as it applies in

relation to a provision mentioned in subsection 284B(1) of this

Act) for an extension of the 24-hour period if the authorised person

believes on reasonable grounds that the thing needs to be secured

for longer than that period.

(3) Before making the application, the authorised person must give

notice to the occupier of the premises, or another person who

apparently represents the occupier, of the authorised person's

intention to apply for an extension. The occupier or other person is

entitled to be heard in relation to that application.

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(4) The 24-hour period may be extended more than once.

Note:

For the process by which an issuing officer may extend the period, see

section 74 of the Regulatory Powers Act.

(5) Section 74 of the Regulatory Powers Act, as it applies in relation to

a provision mentioned in subsection 284B(1) of this Act, has effect

as if a reference in that section to an application under

subsection 51(5) of that Act included a reference to an application

under subsection (2) of this section.

284F Directions to licensees--managing interference with

radiocommunications

(1) An inspector may give a written direction to the holder of an

apparatus licence or a spectrum licence in relation to either or both

of the following:

(a) the installation, maintenance or operation of a

radiocommunications device that is, or is to be, operated

under the licence;

(b) anything that is, or is to be, installed or used in connection

with a radiocommunications device that is, or is to be,

operated under the licence;

if the direction is for the purpose of avoiding, minimising or

reducing interference with radiocommunications.

(2) A direction given under this section to the holder of an apparatus

licence applies to the holder of the licence, and may also be

expressed to apply to:

(a) all persons authorised under section 114 in relation to the

licence; or

(b) a specified class of persons authorised under section 114 in

relation to the licence; or

in relation to

the licence.

(3) A direction given under this section to the holder of a spectrum

licence applies to the holder of the licence, and may also be

expressed to apply to:

(a) all persons authorised under section 68 in relation to the

licence; or

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(b) a specified class of persons authorised under section 68 in

relation to the licence; or

the licence.

(4) A person who is:

(a) the holder of an apparatus licence; or

(b) authorised under section 114 in relation to an apparatus

licence; or

(d) authorised under section 68 in relation to a spectrum licence;

must comply with a direction under this section.

Civil penalty:

30 penalty units.

(5) A direction given under this section is not a legislative instrument.

284H Powers of inspectors to require operation of transmitters

(1) If an inspector believes on reasonable grounds that a transmitter

has been, is being, or may be, operated so as to cause interference

with radiocommunications, the inspector may, for the purpose of

investigating:

(a) interference with radiocommunications; or

(b) risk of interference with radiocommunications;

direct a person to operate the transmitter.

(2) An inspector must not direct that a transmitter be operated if that

operation is likely to:

(a) endanger the safety of a person; or

(b) cause damage to property.

(3) The operation of a transmitter in accordance with a direction does

not give rise to:

(a) an offence against this Act; or

(b) a contravention of a civil penalty provision of this Act.

Note:

Offence against this Act

has an extended meaning

(see section 11).

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Offence

(4) A person commits an offence if:

(a) the person is subject to a direction under subsection (1); and

(b) the person engages in conduct; and

Penalty: 30 penalty units.

284J General powers of inspectors

(1) If an inspector suspects on reasonable grounds that a person has

done an act in respect of which the person is required to hold:

(a) an apparatus licence; or

(b) an authorisation under section 114; or

(d) an authorisation under section 68; or

(e) a certificate of proficiency; or

(f) a permit;

the inspector may, by written notice given to the person, require

the person to:

(g) produce:

(i) the licence, authorisation, certificate or permit; or

(ii) evidence of its existence and contents; and

(h) do so within the period, and in the manner, specified in the

notice.

(2) If an inspector suspects on reasonable grounds that the holder of an

apparatus licence has given an authorisation under section 114, the

inspector may, by written notice given to the holder, require the

holder to:

(a) produce a copy of a record of that authorisation; and

(b) do so within the period, and in the manner, specified in the

notice.

(3) If an inspector suspects on reasonable grounds that the holder of a

spectrum licence has given an authorisation under section 68, the

inspector may, by written notice given to the holder, require the

holder to:

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(a) produce a copy of a record of that authorisation; and

(b) do so within the period, and in the manner, specified in the

notice.

(4) If an inspector suspects on reasonable grounds that a person is

required by the equipment rules to retain a record, the inspector

may, by written notice given to the person, require the person to:

(a) produce the record; and

(b) do so within the period, and in the manner, specified in the

notice.

(5) An inspector may, by written notice given to a person, require the

person to:

(a) produce evidence of having applied a label to a transmitter in

accordance with an obligation imposed on the person under

section 300; and

(b) do so within the period, and in the manner, specified in the

notice.

(6) A period specified under subsection (1), (2), (3), (4) or (5) must not

be shorter than 14 days.

Offences

(7) A person commits an offence if:

(a) the person is subject to:

(i) a requirement under subsection (1) (other than a

requirement that relates to a permit); or

(ii) a requirement under subsection (2), (3) or (5); and

(b) the person engages in conduct; and

Penalty: 30 penalty units.

(8) A person commits an offence if:

(a) the person is subject to:

(i) a requirement under subsection (1) that relates to a

permit; or

(ii) a requirement under subsection (4); and

(b) the person engages in conduct; and

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Penalty: 30 penalty units.

284K Self-incrimination etc.

(1) An individual is not excused from producing a document under

section 284J on the ground that the production of the document

might tend to incriminate the individual in relation to an offence.

Note:

A body corporate is not entitled to claim the privilege against

self-incrimination.

(2) However:

(a) the document produced; or

(b) producing the document; or

indirect consequence of producing the document;

is not admissible in evidence against the individual:

(d) in civil proceedings for the recovery of a penalty; or

(e) in criminal proceedings (other than proceedings for an

offence against section 137.1 or 137.2 of the

Criminal Code

that relates to section 284J of this Act).

(3) If, at general law, an individual would otherwise be able to claim

the privilege against self-exposure to a penalty (other than a

penalty for an offence) in relation to producing a document under

section 284J, the individual is not excused from producing a

document under that section on that ground.

Note:

A body corporate is not entitled to claim the privilege against

self-exposure to a penalty.

Compliance and enforcement

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Division 6--Power of inspectors to enter premises and

adjust transmitters in emergencies

Subdivision A--Powers of inspectors

284KA Power of inspectors to enter premises and adjust

transmitters in emergencies

Interference with radiocommunications that are essential to the

safety of human life

(1) If an inspector believes on reasonable grounds that:

(a) a transmitter is operating on any land, or on or in any

premises, vessel, aircraft, space object or vehicle; and

(b) the land, premises, vessel, aircraft, space object or vehicle is

or are unoccupied; and

radiocommunications that are essential to the safety of

human life;

the inspector may:

(d) enter the land, premises, vessel, aircraft, space object or

vehicle, if the entry is made in circumstances of such

seriousness and urgency as to require and justify entry to

prevent the consequence set out in paragraph (c); and

(e) take such action as the inspector considers necessary to cause

the transmitter to:

(i) cease operating; or

(ii) operate in such a way as to no longer give rise to the

consequence set out in paragraph (c).

(2) In exercising a power conferred by paragraph (1)(e) in relation to a

transmitter, an inspector must try to ensure that any disruption

caused to the performance of the transmitter is no greater than is

necessary to prevent the consequence set out in paragraph (1)(c).

Substantial loss or damage

(3) If an inspector believes on reasonable grounds that:

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(a) a transmitter is operating on any land, or on or in any

premises, vessel, aircraft, space object or vehicle; and

(b) the land, premises, vessel, aircraft, space object or vehicle is

or are unoccupied; and

damage;

the inspector may:

(d) enter the land, premises, vessel, aircraft, space object or

vehicle, if the entry is made in circumstances of such

seriousness and urgency as to require and justify entry to

prevent the consequence set out in paragraph (c); and

(e) take such action as the inspector considers necessary to cause

the transmitter to:

(i) cease operating; or

(ii) operate in such a way as to no longer give rise to the

consequence set out in paragraph (c).

