Commonwealth Numbered Regulations - Explanatory Statements
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LEGISLATION (EXEMPTIONS AND OTHER MATTERS) AMENDMENT (SUNSETTING EXEMPTIONS) REGULATIONS 2017 (F2017L01093)
Legislation (Exemptions and Other Matters) Amendment (Sunsetting Exemptions) Regulations 2017
EXPLANATORY STATEMENT
Select Legislative Instrument No. [ ], 2017
Issued under the Authority of the Attorney-General
OUTLINE
The Legislation Act 2003 establishes a comprehensive regime for the publication of Commonwealth Acts and instruments. It also provides for the registration, tabling, parliamentary scrutiny and sunsetting (automatic repeal) of Commonwealth legislative instruments, and establishes an authoritative, complete and accessible register of those instruments, including compilations and explanatory statements.
Section 62 of the Legislation Act provides the Governor-General with the power to make regulations prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to that Act.
Subsections 44(2) and 54(2) of the Legislation Act provide that instruments prescribed by regulation for the purposes of paragraphs 44(2)(b) and 54(2)(b) are not subject to disallowance and sunsetting respectively. Paragraph 8(6)(b) of the Legislation Act provides that instruments prescribed by regulation for the purposes of that paragraph are not legislative instruments.
The Legislation (Exemptions and Other Matters) Regulation 2015 (the Principal Regulation), made under section 62 of the Legislation Act, sets out exemptions from legislative instrument status, disallowance by the Parliament and sunsetting for instrument classes and particular instruments.
Schedule 1 of this Regulation amends the Principal Regulation to provide for and clarify exemptions from sunsetting for particular instruments.
The Legislation Act does not specify any conditions that must be fulfilled before the power to make this Regulation may be exercised.
However, there is a long standing principle that sunsetting exemptions should only be granted where the instrument is not suitable for regular review under the Legislation Act. This principle is underpinned by five criteria:
* the rule-maker has been given a statutory role independent of the Government, or is operating in competition with the private sector;
* the instrument is designed to be enduring and not subject to regular review;
* commercial certainty would be undermined by sunsetting;
* the instrument is part of an intergovernmental scheme; or
* the instrument is subject to a more rigorous statutory review process.
Each exemption has been requested by the relevant portfolio minister with responsibility for the affected instruments. Each instrument proposed for exemption was analysed against the above criteria and found to meet at least one criterion.
PROCESSES FOR REVIEW OF THIS REGULATION
The Regulation is subject to tabling and disallowance under Part 2 of Chapter 3 of the Legislation Act, and will cease as if repealed on the day after the last of its provisions commence.
Regulatory impact analysis
Before the Principal Regulation was made, its expected impact was assessed using the Preliminary Assessment tool approved by the Office of Best Practice Regulation (OBPR). That assessment indicated that it will have no or low impact on business, individuals and the economy. This assessment has been confirmed by the OBPR and granted a standing exemption from Regulatory impact analysis requirements (OBPR reference 17635).
Statement of compatibility with human rights obligations
Before the Regulation was made, its impact on human rights was assessed using tools and guidance published by the Attorney-General's Department. The Regulation will make technical amendments to the Principal Regulation which will have no impact on the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. This Regulation is compatible with human rights as it does not raise any human rights issues.
Consultation before making
Before this Regulation was made, the Attorney-General considered the general obligation to consult imposed by section 17 of the Legislation Act. The Attorney-General was satisfied that consultation was appropriate and reasonably practicable to be undertaken. Each exemption is made at the request of the minister with portfolio responsibility for the affected instrument(s). The following agencies were consulted and support the proposed form of the amendment: the Australian Communications and Media Authority, the Department of the Environment and Energy, IP Australia and the Treasury.
OTHER ISSUES
Matter incorporated by reference
The Regulation does not apply, adopt or incorporate other matters by reference.
More information
An explanation of the provisions and the Schedules to the Regulation is provided in Attachment A.
