Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Merger of the SMA and the ACA
1 Paragraph 4(e)
Omit all the words after "enforcement of this", substitute "Act."
2 Section 5
Insert:
"ACA" means the Australian Communications Authority.
3 Section 5 (definition of SMA )
Repeal the definition.
4 Subsection 231(2)
Repeal the subsection, substitute:
(2) Part 5.1 provides for the ACA to delegate certain powers to authorities of the Commonwealth.
5 Part 5.1 (heading)
Repeal the heading, substitute:
6 Division 1 of Part 5.1 (heading)
Repeal the heading.
7 Sections 232, 233, 234, 235, 236 and 237
Repeal the sections.
8 Subsection 238(1)
Repeal the subsection, substitute:
(1) The powers conferred on the ACA by this section are in addition to the powers conferred by section 49 of the Australian Communications Authority Act 1997 .
9 Subsections 238(2) and (3)
Omit "Spectrum Manager may", substitute "ACA may, by writing,".
10 Division 2 of Part 5.1
Repeal the Division.
11 General amendments
The following provisions of the Radiocommunications Act 1992 are amended by omitting "SMA" (wherever occurring), and "SMA's" (wherever occurring) and substituting "ACA" or "ACA's" respectively:
(a) Chapter 1 (other than the definition of SMA in section 5);
(b) Chapter 2;
(c) Chapter 3 (other than paragraph 101(1)(b));
(d) Chapter 4 (other than subsections 163(2) and 167(3) and sections 183 and 184);
(e) Chapter 5 (other than sections 232, 233, 234, 235, 236 and 237, subsection 238(1) and Division 2 of Part 5.1);
(f) Chapter 6;
(g) the Schedule.
Note: The headings to the sections of the Radiocommunications Act 1992 are altered by omitting " SMA " (wherever occurring) and " SMA's " (wherever occurring) and substituting " ACA " or " ACA's " respectively.
Part 2 -- Consequential amendments
12 Paragraphs 7(2)(b) and (3)(b)
Omit " Telecommunications Act 1991 ", substitute " Telecommunications Act 1997 ".
13 Paragraph 67(a)
Omit "293", substitute "53 of the Australian Communications Authority Act 1997 ".
14 Subparagraph 107(1)(c)(i)
Omit "293", substitute "53 of the Australian Communications Authority Act 1997 ".
15 Subparagraph 109(1)(b)(i)
Omit "293", substitute "53 of the Australian Communications Authority Act 1997 ".
16 Paragraph 146(2)(b)
Omit "293", substitute "53 of the Australian Communications Authority Act 1997 ".
17 Subparagraph 157(2)(d)(iii)
Repeal the subparagraph, substitute:
(iii) carriage services (within the meaning of the Telecommunications Act 1997 ); or
18 Subparagraph 158(2)(d)(iii)
Repeal the subparagraph, substitute:
(iii) carriage services (within the meaning of the Telecommunications Act 1997 ); or
19 Paragraph 263(1)(b)
Omit "293", substitute "53 of the Australian Communications Authority Act 1997 ".
20 Section 293
Repeal the section.
21 Transitional--charge determinations
(1) This item applies to a determination that:
(a) was in force under section 293 of the Radiocommunications Act 1992 immediately before the commencement of this item; and
(b) related to a matter in relation to which expenses are incurred by the SMA under that Act or under regulations under that Act.
(2) The Australian Communications Authority Act 1997 has effect, after the commencement of this item, as if:
(a) the determination had been made by the ACA under section 53 of that Act immediately after the commencement of this item; and
(b) each reference in the determination to the SMA were a reference to the ACA.
(3) This item does not prevent the variation or revocation of the determination.
22 Subsection 258(2)
Repeal the subsection, substitute:
(2) The ACA must make copies of the discussion paper available at each of the ACA's offices. The ACA may charge a reasonable price for supplying copies of the discussion paper in accordance with this subsection.
(3) The ACA may otherwise publish the discussion paper, including in electronic form. The ACA may charge for supplying a publication under this subsection in accordance with a determination under section 53 of the Australian Communications Authority Act 1997 .
23 At the end of section 259
Add:
(2) For the purposes of subsection ( 1), the ACA is taken not to have provided a reasonable opportunity to make submissions unless there is a period of at least 28 days during which the submissions could be made.
24 Section 261
Repeal the section, substitute:
(1) The ACA may hold hearings for the purposes of a public inquiry.
(2) Hearings may be held, for example:
(a) in order to receive submissions about the matter to which the inquiry relates; or
(b) in order to provide a forum for public discussion of issues relevant to that matter.