(4) However, an inspector is not authorised to enter the land, premises,

vessel, aircraft, space object or vehicle under subsection (3) unless

the entry is made under a transmitter access warrant.

(5) In exercising a power conferred by paragraph (3)(e) in relation to a

transmitter, an inspector must try to ensure that any disruption

caused to the performance of the transmitter is no greater than is

necessary to prevent the consequence set out in paragraph (3)(c).

Notification of the owner of the transmitter

(6) If an inspector has, under a power conferred by this section:

(a) entered any land, premises, vessel, aircraft, space object or

vehicle; and

(b) taken any action in respect of a transmitter;

the inspector must, as soon as practicable, take all reasonable steps

to notify the owner of the transmitter that the action has been

taken.

Compliance and enforcement

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Subdivision B--Investigation warrants

284KB Transmitter access warrants

Application for warrant

(1) An inspector may apply to an issuing officer by telephone, fax or

other electronic means for a warrant under this section in relation

to land, premises, a vessel, an aircraft, a space object or a vehicle.

Note:

For

issuing officer

, see section 284KD.

(2) The issuing officer:

(a) may require communication by voice to the extent that it is

practicable in the circumstances; and

(b) may make a recording of the whole or any part of any such

communication by voice.

(3) Before applying for the warrant, the inspector must prepare an

information that sets out the grounds on which the warrant is

sought. If it is necessary to do so, the inspector may apply for the

warrant before the information is sworn or affirmed.

Issue of warrant

(4) The issuing officer may issue the warrant if, after considering the

terms of the information and receiving such further information (if

any) that the issuing officer requires, the issuing officer is satisfied

that:

(a) a transmitter is operating on any land, or on or in the

premises, vessel, aircraft, space object or vehicle; and

(b) the land, premises, vessel, aircraft, space object or vehicle is

or are unoccupied; and

damage.

Content of warrant

(5) The warrant must:

(a) describe the land, premises, vessel, aircraft, space object or

vehicle to which the warrant relates; and

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(b) state that the warrant is issued under this Division; and

(d) specify the day (not more than 1 week after the issue of the

warrant) on which the warrant ceases to be in force.

(6) The warrant must authorise each inspector named in the warrant to:

(a) enter the land, premises, vessel, aircraft, space object or

vehicle, if the entry is made in circumstances of such

seriousness and urgency as to require and justify entry to

prevent the consequence set out in paragraph (4)(c); and

(b) take such action as the inspector considers necessary to cause

the transmitter to:

(i) cease operating; or

(ii) operate in such a way as to no longer give rise to the

consequence set out in paragraph (4)(c).

(7) The warrant must state whether entry is authorised to be made at

any time of the day or during specified hours of the day.

Informing inspector

(8) After completing and signing the warrant, the issuing officer must

inform the inspector who applied for the warrant, by telephone, fax

or other electronic means, of:

(a) the terms of the warrant; and

(b) the day on which, and the time at which, the warrant was

signed.

Obligations on inspector

(9) The inspector who applied for the warrant must then do the

following:

(a) complete a form of warrant in the same terms as the warrant

completed and signed by the issuing officer;

(b) state on the form the following:

(i) the name of the issuing officer;

(ii) the day on which, and the time at which, the warrant

was signed;

(i) the form of warrant completed by the inspector;

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(ii) the information referred to in subsection (3), which

must have been duly sworn or affirmed.

(10) The inspector who applied for the warrant must comply with

paragraph (9)(c) by the end of the day after the earlier of the

following:

(a) the day on which the warrant ceases to be in force;

(b) the day on which the warrant is executed.

Issuing officer to attach documents together

(11) The issuing officer must attach the documents provided under

paragraph (9)(c) to the warrant signed by the issuing officer.

284KC Offence relating to warrants

An inspector must not:

(a) state in a document that purports to be a form of warrant

under section 284KB the name of an issuing officer unless

that issuing officer signed the warrant; or

(b) state on a form of warrant under that section a matter that, to

the inspector's knowledge, departs in a material particular

from the terms of the warrant signed by the issuing officer

under that section; or

that purports to be a form of warrant under that section that

the inspector knows departs in a material particular from the

terms of a warrant signed by an issuing officer under that

section; or

(d) purport to execute, or present to another person, a document

that purports to be a form of warrant under that section where

the inspector knows that no warrant in the terms of the form

of warrant has been completed and signed by an issuing

officer; or

(e) give to an issuing officer a form of warrant under that section

that is not the form of warrant that the inspector purported to

execute.

Penalty: Imprisonment for 2 years.

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Subdivision C--Issuing officers

284KD Issuing officer

For the purposes of this Division, each of the following persons is

issuing officer

(a) if a Judge of the Federal Court has consented to act as an

issuing officer for the purposes of this Act and that consent is

in force--the Judge;

(b) if a Judge of the Federal Circuit Court of Australia has

consented to act as an issuing officer for the purposes of this

Act and that consent is in force--the Judge;

284KE Powers of issuing officers

Powers conferred personally

(1) A power conferred on an issuing officer by this Division is

conferred on the issuing officer:

(a) in a personal capacity; and

(b) not as a court or a member of a court.

Powers need not be accepted

(2) The issuing officer need not accept the power conferred.

Protection and immunity

(3) An issuing officer exercising a power conferred by this Division

has the same protection and immunity as if the issuing officer were

exercising the power:

(a) as the court of which the issuing officer is a member; or

(b) as a member of the court of which the issuing officer is a

member.

Compliance and enforcement

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Division 7--Court-ordered forfeiture

284L Court may order forfeiture

(1) If a court convicts a person of an offence against this Act, the court

may order the forfeiture to the Commonwealth of anything used, or

otherwise involved, in the commission of the offence.

Note:

Offence against this Act

has an extended meaning

(see section 11).

(2) If a court makes a civil penalty order under section 82 of the

Regulatory Powers Act in relation to a contravention of a civil

penalty provision of this Act, the court may order the forfeiture to

the Commonwealth of anything used, or otherwise involved, in the

contravention of the civil penalty provision.

(3) If the Federal Court or the Federal Circuit Court of Australia is

satisfied that a thing was used, or otherwise involved, in a

contravention of a civil penalty provision of this Act, the court

may, on the application of the ACMA, order the forfeiture to the

Commonwealth of that thing.

284M Forfeited goods may be sold, destroyed or otherwise disposed

A thing forfeited under section 284L:

(a) may be sold, destroyed or otherwise disposed of in

accordance with the directions of the ACMA; and

(b) pending such directions, must be kept in such custody as the

ACMA directs.

Division 8--Public warning notices

284N Public warning notices

(1) The ACMA may issue to the public, in a way that the ACMA

thinks fit, a written notice containing a warning about particular

conduct engaged in by a person if:

(a) the ACMA suspects on reasonable grounds that the conduct

may constitute a contravention of:

(i) a provision of Part 4.1; or

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(ii) section 192; or

(iii) section 193; or

(iv) section 194; or

(v) section 195; or

(vi) section 197; or

(vii) a provision of the equipment rules; and

(b) the ACMA is satisfied that one or more persons have

suffered, or are likely to suffer, detriment as a result of the

conduct; and

the notice.

(2) A notice under subsection (1) may be issued to the public by being

published on the ACMA's website.

(3) Subsection (2) does not, by implication, limit the ACMA's power

to decide a way in which a notice under subsection (1) may be

issued to the public.

(4) A notice issued under subsection (1) is not a legislative instrument.