ATTACHMENT A
NOTES ON PROVISIONS AND SCHEDULES
Section 1 Name
This section provides that the title of this Regulation is the Legislation (Exemptions and Other Matters) Amendment (Sunsetting Exemptions) Regulations 2017 (the Regulation).
Section 2 Commencement
This section provides for the whole of the Regulation to commence on the day after it is registered on the Federal Register of Legislation.
Section 3 Authority
This section provides that the Regulation is made under the Legislation Act 2003.
Section 4 Schedules
This section provides that each instrument that is specified in a Schedule to the Regulation is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Regulation has effect according to its terms.
Schedule 1 Amendments
Schedule 1 of the Regulation amends section 12 of the Principal Regulation to insert new exemptions. Section 12 provides for particular instruments that are not subject to sunsetting.
Item 1 inserts new item 9B into the table under section 12 of the Principal Regulation. New item 9B provides an exemption from sunsetting for a regulation made under the Australian Securities and Investments Commission Act 2001.
The Australian Securities and Investments Commission Act is based on the Corporations Agreement 2002 (the Corporations Agreement) between the Commonwealth, States and Territories. The Australian Securities and Investments Commission Act is concerned with establishing the Australian Securities and Investments Commission (ASIC) to regulate corporate conduct and the provision of financial services and products. The Act facilitates the intergovernmental Corporations Agreement which is supported by a referral of powers to the Commonwealth.
Regulations made under the Australian Securities and Investments Commission Act are integral to the Corporations Agreement. These Regulations cannot be used for any other purpose other than to support the legislative framework underpinning ASIC as the relevant regulator under the Corporations Agreement. Under the terms of the Corporations Agreement, the law giving effect to the Corporations Agreement cannot be amended without agreement from or notifying the Legislative and Governance Forum on Corporations. The Australian Securities and Investments Commission Act and regulations made under that Act are also integral to the intergovernmental schemes on business names registration and national consumer credit law which refer the supervision of those intergovernmental schemes to ASIC.
Accordingly, it is appropriate to exempt regulations made under the Australian Securities and Investments Commission Act from sunsetting on the basis that they are part of intergovernmental schemes.
Item 2 inserts new item 13A into the table under section 12 of the Principal Regulation. New item 13A provides an exemption from sunsetting for each of the following:
* a rule made under section 26 of the Business Names Registration Act 2011;
* a determination made under section 27 or 28 of that Act; and
* a regulation made under that Act.
The Business Names Registration Act is based on the Council of Australian Governments Business Names Agreement (the Business Names Agreement), an intergovernmental scheme. The Business Names Registration Act implements the Business Names Agreement, by facilitating the establishment and operation of that scheme. The scheme is based on a referral of powers to the Commonwealth, and provides for a co-existence of state and territory legislation and business name registers. It allows for the concurrent operation of related state and territory registration regimes.
Regulations made under the Business Names Registration Act support the Business Names Agreement. Under the terms of the Business Names Agreement, the law giving effect to the Business Names Agreement cannot be amended without agreement from the Legislative and Governance Forum on Corporations (except for minor technical changes). Accordingly, it is appropriate that regulations made under the Business Names Registration Act are exempt from sunsetting on the basis that they are part of an intergovernmental scheme.
Sections 26, 27 and 28 of the Business Names Registration Act provide for the Minister to restrict the use of certain types of names, words and expressions by businesses. The Minister is able to do this through a rule under section 26 or a determination under section 27 or 28 of the Business Names Registration Act. These instruments support the Business Names Agreement by restricting the use of certain names and allowing certain businesses to use a restricted name, and cannot be amended without agreement from the Legislative and Governance Forum on Corporations (except for minor technical changes).
Accordingly, it is appropriate that these instruments are exempt from sunsetting on the basis that they are part of an intergovernmental scheme.
