Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Resumption Procedures
1 Pre - acquisition declarations
(1) The ACMA must cause to be published in the Gazette a pre - acquisition declaration for the spectrum licence, or the part of the spectrum licence, that it wishes to resume.
(2) The pre - acquisition declaration must contain:
(a) a description of the licence, or the part of the licence, to be resumed; and
(b) a statement of the ACMA's reasons for the resumption.
2 Service on licensees and third party users
(1) Within 14 days after publication in the Gazette , the ACMA must serve the declaration on the licensee by registered post sent to the address of the place of residence or business of the licensee last known to the ACMA.
(2) The licensee must, within 7 days after being so served, give a written notice of the proposed resumption to:
(a) if the whole of the licence is to be resumed--each person (if any) authorised by the licensee to operate a radiocommunications device under the licence; or
(b) if a part of the licence is to be resumed--each person (if any) so authorised whose interests would be affected by resumption of that part of the licence.
(3) Failure to comply with the requirements of this clause does not affect the validity of the pre - acquisition declaration.
Note: A pre - acquisition declaration is reviewable under Part 5.6.
(1) If the pre - acquisition declaration is in force at the end of the review period, the ACMA must cause to be published in the Gazette a notice that the licence, or the part of the licence, is resumed.
(2) The review period commences when the pre - acquisition declaration is made and ends:
(a) if the period for applying under Part 5.6 for reconsideration of the pre - acquisition declaration has expired without such an application being made--at the end of the period for applying for reconsideration; or
(b) if the pre - acquisition declaration was reconsidered under Part 5.6 and the period for applying under that Part for review by the AAT of the reconsideration has expired without such an application being made--at the end of the period for applying for review by the AAT; or
(c) if review by the AAT was applied for within that period--when the review, and any appeals or other proceedings arising from the review, have been finally disposed of.
4 Date of effect of resumptions
The resumption takes effect:
(a) if the resumption notice specifies a day for the purpose--on that day; or
(b) otherwise--14 days after the day on which the resumption notice was published.
Within 14 days after the resumption notice was published, the ACMA must give to the licensee a written notice that:
(a) sets out a copy of the resumption notice; and
(b) sets out particulars of:
(i) the licensee's right to claim compensation for the resumption; and
(ii) how a claim is to be made; and
(c) includes the form, approved by the ACMA, on which such a claim is to be made.
1 The basis on which compensation is payable
(1) If a spectrum licence or a part of a spectrum licence is resumed under section 91, the compensation payable to the licensee under section 93 and this Part is compensation for:
(a) the market value of the licence, or the part of the licence, on the day before the day on which the pre - acquisition declaration was published; and
(b) any loss, injury or damage suffered, or expense reasonably incurred, as a direct, natural and reasonable consequence of the resumption.
(2) The market value of the licence, or the part of the licence, at a particular time is the amount that would have been paid for it if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer.
(3) If the market value is assessed upon the basis that the licence, or the part of the licence, had potential to be used for a purpose other than the purpose for which it was used at the relevant time, compensation is not payable in respect of any loss or damage that would necessarily have been suffered, or expense that would necessarily have been incurred, in realising that potential.
(4) If:
(a) a pre - acquisition declaration is published for resumption of a spectrum licence or a part of a spectrum licence; and
(b) the pre - acquisition declaration is revoked before the resumption takes place;
the compensation payable to the licensee under section 93 and this Part is compensation for any loss, injury or damage suffered, or expense reasonably incurred, as a direct, natural and reasonable consequence of the publication of the pre - acquisition declaration.
2 Amounts of compensation payable
(1) The amount of compensation payable to the licensee is:
(a) the amount of compensation agreed by the ACMA under paragraph 4(a); or
(b) the amount of compensation specified in an offer of the ACMA that is accepted by the licensee under subclause 6(1); or
(c) the amount of compensation determined by the AAT under clause 7; or
(d) the amount of compensation determined by the Federal Court under clause 8; or
(e) the amount of compensation determined by an independent valuer under clause 9;
whichever is applicable.
(2) Once the amount of compensation is fixed under one of the paragraphs in subclause (1), the other paragraphs are no longer capable of application in fixing the amount of compensation.
The licensee may claim compensation by giving to the ACMA a written claim in a form approved by the ACMA.
4 Consideration of claims by the ACMA
The ACMA must consider the claim and, by written notice given to the licensee:
(a) agree to pay the amount of compensation specified in the claim; or
(b) offer to pay an amount of compensation different to the amount specified in the claim; or
(c) reject the claim.
5 Deadline for consideration of claims
(1) The ACMA must give the notice to the licensee within 42 days, or such longer period as is agreed between the ACMA and the licensee, after receiving the claim.
(2) The ACMA is taken to have rejected the claim if it has not informed the licensee of its decision on the claim before the end of the period within which the notice must be given.
6 Consideration of offers by licensees
(1) If the ACMA offers under paragraph 4(b) to pay an amount of compensation to the licensee, the licensee may, in writing, accept the offer at any time during the period of 42 days, or such longer period as is agreed between the ACMA and the licensee, after the offer was made.
(2) The licensee is taken to have rejected the offer if:
(a) during the period during which the licensee may accept the offer, the licensee informs the ACMA, in writing, that the offer is rejected; or
(b) the period ends and the licensee has not accepted the offer.
7 Determination of compensation by the AAT
(1) Subject to subclause (5), if:
(a) under paragraph 4(c), the ACMA has rejected the claim; or
(b) under subclause 5(2), the ACMA is taken to have rejected the claim; or
(c) under subclause 6(2), the licensee is taken to have rejected an offer by the ACMA;
the licensee may apply to the AAT to review the ACMA's decision to reject the claim, or make the offer, as the case requires.
(2) Subject to subclauses (3) and (4), the Administrative Appeals Tribunal Act 1975 applies to the application.
(3) Section 29 of that Act applies to the application as if the prescribed time for lodging the application with the AAT were the period of 90 days beginning on the day on which the ACMA rejected the claim, or the ACMA's offer was taken to be rejected, as the case requires.
(4) The AAT must make a decision on the application determining the amount of compensation.
(5) An application cannot be made to the AAT if an application has already been made under clause 8 to the Federal Court to determine the amount of compensation.
8 Determination of compensation by the Federal Court
(1) Subject to subsection (3), if:
(a) under paragraph 4(c), the ACMA has rejected the claim; or
(b) under subclause 5(2), the ACMA is taken to have rejected the claim; or
(c) under subclause 6(2), the licensee is taken to have rejected an offer by the ACMA;
the licensee may apply to the Federal Court to determine the amount of compensation to which the licensee is entitled.
(2) On the application, the Federal Court must determine the amount of compensation.
(3) An application cannot be made to the Federal Court if an application has already been made under clause 7 to the AAT to review the ACMA's decision to reject the claim or to make the offer, as the case requires.
9 Determination of compensation by independent valuers
(1) Subject to subclause (4), the ACMA and the licensee may agree on appointment of an independent valuer to determine the amount of compensation.
(2) Clauses 3 to 8 no longer apply once an independent valuer is appointed under the agreement.
(3) The independent valuer must determine the amount of compensation.
(4) Agreement on appointment of an independent valuer has no effect if an application related to the amount of compensation has already been made to the AAT under clause 7 or to the Federal Court under clause 8.