Division 9--Miscellaneous

284P Act not to affect performance of duties by inspectors

Nothing in Chapter 3 or Part 4.1 or 4.2 prohibits the doing of any

act or thing by an inspector in the performance of the inspector's

duties under this Act or Part 3 of the Regulatory Powers Act.

284Q Inspectors not authorised to enter or search certain land or

premises etc. used for defence purposes

Nothing in Division 5 or 6 of this Part, or in Part 3 of the

Regulatory Powers Act, authorises an inspector to enter or to

search:

(a) land or premises that are:

(i) occupied or used for the purposes of defence; and

(ii) specified in the legislative rules; or

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(b) a vessel, aircraft, space object or vehicle that is in the

possession or control of the Defence Force or a part of the

Defence Force;

unless:

being in charge of those premises or that land, vessel,

aircraft, space object or vehicle; or

(d) if it is not reasonably practicable to obtain permission of the

kind mentioned in paragraph (c)--the entry and search is

supervised by a member of the Defence Force, or an APS

employee in the Defence Department, authorised to have

access to those premises or that land, vessel, aircraft, space

object or vehicle.

Note:

For specification by class, see subsection 13(3) of the

Legislation Act

2003

32 After paragraph 285(w)

Insert:

(wa) a decision under subsection 268(2) to give a direction;

33 Part 5.8

Repeal the Part.

34 Paragraphs 314(2)(d) to (f)

Repeal the paragraphs.

35 Section 315

Repeal the section.

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Consequential amendments

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Part 2--Consequential amendments

Australian Communications and Media Authority Act 2005

36 After section 67

Insert:

67A Liability for damages--public warning notices

None of the following:

(a) the Commonwealth;

(b) the ACMA;

is liable to an action or other proceeding for damages for, or in

relation to, an act or matter done in good faith in the exercise, or

purported exercise, of the ACMA's power under section 284N of

the

Radiocommunications Act 1992

Note:

Section 284N of the

Radiocommunications Act 1992

deals with public

warning notices.

Telecommunications (Interception and Access) Act 1979

37 Paragraph 6(2H)(a)

Omit "section 267", substitute "section 284".

38 After subsection 6(2H)

Insert:

(2J) If:

(a) an inspector under section 284 of the

Radiocommunications

Act 1992

is lawfully engaged in exercising powers under

Part 2 of the

Regulatory Powers (Standard Provisions) Act

2014

as it applies in relation to:

(i) a provision mentioned in subsection 284A(1) of the

Radiocommunications Act 1992

; or

(ii) information mentioned in subsection 284A(2) of the

Radiocommunications Act 1992

; and

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(b) while exercising those powers, the inspector incidentally

listens to or records a communication passing over a

telecommunications system;

the listening or recording does not, for the purposes of this Act,

constitute an interception of the communication.

(2K) If:

(a) an inspector under section 284 of the

Radiocommunications

Act 1992

is lawfully engaged in exercising powers under

Part 3 of the

Regulatory Powers (Standard Provisions) Act

2014

as it applies in relation to a provision mentioned in

subsection 284B(1) of the

Radiocommunications Act 1992

;

and

(b) while exercising those powers, the inspector incidentally

listens to or records a communication passing over a

telecommunications system;

the listening or recording does not, for the purposes of this Act,

constitute an interception of the communication.

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Amendments contingent on the commencement of the Federal Circuit and

Family Court of Australia Act 2020

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Part 3--Amendments contingent on the

commencement of the Federal Circuit and

Family Court of Australia Act 2020

Radiocommunications Act 1992

39 Paragraphs 269(3)(b), 271(3)(b), 272(3)(b), 284A(5)(b) and

(10)(b), 284B(4)(b) and (9)(b) and 284KD(b)

Omit "Federal Circuit Court of Australia", substitute "Federal Circuit

and Family Court of Australia".

40 Subsection 284L(3)

Omit "Federal Circuit Court of Australia", substitute "Federal Circuit

and Family Court of Australia".

Compliance and enforcement

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Part 4--Transitional provisions

Division 1

--General

41 Transitional

--enforcement

(1)

Part 5.5 of the

Radiocommunications Act 1992

(as amended by this

Schedule), so far as it relates to an offence or alleged offence, does not

apply to an offence committed, or allegedly committed, before the

commencement of this item.

(2)

Despite the repeal by this Schedule of Divisions 1, 2, 3, 5 and 6 of

Part 5.5 and paragraph 314(2)(e) of the

Radiocommunications Act 1992

(a) those Divisions; and

(b) that paragraph; and

continue to apply, in relation to an offence committed, or allegedly

committed, before the commencement of this item as if:

(d) those Divisions and that paragraph had not been repealed;

and

(e) the definition of

inspector

in section 5 of that Act had not

been amended by this Schedule; and

(f) the items of this Division (other than this item) had not been

enacted.

42 Transitional

--appointment of a Commonwealth officer to

be an inspector

Scope

(1)

This item applies to an instrument if:

(a) the instrument was in force immediately before the

commencement of this item; and

(b) the instrument was made under:

(i) paragraph 267(1)(a) of the

Radiocommunications Act

1992

; or

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(ii) paragraph 267(1)(a) of the

Radiocommunications Act

1992

and subsection 533(1) of the

Telecommunications

Act 1997

; or

(iii) paragraph 267(1)(a) of the

Radiocommunications Act

1992

, subsection 533(1) of the

Telecommunications Act

1997

and regulation 42 of the

Radiocommunications

Regulations 1993

; and

(within the meaning of the

Radiocommunications Act 1992

Effect of instrument

(2)

The instrument, so far as it was made under paragraph 267(1)(a) of the

Radiocommunications Act 1992

, has effect, after the commencement of

this item, as if:

(a) it had been made under paragraph 284(1)(a) of the

Radiocommunications Act 1992

; and

(b) a reference in the instrument to a provision of Part 5.5 of the

Radiocommunications Act 1992

were a reference to:

(i) the corresponding provision of Part 5.5 of the

Radiocommunications Act 1992

(as amended by this

Schedule); or

(ii) the corresponding provision of the

Regulatory Powers

(Standard Provisions) Act 2014

; and

Radiocommunications Act

1992

in relation to the making of the instrument (including a

requirement about the form of words) had been satisfied.

43 Transitional

--appointment of officers included in a class

of Commonwealth officers to be inspectors

Scope

(1)

This item applies to an instrument if:

(a) the instrument was in force immediately before the

commencement of this item; and

(b) the instrument was made under:

(i) paragraph 267(1)(b) of the

Radiocommunications Act

1992

; or

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(ii) paragraph 267(1)(b) of the

Radiocommunications Act

1992

and subsection 533(1) of the

Telecommunications

Act 1997

; and

officers (within the meaning of the

Radiocommunications Act

1992

Effect of instrument

(2)

The instrument, so far as it was made under paragraph 267(1)(b) of the

Radiocommunications Act 1992

, has effect, after the commencement of

this item, as if:

(a) it had been made under paragraph 284(1)(b) of the

Radiocommunications Act 1992

; and

(b) a reference in the instrument to a provision of Part 5.5 of the

Radiocommunications Act 1992

were a reference to:

(i) the corresponding provision of Part 5.5 of the

Radiocommunications Act 1992

(as amended by this

Schedule); or

(ii) the corresponding provision of the

Regulatory Powers

(Standard Provisions) Act 2014

; and

Radiocommunications Act

1992

or the

Legislation Act 2003

in relation to the making of

the instrument (including a requirement about the form of

words) had been satisfied.