Item 3 adds new paragraphs (d), (e), and (f) to item 16 in the table under section 12 of the Principal Regulation. New paragraph (d) provides an exemption from sunsetting for the Australian Competition and Consumer Commission (Allowances) Regulations. New paragraph (e) provides an exemption from sunsetting for the Competition and Consumer Regulations 2010. New paragraph (f) provides an exemption from sunsetting for the Trade Practices (Removal of Exceptions) Regulations.
Instruments referred to in these paragraphs give effect to a number of intergovernmental agreements, including the Intergovernmental Agreement for the Australian Consumer Law, the Competition Principles Agreement, the Conduct Code Agreement, and the Australian Energy Market Agreement.
Australian Competition and Consumer Commission (Allowances) Regulations
The Australian Competition and Consumer Commission (Allowances) Regulations provides for allowances for members of the Australian Competition and Consumer Commission, the independent statutory authority responsible for enforcing the Competition and Consumer Act 2010 which gives effect to various intergovernmental agreements. These include: the Intergovernmental Agreement for the Australian Consumer Law, the Competition Principles Agreement, the Conduct Code Agreement, and the Australian Energy Market Agreement.
Accordingly, it is appropriate to exempt the Competition and Consumer Commission (Allowances) Regulations from sunsetting, as they are part of the various intergovernmental schemes underpinning the Competition and Consumer Act.
Competition and Consumer Regulations 2010
The Competition and Consumer Regulations, made under the Competition and Consumer Act, give effect to various intergovernmental agreements. These include: the Intergovernmental Agreement for the Australian Consumer Law, the Competition Principles Agreement, the Conduct Code Agreement, and the Australian Energy Market Agreement.
Schedule 2 to the Competition and Consumer Act contains the Australian Consumer Law, which is made pursuant to the Intergovernmental Agreement for the Australian Consumer Law. The Australian Consumer Law and the regulations made under it, which are primarily contained in the Competition and Consumer Regulations, are enacted in each jurisdiction. Under Part XI of the Competition and Consumer Act they are applied as a law of the Commonwealth. Before regulations may be made to give effect to certain provisions of Schedule 2, the regulation making power in the Competition and Consumer Act requires the Commonwealth to consider State and Territory laws. This is in recognition of the State and Territory legislation that enables and complements the Australian Consumer Law.
The result of the enabling legislation that gives effect to these intergovernmental agreements is that the majority of regulations made under sections 172 and 139G of the Competition and Consumer Act operate with force of law in each jurisdiction. The majority of these regulations are in the Competition and Consumer Regulations. Under the Intergovernmental Agreement for the Australian Consumer Law and the Conduct Code Agreement the Commonwealth must consult with the States and Territories prior to any legislative change, including the repeal of provisions.
Accordingly, it is appropriate to exempt the Competition and Consumer Regulations from sunsetting, as they are integral to the operation of the various intergovernmental schemes that establish the Australian Consumer Law.
Trade Practices (Removal of Exceptions) Regulations
Trade Practices (Removal of Exceptions) Regulations relate to exemptions from Part IV of the Competition and Consumer Act which gives effect to various intergovernmental agreements. These include: the Competition Principles Agreement and the Conduct Code Agreement. Accordingly, it is appropriate to exempt the Trade Practices (Removal of Exceptions) Regulations from sunsetting, as they operate as part of the various intergovernmental schemes that underpin the Competition and Consumer Act.
Item 4 adds new paragraph (d) to item 18 in the table under section 12 of the Principal Regulation. New paragraph (d) provides an exemption from sunsetting for the Corporations Regulations 2001.
The Corporations Regulations, made under the Corporations Act 2001, prescribe matters relating to corporations, securities, the futures industry, financial products and services, and other purposes. The Corporations Regulations are integral to the Corporations Agreement 2002, an intergovernmental scheme between the Commonwealth, States and Territories. They are reliant on a referral of power from the States. Ordinarily, amendments to the Corporations Regulations must be approved by the Legislative and Governance Forum for Corporations. The sunsetting of the Corporations Regulations would bypass this requirement, contrary to the Commonwealth's obligations under the Corporations Agreement.