44 Transitional

--appointment of a State officer to be an

inspector

Scope

(1)

This item applies to an instrument if:

(a) the instrument was in force immediately before the

commencement of this item; and

(b) the instrument was made under:

(i) paragraph 267(1)(a) of the

Radiocommunications Act

1992

; or

(ii) paragraph 267(1)(a) of the

Radiocommunications Act

1992

and subsection 533(1) of the

Telecommunications

Act 1997

; and

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Radiocommunications Legislation Amendment (Reform and

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(within the meaning of section 284 of the

Radiocommunications Act 1992

Note:

See also Part 5 of this Schedule (eligible States).

Effect of instrument

(2)

The instrument, so far as it was made under paragraph 267(1)(a) of the

Radiocommunications Act 1992

, has effect, after the commencement of

this item, as if:

(a) it had been made under paragraph 284(1)(c) of the

Radiocommunications Act 1992

; and

(b) a reference in the instrument to a provision of Part 5.5 of the

Radiocommunications Act 1992

were a reference to:

(i) the corresponding provision of Part 5.5 of the

Radiocommunications Act 1992

(as amended by this

Schedule); or

(ii) the corresponding provision of the

Regulatory Powers

(Standard Provisions) Act 2014

; and

Radiocommunications Act

1992

in relation to the making of the instrument (including a

requirement about the form of words) had been satisfied.

45 Transitional

--appointment of officers included in a class

of State officers to be inspectors

Scope

(1)

This item applies to an instrument if:

(a) the instrument was in force immediately before the

commencement of this item; and

(b) the instrument was made under:

(i) paragraph 267(1)(b) of the

Radiocommunications Act

1992

; or

(ii) paragraph 267(1)(b) of the

Radiocommunications Act

1992

and subsection 533(1) of the

Telecommunications

Act 1997

; and

Compliance and enforcement

Schedule 6

Transitional provisions

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Radiocommunications Legislation Amendment (Reform and

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179

officers (within the meaning of section 284 of the

Radiocommunications Act 1992

Note:

See also Part 5 of this Schedule (eligible States).

Effect of instrument

(2)

The instrument, so far as it was made under paragraph 267(1)(b) of the

Radiocommunications Act 1992

, has effect, after the commencement of

this item, as if:

(a) it had been made under paragraph 284(1)(d) of the

Radiocommunications Act 1992

; and

(b) a reference in the instrument to a provision of Part 5.5 of the

Radiocommunications Act 1992

were a reference to:

(i) the corresponding provision of Part 5.5 of the

Radiocommunications Act 1992

(as amended by this

Schedule); or

(ii) the corresponding provision of the

Regulatory Powers

(Standard Provisions) Act 2014

; and

Radiocommunications Act

1992

or the

Legislation Act 2003

in relation to the making of

the instrument (including a requirement about the form of

words) had been satisfied.

46 Transitional

--identity card (monitoring powers)

Scope

(1)

This item applies to an identity card if:

(a) the card was issued to a person before the commencement of

this item; and

(b) the card was issued under:

(i) subsection 268(1) of the

Radiocommunications Act

1992

; or

(ii) subsection 268(1) of the

Radiocommunications Act

1992

and subsection 534(1) of the

Telecommunications

Act 1997

; and

person:

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(i) was an inspector (within the meaning of that Act); and

(ii) was not a member of a police force; and

(d) the person is an authorised person for the purposes of Part 2

of the

Regulatory Powers (Standard Provisions) Act 2014

relation to:

(i) the provisions mentioned in subsection 284A(1) of the

Radiocommunications Act 1992

(as amended by this

Schedule); and

(ii) the information mentioned in subsection 284A(2) of the

Radiocommunications Act 1992

(as amended by this

Schedule).

Effect of card

(2)

The card, so far as it was issued under subsection 268(1) of the

Radiocommunications Act 1992

, has effect, after the commencement of

this item, as if:

(a) it had been issued to the person under subsection 35(1) of the

Regulatory Powers (Standard Provisions) Act 2014

; and

(b) any requirement imposed by or under subsection 35(2) of that

Act in relation to the card had been satisfied.

47 Transitional

--identity card (investigation powers)

Scope

(1)

This item applies to an identity card if:

(a) the card was issued to a person before the commencement of

this item; and

(b) the card was issued under subsection 268(1) of the

Radiocommunications Act 1992

; and

person;

(i) was an inspector (within the meaning of that Act); and

(ii) was not a member of a police force; and

(d) the person is an authorised person for the purposes of Part 3

of the

Regulatory Powers (Standard Provisions) Act 2014

relation to evidential material that relates to a provision

mentioned in subsection 284B(1) of the

Compliance and enforcement

Schedule 6

Transitional provisions

Part 4

No. , 2020

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Modernisation) Bill 2020

181

Radiocommunications Act 1992

(as amended by this

Schedule).

Effect of card

(2)

The card has effect, after the commencement of this item, as if:

(a) it had been issued to the person under subsection 76(1) of the

Regulatory Powers (Standard Provisions) Act 2014

; and

(b) any requirement imposed by or under subsection 76(2) of that

Act in relation to the card had been satisfied.

Division 2

--Infringement notices

48 Transitional

--infringement notices

(1)

Despite the repeal by this Schedule of paragraph 11(2)(b) of the

Radiocommunications Act 1992

, that paragraph continues to apply, in

relation to a payment made in relation to an offence allegedly

committed before the commencement of this item, as if that paragraph

had not been repealed.

(2)

Despite the repeal by this Schedule of section 315 and

paragraph 314(2)(d) of the

Radiocommunications Act 1992

(a) that section; and

(b) that paragraph; and

continue to apply, in relation to an offence allegedly committed before

the commencement of this item, as if that section and that paragraph

had not been repealed.

Division 3

--Enforceable undertakings

49 Transitional

--enforceable undertakings

If:

(a) before the commencement of this item:

(i) a person gave an undertaking under section 298C of the

Radiocommunications Act 1992

; and

(ii) the ACMA accepted the undertaking; and

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(b) the undertaking was not withdrawn or cancelled before the

commencement of this item;

the undertaking has effect, after the commencement of this item, as if:

and

(d) it had been accepted by the ACMA under that Part.

Compliance and enforcement

Schedule 6

Eligible States

Part 5

No. , 2020

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183

Part 5--Eligible States

50 Eligible States

--consent and declaration

(1)

A State may give consent under subsection 284(5) of the

Radiocommunications Act 1992

(as amended by this Schedule) as if

subsections 284(5) to (8) of that Act had commenced at same time as

the commencement of this item.

(2)

If a State gives consent as mentioned in subitem (1):

(a) the consent has effect as if subsections 284(5) to (8) of the

Radiocommunications Act 1992

(as amended by this

Schedule) had commenced at same time as the

commencement of this item; and

(b) the ACMA may make a declaration in relation to the State

under subsection 284(7) of that Act as if subsections 284(5)

to (8) of that Act had commenced at same time as the

commencement of this item.

(3)

If the ACMA makes a declaration as mentioned in paragraph (2)(b) of

this item, the declaration takes effect as if subsections 284(5) to (8) of

the

Radiocommunications Act 1992

(as amended by this Schedule) had

commenced at same time as the commencement of this item.

(4)

This item does not, by implication, affect the application of section 4 of

the

Acts Interpretation Act 1901

to a power conferred by a provision

other than subsection 284(5) or (7) of the

Radiocommunications Act

1992

(as amended by this Schedule).

(5)

For the purposes of this item,

State

includes:

(a) the Australian Capital Territory; and

(b) the Northern Territory.

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Information-gathering powers

Part 1

Amendments

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Schedule 7--Information-gathering powers

Part 1--Amendments

Radiocommunications Act 1992

1 Before Part 5.6

Insert:

Part 5.5A--Information-gathering powers

284R Simplified outline of this Part

•

The ACMA may require a person to give the ACMA

information, or produce to the ACMA a document, that relates

to:

(a)

the supply of radiocommunications devices; or

(b)

the operation, or proposed operation, of

radiocommunications devices; or

(c)

the unlawful possession of radiocommunications

devices; or

(d)

compliance, or non-compliance, with conditions of an

apparatus licence or a spectrum licence.