The Corporations Regulations are also integral to long-term decision making by the relevant stakeholders. Subjecting the regulations to the sunsetting regime would create significant commercial uncertainty and impose a heavy regulatory burden on stakeholders. Additionally, the Corporations Regulations are currently being reviewed as part of other reform processes (including implementation of the recommendations of the Financial System Inquiry). Due to the size of the Corporations Regulations, the current approach to updating the Regulations to ensure they remain fit for purpose is to review and reform discrete sections of the Regulations on a thematic basis. These amendments have been supported by extensive consultation and often follow a comprehensive public review. This ensures that there is strong stakeholder engagement in the review process that enables stakeholders to more easily adapt to any change, as the reforms are limited to a particular set of issues each time.
Accordingly, it is appropriate to exempt the Corporations Regulations from sunsetting.
Item 5 inserts new items 18A and 18B into the table under section 12 of the Principal Regulation. New item 18A provides an exemption from sunsetting for a regulation made under the Corporations (Fees) Act 2001. New item 18B provides an exemption from sunsetting for a regulation made under the Corporations (Review Fees) Act 2003.
The Corporations (Fees) Act enables the imposition of fees and taxes for things done under the Corporations Act, and is part of the Corporations Agreement 2002, an intergovernmental scheme between the Commonwealth, States and Territories. Regulations made under the Corporations (Fees) Act support the intergovernmental scheme by imposing fees for chargeable matters under the Corporations Act, as enabled by the Corporations (Fees) Act.
The Corporations (Review Fees) Act enables the imposition of fees and taxes in respect of certain prescribed review dates and is part of the Corporations Agreement 2002, an intergovernmental scheme between the Commonwealth, States and Territories. Regulations made under the Corporations (Review Fees) Act support the intergovernmental scheme by imposing fees for chargeable matters under the Corporations Act, as enabled by the Corporations (Review Fees) Act.
Accordingly, it is appropriate that regulations made under the Corporations (Fees) Act and the Corporations (Review Fees) Act are exempt from sunsetting on the basis that they are part of intergovernmental schemes.
Item 6 inserts new item 22B into the table under section 12 of the Principal Regulation. New item 22B provides an exemption from sunsetting for a regulation made under the Designs Act 2003.
The Designs Act and the regulations made under that Act provide the legislative basis for Australia's designs system. Regulations made under the Designs Act provide the details necessary to implement the Designs Act. This includes administration of the Australian Designs Office, maintaining the designs register, making and processing applications for registering designs and charging related fees.
Design rights can endure for up to 10 years and may deter imitators, which enables Australian designers to commercialise designs and to continue creating fresh designs for the benefit of consumers. Investment in modern design helps manufacturers gain a competitive edge, and influences consumer choice in products where aesthetic input is significant, or where appearance suggests better functions. By giving designers commercial certainty about being able to protect their designs against infringement, the design rights legislation provides incentives for Australians to invest time and money in creating new and original designs. This leads to new products that add value for Australian consumers.
Without the ability to predict changes to these design rights, designers, investors and businesses are exposed to significant risks. This undermines commercial certainty. Accordingly, it is appropriate to exempt regulations made under the Design Act from sunsetting.
Item 7 inserts "270B, " after "248, " in item 24 in the table under section 12 of the Principal Regulation. This item provides an exemption from sunsetting for an instrument made under section 270B of the Environment Protection and Biodiversity Conservation Act 1999. Item 24 of the table provides for exemptions for multiple instruments made under the Environment Protection and Biodiversity Conservation Act.
Section 270B of the Environment Protection and Biodiversity Conservation Act provides for the making or adoption of threat abatement plans. Threat abatement plans provide for the research, management and any other actions necessary to reduce the impact of a listed key threatening process on native species and ecological communities. These plans are subject to a five yearly review process, which is prescribed in section 279 of the Environment Protection and Biodiversity Conservation Act. As instruments made under section 270B of the Environment Protection and Biodiversity Conservation Act are subject to a more stringent statutory review process than the review processes in the Legislation Act, it is appropriate to exempt these instruments from sunsetting.