284S The ACMA may obtain information or documents

Scope

(1) This section applies to a person if:

(a) the ACMA believes on reasonable grounds that:

(i) the person has information or a document that relates to

the supply of, or an offer to supply, one or more

radiocommunications devices; and

(ii) the information or document is relevant to the operation

of this Act or the equipment rules, so far as this Act

Information-gathering powers

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relates, or the equipment rules relate, to interference

with radiocommunications; and

(iii) the information or document would be reasonably likely

to assist the ACMA in connection with managing,

limiting or preventing interference with

radiocommunications; or

(b) the ACMA believes on reasonable grounds that:

(i) the person has information or a document that relates to

the supply of, or an offer to supply, one or more

radiocommunications transmitters; and

(ii) the information or document is relevant to the operation

of this Act, so far as this Act relates to radio emissions

that result from a reasonably foreseeable use (including

a misuse) of those radiocommunications transmitters

and that would be likely to adversely affect the health or

safety of individuals; or

(i) the person has information or a document that relates to

the supply of, or an offer to supply, one or more

radiocommunications transmitters; and

(ii) the information or document is relevant to the operation

of the equipment rules, so far as the equipment rules are

directed towards achieving the objective

of protecting

the health or safety of individuals from any adverse

effect likely to be attributable to radio emissions

resulting from a reasonably foreseeable use (including a

misuse) of those radiocommunications transmitters; or

(d) the ACMA believes on reasonable grounds that the person

has information or a document that relates to the operation, or

proposed operation, of one or more radiocommunications

devices under:

(i) an apparatus licence; or

(ii) a spectrum licence; or

(iii) a class licence; or

(e) the ACMA believes on reasonable grounds that the person

has information or a document that relates to the proposed

operation of one or more radiocommunications devices

under:

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No. , 2020

(i) an apparatus licence that might be issued in the future;

(ii) a spectrum licence that might be issued in the future; or

(iii) a class licence that might be issued in the future; or

(f) the ACMA believes on reasonable grounds that the person

has information or a document that relates to compliance or

non-compliance with one or more conditions of:

(i) an apparatus licence; or

(ii) a spectrum licence; or

(iii) a class licence; or

(g) the ACMA believes on reasonable grounds that the person

has information or a document that relates to the operation, or

proposed operation, of one or more radiocommunications

devices otherwise than as authorised by:

(i) an apparatus licence; or

(ii) a spectrum licence; or

(iii) a class licence; or

(h) the ACMA believes on reasonable grounds that the person

has information or a document that relates to the possession,

or proposed possession, of one or more radiocommunications

devices for the purpose of operating those devices otherwise

than as authorised by:

(i) an apparatus licence; or

(ii) a spectrum licence; or

(iii) a class licence.

Requirement

(2) The ACMA may, by written notice given to the person, require the

person:

(a) to give the ACMA, within the period and in the manner and

form specified in the notice, any such information; or

(b) to produce to the ACMA, within the period and in the

manner specified in the notice, any such documents; or

ACMA, within the period and in the manner specified in the

notice, those copies.

Information-gathering powers

Schedule 7

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187

(3) A period specified under subsection (2) must not be shorter than 14

days.

Compliance

(4) A person must comply with a requirement under subsection (2).

Civil penalty:

20 penalty units.

Other provisions not limited

(5) This section does not, by implication, limit:

(a) any other provision of this Act that requires a person to:

(i) give information; or

(ii) produce a document; or

(b) a power conferred by this Act to make:

(i) regulations; or

(ii) rules; or

(iii) any other legislative instrument.

284T Copying documents--compensation

A person is entitled to be paid by the ACMA, on behalf of the

Commonwealth, reasonable compensation for complying with a

requirement covered by paragraph 284S(2)(c).

284U Copies of documents

(1) The ACMA may:

(a) inspect a document or copy produced under subsection

284S(2); and

(b) make and retain copies of, or take and retain extracts from,

such a document.

(2) The ACMA may retain possession of a copy of a document

produced in accordance with a requirement covered by paragraph

284S(2)(c).

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284V ACMA may retain documents

(1) The ACMA may take, and retain for as long as is necessary,

possession of a document produced under subsection 284S(2).

(2) The person otherwise entitled to possession of the document is

entitled to be supplied, as soon as practicable, with a copy certified

by the ACMA to be a true copy.

(3) The certified copy must be received in all courts and tribunals as

evidence as if it were the original.

(4) Until a certified copy is supplied, the ACMA must, at such times

and places as the ACMA thinks appropriate, permit the person

otherwise entitled to possession of the document, or a person

authorised by that person, to inspect and make copies of, or take

extracts from, the document.

284W Self-incrimination

(1) An individual is not excused from giving information or producing

a document under section 284S on the ground that giving the

information or producing the document might tend to incriminate

the individual in relation to an offence.

Note:

A body corporate is not entitled to claim the privilege against

self-incrimination.

(2) However:

(a) the information given or the document produced; or

(b) giving the information or producing the document; or

indirect consequence of giving the information or producing

the document;

is not admissible in evidence against the individual:

(d) in civil proceedings for the recovery of a penalty; or

(e) in criminal proceedings (other than proceedings for an

offence against section 137.1 or 137.2 of the

Criminal Code

that relates to this Part).

(3) If, at general law, an individual would otherwise be able to claim

the privilege against self-exposure to a penalty (other than a

Information-gathering powers

Schedule 7

Amendments

Part 1

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Modernisation) Bill 2020

189

penalty for an offence) in relation to giving information or

producing a document under section 284S, the individual is not

excused from giving information or producing a document under

that section on that ground.

Note:

A body corporate is not entitled to claim the privilege against

self-exposure to a penalty.

Schedule 7

Information-gathering powers

Part 2

Transitional provisions

190

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No. , 2020

Part 2--Transitional provisions

2 Transitional

--section 284S of the

Radiocommunications

Act 1992

Supply, or offer to supply, radiocommunications devices or

transmitters

(1)

For the purposes of:

(a) subparagraph 284S(1)(a)(i) of the

Radiocommunications Act

1992

; or

(b) subparagraph 284S(1)(b)(i) of the

Radiocommunications Act

1992

; or

Radiocommunications Act

1992

;

it is immaterial whether the supply, or the offer to supply, occurs

before, at or after the commencement of this item.

Operation, or proposed operation, of radiocommunications

devices

(2)

For the purposes of paragraph 284S(1)(d) of the

Radiocommunications

Act 1992

(a) so far as the paragraph relates to the operation of one or more

radiocommunications devices--it is immaterial whether the

operation occurs before, at or after the commencement of this

item; or

(b) so far as the paragraph relates to the proposed operation of

one or more radiocommunications devices--it is immaterial

whether the operation was or is proposed to occur before, at

or after the commencement of this item.

(3)

For the purposes of paragraph 284S(1)(g) of the

Radiocommunications

Act 1992

(a) so far as the paragraph relates to the operation of one or more

radiocommunications devices--it is immaterial whether the

operation occurs before, at or after the commencement of this

item; or

Information-gathering powers

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191

(b) so far as the paragraph relates to the proposed operation of

one or more radiocommunications devices--it is immaterial

whether the operation was or is proposed to occur before, at

or after the commencement of this item.

Compliance, or non-compliance, with licence conditions

(4)

For the purposes of paragraph 284S(1)(f) of the

Radiocommunications

Act 1992

, it is immaterial whether the compliance, or non-compliance,

occurs before, at or after the commencement of this item.