Item 8 omits "341G or 344", and substitutes "341G, 344 or 517", in item 24 in the table under section 12 of the Principal Regulation. This item provides an exemption from sunsetting for an instrument made under section 517 of the Environment Protection and Biodiversity Conservation Act.
Section 517 of the Environment Protection and Biodiversity Conservation Act provides that the Minister may determine that a distinct population of biological entities is a species for the purposes of the Act.
Determinations made under section 517 are designed to be enduring and not subject to regular review, as the need to consider such biological entities as species may endure regardless of any statutory deadline. The effect of such a determination is that the biological entity is able to be included in the threatened species list under section 178 of the Environment Protection and Biodiversity Conservation Act, the migratory species list under section 209 of the Environment Protection and Biodiversity Conservation Act, and the marine species list under section 248 of the Environment Protection and Biodiversity Conservation Act. By being included on any of these lists, the biological entity is afforded regulatory protection under the Environment Protection and Biodiversity Conservation Act. If determinations made under section 517 of the Environment Protection and Biodiversity Conservation Act were subjected to the sunsetting regime, distinct populations of biological entities that have been determined to be species under section 517 would no longer be considered to be a species for the purposes of the Environment Protection and Biodiversity Conservation Act. This would mean that a biological entity could be left on one of the lists referred to above even though it was no longer classified as a species for the purposes of the Environment Protection and Biodiversity Conservation Act. The determinations under section 517 of the Act that a distinct population of biological entities is a species are therefore designed to be enduring and not subject to regular review, as this would undermine the accuracy of the lists made under sections 178, 209 or 248 of the Environment Protection and Biodiversity Conservation Act. An exemption for the determinations made under section 517 of the Act is consistent with the existing exemptions provided for the lists of threatened species, migratory species, and marine species under the Act.
Accordingly it is appropriate to exempt instruments made under section 517 of the Environment Protection and Biodiversity Conservation Act from sunsetting.
Item 9 inserts new item 34A into the table under section 12 of the Principal Regulation. New item 34A provides an exemption from sunsetting for a regulation made under item 84 of Schedule 4 to the Intellectual Property Laws Amendment Act 2015.
Item 84 of Schedule 4 of the Intellectual Property Laws Amendment Act concerns the transitional arrangements for the registration as trade marks attorneys in Australia for individuals who were, before the commencement of the item, registered patent attorneys under the law of New Zealand. An application by such an individual must be in accordance with the regulations, prescribed by paragraph (4) of Item 84 of Schedule 4 of the Intellectual Property Laws Amendment Act. Subjecting such regulations to the sunsetting regime would undermine commercial certainty, patent attorneys on the former New Zealand Register of Patent Attorneys rely on these provisions to give certainty about transitional professional registration as Australian trade marks attorneys. In addition, this instrument is part of an intergovernmental scheme with the New Zealand Government as part of the Bilateral Arrangement between the Government of Australia and the Government of New Zealand relating to Trans-Tasman Regulation of Patent Attorneys, signed in March 2013.
Accordingly, it is appropriate to exempt these regulations from sunsetting.
Item 10 inserts new items 42AA and 42AB into the table under section 12 of the Principal Regulation. New item 42AA provides an exemption from sunsetting for a regulation made under the National Consumer Credit Protection Act 2009. New item 42AB provides an exemption from sunsetting for a regulation made under the National Consumer Credit Protection (Fees) Act 2009.
The National Consumer Credit Protection Act is based on the Council of Australian Governments National Credit Law Agreement 2008 (the Credit Agreement). Under the terms of the Credit Agreement, the law cannot be amended without agreement from the Legislative and Governance Forum on Corporations. The National Consumer Credit Protection Act is solely concerned with implementing the Credit Agreement. The entire Act facilitates a national system for regulating the provision of credit under the intergovernmental scheme. The scheme itself is based on a referral of powers to the Commonwealth, provides for a co-existence of state and territory legislation, and provides for the concurrent operation of related state and territory laws.