Possession, or proposed possession, of radiocommunications

devices

(5)

For the purposes of paragraph 284S(1)(h) of the

Radiocommunications

Act 1992

(a) so far as the paragraph relates to the possession of one or

more radiocommunications devices--it is immaterial whether

the possession occurs before, at or after the commencement

of this item; or

(b) so far as the paragraph relates to the proposed possession of

one or more radiocommunications devices--it is immaterial

whether the possession was or is proposed to occur before, at

or after the commencement of this item.

Schedule 8

Miscellaneous

Part 1

Amendment of the Radiocommunications Act 1992

192

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Modernisation) Bill 2020

No. , 2020

Schedule 8--Miscellaneous

Part 1--Amendment of the Radiocommunications

Act 1992

Radiocommunications Act 1992

1 Section 5

Insert:

authorised defence supplier

has the meaning given by

section 10B.

constitutional corporation

means a corporation to which

paragraph 51(xx) of the Constitution applies.

engage in conduct

means:

(a) do an act; or

(b) omit to perform an act.

legislative rules

means rules made under section 313B.

member of a civilian component of a visiting force

has the

meaning given by subsection 5(3) of the

Defence (Visiting Forces)

Act 1963

member of a visiting force

has the meaning given by

subsection 5(2) of the

Defence (Visiting Forces) Act 1963

1A After section 10A

Insert:

10B Authorised defence supplier

(1) For the purposes of this Act,

authorised defence supplier

means a

person who:

(a) is a party to a written agreement for the supply of goods or

services to the Defence Force or the Defence Department;

and

Miscellaneous

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193

(b) is approved in writing by a member of the Defence Force or

an officer of the Defence Department.

(2) An approval under paragraph (1)(b) is not a legislative instrument.

1B Subsection 24(1)

Repeal the subsection, substitute:

(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 the member's or officer's

functions or duties as such a member or officer, to the extent that

those functions or duties are for a purpose that relates to:

(a) research for purposes connected with defence; or

(b) intelligence.

(1A) This Act does not apply to anything done or omitted to be done by

a member of a visiting force, or by a member of a civilian

component of a visiting force, in the performance of the member's

functions or duties in relation to the defence, security or

international relations of:

(a) Australia; or

(b) a foreign country whose military is acting in co-operation

with the Defence Force;

to the extent that those functions or duties:

of the Defence Force or an officer of the Defence

Department; and

(d) are for a purpose that relates to:

(i) research for purposes connected with defence; or

(ii) intelligence.

(1B) This Act does not apply to anything done or omitted to be done by

an approved defence supplier in the performance of the supplier's

functions or duties in relation to the supply of goods or services to

the Defence Force or the Defence Department, to the extent that

those functions or duties are for a purpose that relates to:

(a) research for purposes connected with defence; or

(b) intelligence.

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Part 1

Amendment of the Radiocommunications Act 1992

194

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No. , 2020

1BA At the end of section 24

Add:

(3) An approval under paragraph (1A)(c) is not a legislative

instrument.

1C At the end of paragraph 26(1)(b)

Add:

; or (iv) safety; or

(v) security.

1D After subsection 26(1)

Insert:

(1A) Subject to subsection (3), Parts 3.1, 4.1 and 4.2 do not apply to

anything done or omitted to be done by a member of a visiting

force, or a member of a civilian component of a visiting force, if:

(a) the act or omission takes place in the performance of one of

the member's functions or duties in relation to the defence,

security or international relations of:

(i) Australia; or

(ii) a foreign country whose military is acting in

co-operation with the Defence Force; and

(b) the act or omission relates to an activity that is approved in

writing by a member of the Defence Force or an officer of

the Defence Department; and

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; or

(iv) safety; or

(v) security.

(1B) Subject to subsection (4), Parts 3.1, 4.1 and 4.2 do not apply to

anything done or omitted to be done by an authorised defence

supplier if:

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195

(a) the act or omission takes place in the in the performance of

one of the supplier's functions or duties in relation to the

supply of goods or services to the Defence Force or the

Defence Department; 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; or

(iv) safety; or

(v) security.

1E At the end of section 26

Add:

(3) 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 a visiting force, or a

member of a civilian component of a visiting force, in the

performance of one of the member's functions or duties as

mentioned in subsection (1A).

(4) 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 an authorised defence supplier in the

performance of one of the supplier's functions or duties as

mentioned in subsection (1B).

(5) An approval under paragraph (1A)(b) is not a legislative

instrument.

2 Subparagraph 68(2)(b)(i)

Omit "if applicable,".

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3 Subsection 69A(2)

Omit "an authorised person (see subsection (3)) derives income, profits

or gains from allowing third parties to operate radiocommunications

devices under the licence,", substitute "a person (the

authorised person

)

authorised under section 68 in relation to the licence derives income,

profits or gains from operating radiocommunications devices under the

licence,".

4 Subsection 69A(3) (definition of

authorised person

)

Repeal the definition.

5 Subsection 214(1)

Omit "(1)".

6 Subsection 214(2)

Repeal the subsection.

7 Paragraph 226(b)

Omit "section 48 of that Act as applied by section 229 of this Act",

substitute "section 42 of the

Legislation Act 2003

8 Before paragraph 285(x)

Insert:

(wb) a decision of the ACMA:

(i) made under the legislative rules; and

(ii) declared by the legislative rules to be a decision to

which this section applies;

9 Before section 303

Insert:

302 Exemptions from certain compliance provisions

Compliance provision

(1) For the purposes of this section, each of the following is a

compliance provision

(a) subsection 46(1);

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197

(b) subsection 46(3);

(d) subsection 47(3);

(e) subsection 170(1);

(f) subsection 170(2);

(g) subsection 170(3);

(h) subsection 175(1);

(i) subsection 175(2);

(j) subsection 175(3);

(k) subsection 175(4);

(l) subsection 176(1);

(m) subsection 176(2);

(n) subsection 176(3);

(o) subsection 176(4).

Exemptions

(2) The ACMA may, by legislative instrument, determine either or

both of the following:

(a) that one or more specified acts are exempt from one or more

specified compliance provisions;

(b) that one or more specified persons are exempt from one or

more specified compliance provisions.

(3) A determination under subsection (2) is subject to such conditions

(if any) as are specified in the determination.

(4) The ACMA must not determine an exemption under subsection (2)

unless the ACMA is satisfied that:

(a) the exemption is in the public interest; or

(b) the exemption is of a kind specified in the legislative rules.

(5) A determination under subsection (2) may confer a power to make

a decision of an administrative character on the ACMA.

10 After section 305

Insert:

Schedule 8

Miscellaneous

Part 1

Amendment of the Radiocommunications Act 1992

198

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

305A Computerised decision-making

(1) The ACMA may arrange for the use, under the ACMA's control,

of computer programs for any purposes for which the ACMA may,

or must, under this Act or under a legislative instrument made

under this Act:

(a) make a decision; or

(b) exercise any power or comply with any obligation; or

power or complying with an obligation.

(2) For the purposes of this Act and any legislative instrument made

under this Act, the ACMA is taken to have:

(a) made a decision; or

(b) exercised a power or complied with an obligation; or

the exercise of a power or the compliance with an obligation;

that was made, exercised, complied with or done by the operation

of a computer program under an arrangement made under

subsection (1).

(3) The ACMA must substitute a decision for a decision (the

initial

decision

) made by the operation of a computer program under an

arrangement under subsection (1) if the ACMA is satisfied that the

initial decision is incorrect.

11 After section 308

Insert:

308A Compensation for acquisition of property

(1) If the operation of this Act, or a legislative instrument under this

Act, would result in an acquisition of property (within the meaning

of paragraph 51(xxxi) of the Constitution) from a person otherwise

than on just terms (within the meaning of that paragraph), 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:

Miscellaneous

Schedule 8

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

199

(a) the Federal Court; or

(b) the Supreme Court of a State or Territory;

for the recovery from the Commonwealth of such reasonable

amount of compensation as the court determines.

12 After section 313A

Insert:

313B Legislative rules

(1) The Minister may, by legislative instrument, make rules

(

legislative rules

) prescribing matters:

(a) required or permitted by this Act to be prescribed by the

legislative

rules; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) To avoid doubt, the legislative

rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated

Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

(3) The legislative rules may make provision in relation to a matter by

conferring a power to make a decision of an administrative

character on the ACMA.

(4) The legislative rules may make provision in relation to a matter by

conferring a power to make a decision of an administrative

character on a person who holds a specified kind of accreditation.

(5) The legislative rules may authorise a person who holds a specified

kind of accreditation to charge fees in relation to the exercise by

the person of a power conferred by the legislative rules. A fee must

not be such as to amount to taxation.

Schedule 8

Miscellaneous

Part 1

Amendment of the Radiocommunications Act 1992

200

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

(6) Legislative rules that are inconsistent with the regulations have no

effect to the extent of the inconsistency, but legislative rules are

taken to be consistent with the regulations to the extent that the

rules are capable of operating concurrently with the regulations.

Miscellaneous

Schedule 8

Transitional provisions

Part 2

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

201

Part 2--Transitional provisions

13 Transitional

--spectrum licence condition about third party

use

Scope

(1)

This item applies to a spectrum licence that:

(a) was in force immediately before the commencement of this

item; and

(b) included a condition required by paragraph 68(2)(b) of the

Radiocommunications Act 1992

Condition

(2)

After the commencement of this item, the spectrum licence has effect as

if the expression "if applicable," were omitted from the condition.

14 Transitional

--spectrum licence condition about residency

etc.

Scope

(1)

This item applies to a spectrum licence that was in force immediately

before the commencement of this item.

Condition

(2)

After the commencement of this item, the spectrum licence:

(a) is taken to include a condition covered by subsection 69A(2)

of the

Radiocommunications Act 1992

(as amended by this

Schedule); and

(b) is taken not to include a condition that was covered by

subsection 69A(2) of the

Radiocommunications Act 1992

, as

in force immediately before the commencement of this item.

15 Constitutional safety net

--acquisition of property

(1)

If the operation of this Act would result in an acquisition of property

(within the meaning of paragraph 51(xxxi) of the Constitution) from a

Schedule 8

Miscellaneous

Part 2

Transitional provisions

202

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

person otherwise than on just terms (within the meaning of that

paragraph), 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) the Federal Court of Australia; or

(b) the Supreme Court of a State or Territory;

for the recovery from the Commonwealth of such reasonable amount of

compensation as the court determines.

Datacasting

Schedule 9

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

203

Schedule 9--Datacasting

Part 1--Amendment of the Radiocommunications

Act 1992

Radiocommunications Act 1992

1 Section 5

Repeal the following definitions:

(a) definition of

channel A datacasting transmitter licence

;

(b) definition of

channel B datacasting transmitter licence

;

community television broadcasting service

;

(d) definition of

datacasting transmitter licence

;

(e) definition of

domestic digital television receiver

2 Subsection 96(7)

Omit "Divisions 6 and 6A are", substitute "Division 6 is".

3 Sections 98A and 98B

Repeal the sections.

4 Subsection 100(1)

Omit "102B,".

5 Section 102B

Repeal the section.

6 Subsection 103(2)

Omit ", a datacasting transmitter licence".

7 Subsection 103(5)

Repeal the subsection.

8 Subsections 106(5A) and (6A)

Repeal the subsections.

Schedule 9

Datacasting

Part 1

Amendment of the Radiocommunications Act 1992

204

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

9 Subsection 106(7)

Omit ", (5A), (6) and (6A)", substitute "and (6)".

10 Subsection 106(9A)

Repeal the subsection.

11 Subsection 106(10)

Omit "or (9A)".

12 Subsection 106(11)

Omit "or (9A)".

13 Paragraph 107(3)(b)

Repeal the paragraph.

14 Paragraph 108(5)(b)

Repeal the paragraph.

15 Subparagraph 108A(1)(b)(i)

Omit "293", substitute "60 of the

Australian Communications and

Media Authority Act 2005

16 Section 109A

Repeal the section.

17 Section 110

Omit ", 109A(1)(k)".

18 Paragraph 111(1)(c)

Omit ", 109A(1)(k)".

19 Paragraph 111(1)(d)

Omit "or 109A(1)(d)".

20 Subsection 114(1)

Omit ", (3AA), (3A), (3B), (3D) and (3F)", substitute "and (3AA)".

Datacasting

Schedule 9

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

205

21 Subsections 114(3A) to (3F)

Repeal the subsections.

22 Paragraph 118(1)(c)

Omit "or 128C(1)".

23 Paragraph 118(1)(d)

Omit ", or section 128D,".

24 Division 4A of Part 3.3

Repeal the Division.

25 Division 6 of Part 3.3 (heading)

Omit "

: general

26 Paragraph 125(1)(a)

Omit "(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))".

27 Division 6A of Part 3.3

Repeal the Division.

28 Subsection 130(2B)

Repeal the subsection.

29 Subsection 131(1)

Omit "(1)".

30 Subsection 131(2)

Repeal the subsection.

31 Subsection 131AB(1)

Omit "sections 131AC and 131ACA", substitute "section 131AC".

32 Paragraph 131AB(3)(a)

Omit "Divisions 6 and 6A", substitute "Division 6".

Schedule 9

Datacasting

Part 1

Amendment of the Radiocommunications Act 1992

206

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

33 Section 131ACA

Repeal the section.

34 Paragraph 148(b)

Omit "or 128C".

35 Paragraph 148(c)

Omit "or 128D".

36 Division 1 of Part 5.6 (heading)

Repeal the heading.

37 Paragraph 285(eb)

Repeal the paragraph.

38 Paragraph 285(f)

Omit ", 109A(1)(k)".

39 Paragraph 285(ma)

Omit "otherwise than because of a decision under

paragraph 131ACA(b)".

40 Division 2 of Part 5.6

Repeal the Division.

Datacasting

Schedule 9

Other amendments

Part 2

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

207

Part 2--Other amendments

Australian Communications and Media Authority Act 2005

41 Subparagraph 9(h)(i)

Omit "(other than a provision of that Act covered by

paragraph 10(1)(p))".

42 Paragraph 10(1)(p)

Repeal the paragraph.

Broadcasting Services Act 1992

43 Subsection 6(1) (note 1 to the definition of

associate

)

Repeal the note.

44 Subsection 6(1) (note 2 to the definition of

associate

)

Omit "2".

45 Subsection 6(1) (definition of

channel B datacasting

transmitter licence

)

Repeal the definition.

46 Subsection 6(1) (definitions of

datacasting transmitter

licence

and

domestic digital television receiver

)

Repeal the definitions.

47 Subsection 6(1) (definition of

licence

)

Repeal the definition, substitute:

licence

means a licence allocated by the ACMA under this Act

(other than a class licence).

48 Subsection 6(1) (definition of

MDS system

)

Repeal the definition.

Schedule 9

Datacasting

Part 2

Other amendments

208

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

49 Section 7 (note)

Repeal the note.

50 Part 5 (heading)

Repeal the heading, substitute:

Part 5--Control of commercial broadcasting

licences

51 Section 51A

Repeal the section.

52 Subdivision A of Division 2 of Part 5 (heading)

Repeal the heading.

53 Subdivision B of Division 2 of Part 5

Repeal the Subdivision.

54 Subdivision A of Division 3 of Part 5 (heading)

Repeal the heading.

55 Subdivision B of Division 3 of Part 5

Repeal the Subdivision.