Regulations made under the National Consumer Credit Protection Act are integral to the intergovernmental scheme as they prescribe details of the regulatory regime that is part of the Credit Agreement.
The National Consumer Credit Protection (Fees) Act is also based on the Council of Australian Governments National Credit Law Agreement 2008 (the Credit Agreement). The Act enables the imposition of fees and taxes in respect of certain things done under the National Consumer Credit Protection Act. Regulations made under the Act are integral to the intergovernmental scheme as they impose fees for chargeable matters as enabled under the National Consumer Credit Protection (Fees) Act.
Accordingly, it is appropriate to exempt regulations under the National Consumer Credit Protection (Fees) Act and the National Consumer Credit Protection Act from sunsetting.
Item 11 inserts new item 45AA into the table under section 12 of the Principal Regulation. New item 45AA provides an exemption from sunsetting for a regulation made under the Olympic Insignia Protection Act 1987.
The Olympic Insignia Protection Act protects the Olympic insignia from use by persons not connected with the Olympic movement. The Act was passed to resolve uncertainty about the ownership of copyright, design and trade marks in relation to protected Olympic insignia. The Act invests the Australian Olympic Committee with ownership of the protected insignia and provides that the insignia are not to be used in trade or commerce unless a licence for such use has been granted by the Committee.
Regulations made under the Olympic Insignia Protection Act are critical to its operation, through implementing particular aspects of the Act. The regulations provide the fees that apply to register and extend the protection period for an Olympic design, the particulars to be included on the Register of Olympic Designs, licenses for use of protected Olympic expressions, and times for public inspection of that Register. Regulations made under the Olympic Insignia Protection Act provide commercial certainty to the Australian Olympic Committee in relation to its ability to predict private sector sponsorship revenue. This ongoing benefit gives commercial sponsors the confidence to invest in the Australian Olympic Committee on a long term basis, which in turn gives the Australian Olympic Committee greater certainty in budgeting and business planning.
Accordingly, it is appropriate to exempt regulations made under the Olympic Insignia Protection Act from sunsetting.
Item 12 inserts new item 48A into the table under section 12 of the Principal Regulation. New item 48A provides an exemption from sunsetting for a regulation made under the Patents Act 1990.
The Patents Act, and regulations made under that Act, provide the legislative basis for Australia's patents system. Regulations made under the Patents Act provide the details necessary to implement the Patents Act. This includes, administration of the Australian Patent Office, maintaining the patents register, making and processing applications for granting standard or innovation patents, charging related fees, registering patents attorneys, and prescribing their rights of practice.
Most types of Australian patents may be maintained for up to 20 years, although certain pharmaceutical patents may be maintained for up to 25 years. This provides inventors an opportunity to recover the costs of developing their inventions, and to make a return on the investment in research and development. Most investment decisions are made in relation to new inventions with a view to rights that are currently presumed to outlast the sunsetting period of ten years. Subjecting the regulations to the sunsetting regime will undermine the ability of businesses to predict their ongoing intellectual property rights and can expose them to significant risk. This undermines commercial certainty. Accordingly, it is appropriate to exempt regulations made under the Patents Act from sunsetting.
Item 13 inserts new item 50A into the table under section 12 of the Principal Regulation. New item 50A provides an exemption from sunsetting for a regulation under the Plant Breeder's Rights Act 1994.
The Plant Breeder's Rights Act and regulations made under that Act provide the legislative basis for Australia's plant breeder's rights system. Plant breeder's rights are exclusive commercial rights in relation to a registered variety of plant.
Regulations made under the Plant Breeder's Rights Act provide the details necessary to implement the Plant Breeder's Rights Act. This includes administration of the Australian Plant Breeder's Rights Office, maintaining the plant varieties register, making and processing applications for granting plant breeder's rights, and charging related fees.