56 Subsection 63(1)

Omit "a commercial television broadcasting licensee, commercial radio

broadcasting licensee or datacasting transmitter licensee", substitute "a

commercial television broadcasting licensee or a commercial radio

broadcasting licensee".

57 Subsection 63(5) (paragraph (a) of the penalty)

Omit ", a datacasting transmitter licence".

58 Subsection 66(1) (paragraph (e) of the penalty)

Omit "or datacasting transmitter licence".

Datacasting

Schedule 9

Other amendments

Part 2

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

209

59 Section 69 (paragraph (a) of the penalty)

Omit "or datacasting transmitter licence".

60 Section 72 (paragraph (a) of the penalty)

Omit "or datacasting transmitter licence".

61 Paragraphs 74(1)(a) and (b)

Omit "a datacasting transmitter licence,".

62 Subsection 74(2)

Omit "the datacasting transmitter licence,".

63 Subsection 130A(7) (note 6)

Repeal the note.

64 Paragraph 130F(1)(h)

Repeal the paragraph.

65 Subsection 212(2B)

Repeal the subsection.

66 Subclause 1(1) of Schedule 1

Omit "datacasting transmitter licences,".

67 Subclause 1(2) of Schedule 1

Omit "and datacasting industries", substitute "industry".

68 Paragraph 2(1)(b) of Schedule 1

Omit "(other than a datacasting transmitter licence)".

69 Paragraph 2(1)(ba) of Schedule 1

Repeal the paragraph.

70 Subclause 2(2A) of Schedule 1

Repeal the subclause.

Schedule 9

Datacasting

Part 2

Other amendments

210

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

71 Paragraph 4(2)(b) of Schedule 1

Omit "in the case of a licensee other than a datacasting transmitter

licensee--".

72 Paragraph 4(2)(ba) of Schedule 1

Repeal the paragraph.

73 Subclause 4(4) of Schedule 1 (paragraph (bb) of the

definition of

media company

)

Repeal the paragraph.

74 Clause 1 of Schedule 4

Omit "and datacasters".

75 Clause 42 of Schedule 4

Omit:

•

The owner or operator of a broadcasting transmission tower or

a designated associated facility must provide a datacaster with

access to the tower or facility.

76 Clause 42 of Schedule 4

Omit:

•

The owner or operator of a broadcasting transmission tower

must provide a datacaster with access to the site of the tower.

77 Clause 43 of Schedule 4 (definition of

datacaster

)

Repeal the definition.

78 Clause 43 of Schedule 4 (definition of

datacasting

transmitter licence

)

Repeal the definition.

79 Subclauses 45(3) and (4) of Schedule 4

Repeal the subclauses.

Datacasting

Schedule 9

Other amendments

Part 2

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

211

80 Subclause 45(5) of Schedule 4

Omit "or (3)" (wherever occurring).

81 Subclause 45(5) of Schedule 4

Omit ", as the case may be,".

82 Subclause 45(6) of Schedule 4

Omit "or (3)".

83 Subclauses 45A(4) and (5) of Schedule 4

Repeal the subclauses.

84 Subclause 45A(6) of Schedule 4

Omit "or (4)" (wherever occurring).

85 Subclause 45A(6) of Schedule 4

Omit ", as the case may be,".

86 Subclause 45A(7) of Schedule 4

Omit "or (4)".

87 Subclause 45A(9) of Schedule 4

Omit "from subclauses (2) and (4)", substitute "from subclause (2)".

88 Subclauses 46(3) and (4) of Schedule 4

Repeal the subclauses.

89 Subclause 46(5) of Schedule 4

Omit "or (3)" (wherever occurring).

90 Subclause 46(5) of Schedule 4

Omit ", as the case may be,".

91 Subclause 46(6) of Schedule 4

Omit "or (3)".

Schedule 9

Datacasting

Part 2

Other amendments

212

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

92 Subclause 47(1) of Schedule 4

Omit "or (3)".

93 Subclause 47(1A) of Schedule 4

Omit "or (4)".

94 Subclause 47(2) of Schedule 4

Omit "or (3)".

95 Subclause 2(1) of Schedule 6 (definition of

nominated

datacaster declaration

)

Repeal the definition.

96 Parts 6 and 7 of Schedule 6

Repeal the Parts.

97 Clause 58 of Schedule 6 (table items 6 and 7)

Repeal the items.

Competition and Consumer Act 2010

98 Subparagraph 155(2)(a)(ii)

Omit "4A or".

99 Paragraph 155(9)(d)

Omit "4A or".

100 Subsection 155AAA(21) (paragraph (d) of the definition

protected information

)

Omit "118C, 118G,".

Income Tax Assessment Act 1997

101 Paragraph 40-30(2)(g)

Repeal the paragraph.

Datacasting

Schedule 9

Other amendments

Part 2

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

213

102 Paragraph 40-70(2)(d)

Repeal the paragraph.

103 Paragraph 40-72(2)(d)

Repeal the paragraph.

104 Subsection 40-95(7) (table item 10)

Repeal the item.

105 Subsection 995-1(1) (definition of

datacasting transmitter

licence

)

Repeal the definition.

Schedule 9

Datacasting

Part 3

Transitional provisions

214

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Part 3--Transitional provisions

106 Application

--amendments of the

Income Tax

Assessment Act 1997

Despite the amendments of the

Income Tax Assessment Act 1997

made

by this Schedule, the

Income Tax Assessment Act 1997

continues to

apply, in relation to a datacasting transmitter licence that was in

existence before the commencement of this item, as if those

amendments had not been made.

107 Transitional

--section 155 of the

Competition and

Consumer Act 2010

Section 155 of the

Competition and Consumer Act 2010

has effect, after

the commencement of this item, as if:

(a) a matter that constitutes, or may constitute, a contravention of

repealed Division 4A of Part 3.3 of the

Radiocommunications

Act 1992

were a matter referred to in subsection (2) of that

section; and

(b) a reference in that section to a designated communications

matter included a reference to the performance of a function,

or the exercise of a power, conferred on the Australian

Competition and Consumer Commission by or under

repealed Division 4A of Part 3.3 of the

Radiocommunications

Act 1992

108 Transitional

--section 155AAA of the

Competition and

Consumer Act 2010

Section 155AAA of the

Competition and Consumer Act 2010

has effect,

after the commencement of this item, as if a reference in that section to

protected information included a reference to information that was

obtained by the Australian Competition and Consumer Commission

under repealed section 118C or 118G of the

Radiocommunications Act

1992

Public inquiries

Schedule 10

Amendment of the Radiocommunications Act 1992

Part 1

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

215

Schedule 10--Public inquiries

Part 1--Amendment of the Radiocommunications

Act 1992

Radiocommunications Act 1992

1 Subsection 231(3)

Repeal the subsection.

2 Part 5.2

Repeal the Part.

Schedule 10

Public inquiries

Part 2

Other amendments

216

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

No. , 2020

Part 2--Other amendments

Australian Communications and Media Authority Act 2005

3 Section 3 (definition of

inquiry

)

Repeal the definition, substitute:

inquiry

means an inquiry held, or proposed to be held, by the

ACMA under Part 25 of the

Telecommunications Act 1997

4 Paragraph 4(2)(b)

Repeal the paragraph.

Duration of licences

Schedule 11

No. , 2020

Radiocommunications Legislation Amendment (Reform and

Modernisation) Bill 2020

217

Schedule 11--Duration of licences

Radiocommunications Act 1992

1 Subsection 65(3)

Omit "15 years", substitute "20 years".

2 Subsection 103(3)

Omit "5 years", substitute "20 years".

Commonwealth of Australia Bills

RADIOCOMMUNICATIONS LEGISLATION AMENDMENT (REFORM AND MODERNISATION) BILL 2020