Plant Breeder's rights encourage plant breeding innovation, and lead to the creation of a large and growing pool of new plant varieties that become freely available to the community once the protection period lapse. Depending on the plant species, plant breeder's rights may be held for up to 25 years.
Subjecting the regulations to the sunsetting regime will undermine the ability of businesses to predict their ongoing intellectual property rights and can expose them to significant risk. This undermines commercial certainty. Accordingly, it is appropriate to exempt regulations made under the Plant Breeder's Rights Act from sunsetting.
Item 14 inserts new paragraph (aa) into item 55 in the table under section 12 of the Principal Regulation. New paragraph (aa) provides an exemption from sunsetting for an instrument prepared under subsection 44A(1) of the Radiocommunications Act 1992, or a variation under of such an instrument under subsection 44A(6) of that Act.
Subsection 44A of the Radiocommunications Act provides that before issuing the first digital radio multiplex transmitter licence for a licence area the Australian Communications and Media Authority (ACMA) must prepare a Digital Radio Channel Plan (DRCP). These plans:
• allot frequency channels in relation to that area for digital radio multiplex transmitter licensees;
• reserve frequency channels in that area for national broadcasters;
• determine the type and number of digital radio multiplex transmitter licences to be issued in that area; and
• determine the technical specifications for each multiplex transmitter in that area.
DRCPs made under subsection 44A of the Radiocommunications Act, and the variations to these plans made under subsection 44A(6) of that Act, form an integral part of the regulatory framework that allows for the issuing of digital radio multiplex transmitter licences. Digital radio multiplex transmitter licences remain in force for 15 years, and therefore it is appropriate for DRCPs to endure. DRCPs are designed to have long term application and are intended to be conducive to stability and predictability for the digital radio broadcasting industry. There are minor adjustments made to the DRCPs from time to time, usually in response to requests from digital radio multiplex transmitter licensees seeking amendments of the technical specifications of related transmitters. For example, this may include seeking the insertion of technical specifications for co-channel transmitters or by varying the output radiation patterns of licensed transmitters. Such amendments to technical specifications do not affect the broader operation or enduring nature of the DRCPs. These minor amendments are also designed to endure, well beyond the sunsetting period of ten years.
Subjecting DRCPs or variations to DRCPs to the sunsetting regime would reduce the stability and predictability of the regulatory framework underlying the long term investments and other long term planning undertaken by participants in the digital radio broadcasting sector. This undermines commercial certainty for the digital radio broadcasting sector and its customers.
Additionally, ACMA is an independent statutory authority established under section 6 of the Australian Communications and Media Authority Act 2005, and exempting these instruments from sunsetting supports its independent functions.
Accordingly, it is appropriate to exempt the instruments made under subsection 44A(1) of the Radiocommunications Act, and variations of such instruments under subsection 44A(6) of that Act, from sunsetting.
Item 15 inserts new item 63A into the table under section 12 of the Principal Regulation. New item 63A provides an exemption from sunsetting for a regulation under the Trade Marks Act 1995.
Regulations made under the Trade Marks Act provide the details necessary to implement the Trade Marks Act. This includes administration of the Trade Marks Office, maintaining the trade marks register, making and processing applications for registering trade marks, charging related fees, registering trade marks attorneys and prescribing their rights of practice.
Registering a trade mark gives one exclusive rights which can be renewed indefinitely to commercially use, license or sell goods or services bearing that trade mark within the class of goods and services it is registered under. As a trade mark registration can be held in perpetuity, and an initial Australian registration is valid for 10 years, all Australian trade marks have a life of at least 10 years. However, in practice, over a third of Australian trade marks are held for 20 years or longer. These regulations afford registered trade mark owners a degree of commercial certainty by providing a predictable level of rights and protections in perpetuity.
Without the ability to predict changes to these intellectual property rights, investors and businesses are exposed to significant risks. This undermines commercial certainty. Accordingly, it is appropriate to exempt regulations made under the Trade Marks Act from sunsetting.