(3) At a hearing, the ACA may be constituted by:
(a) a member or members determined in writing by the Chairman for the purposes of that hearing; or
(b) if the functions and powers of the ACA in relation to the hearing have been delegated to a person under section 49 of the Australian Communications Authority Act 1997 --that person.
(4) The Chairman is to preside at all hearings at which he or she is present.
(5) If, at a hearing:
(a) the ACA is not constituted by a delegate referred to in paragraph ( 3)(b); and
(b) the Chairman is not present at the hearing;
the member specified, in an instrument under paragraph ( 3)(a), as the member who is to preside at the hearing is to preside.
(6) The ACA may regulate the conduct of proceedings at a hearing as it thinks appropriate.
261A Hearing to be in public except in exceptional cases
(1) This section applies to a hearing conducted under this Part.
(2) The basic rule is that the hearing must take place in public.
(3) However, the hearing, or a part of the hearing, may be conducted in private if the ACA is satisfied that:
(a) evidence that may be given, or a matter that may arise, during the hearing or a part of the hearing is of a confidential nature; or
(b) hearing a matter, or part of a matter, in public would not be conducive to the due administration of this Act.
(4) If the hearing is to be conducted in public, the ACA must give reasonable public notice of the conduct of the hearing.
261B Confidential material not to be published
(1) This section applies to a hearing conducted under this Part.
(2) If:
(a) the hearing, or a part of the hearing, takes place in public; and
(b) the ACA is of the opinion that:
(i) evidence or other material presented to the hearing; or
(ii) material in a written submission lodged with the ACA;
is of a confidential nature;
the ACA may order that:
(c) the evidence or material not be published; or
(d) its disclosure be restricted.
(3) A person must not, without reasonable excuse, fail to comply with an order under subsection ( 2).
(4) A person who intentionally or recklessly contravenes subsection ( 3) is guilty of an offence punishable on conviction by a fine not exceeding 50 penalty units.
Note: See also sections 4AA and 4B of the Crimes Act 1914 .
261C Direction about private hearings
(1) This section applies to a hearing conducted under this Part.
(2) If the hearing, or a part of the hearing, takes place in private, the ACA:
(a) must give directions as to the persons who may be present at the hearing or the part of the hearing; and
(b) may give directions restricting the disclosure of evidence or other material presented at the hearing or the part of the hearing.
(3) A person must not, without reasonable excuse, fail to comply with a direction under subsection ( 2).
(4) A person who intentionally or recklessly contravenes subsection ( 3) is guilty of an offence punishable on conviction:
(a) in the case of a direction under paragraph ( 2)(a)--by a fine not exceeding 10 penalty units; or
(b) in the case of a direction under paragraph ( 2)(b)--by a fine not exceeding 50 penalty units.
Note: See also sections 4AA and 4B of the Crimes Act 1914 .
(1) If the ACA holds a public inquiry, the ACA must prepare a report setting out its findings as a result of the inquiry.
(2) If the inquiry was held because of a direction given by the Minister under section 256, the ACA must give a copy of the report to the Minister.
(3) If the inquiry was held otherwise than because of a direction given by the Minister under section 256, the ACA must publish the report.
(4) The ACA is not required to include in a report any material:
(a) that is of a confidential nature; or
(b) the disclosure of which is likely to prejudice the fair trial of a person; or
(c) that is the subject of an order or direction under section 261B or 261C.
Part 4 -- Standards and other technical regulation
25 Section 5
Insert:
"apply" , in relation to a label, has a meaning affected by section 9A.
26 Section 5
Insert:
"label" has a meaning affected by section 9A.
27 Section 5 (definition of compliance certificate )
Repeal the definition.
28 Section 5 (definition of recognised testing authority )
Repeal the definition.
29 After section 9
Insert:
(1) A reference in this Act to a label includes a reference to a statement.
(2) 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
(c) the label is affixed to a container, covering, package, case, box or other thing in or with which the first - mentioned thing is supplied; or
(d) the label is affixed to, or incorporated in, an instruction or other document that accompanies the first - mentioned thing.
30 Paragraph 101(1)(b)
Omit "SMA, or a person authorised by the SMA,", substitute "ACA, or a recognised testing authority,".
31 Paragraph 163(1)(a)
Omit "standard", substitute "standard (either directly, or indirectly by means of a report under paragraph ( 2)(g))".
32 Subsections 163(2) and (3)
Repeal the subsections, substitute:
(2) The ACA may make an arrangement with any of the following bodies or associations:
(a) the Standards Association of Australia ;
(b) a body or association approved in writing by the Standards Association of Australia for the purposes of this subsection;
(c) a body or association specified in a written determination made by the ACA for the purposes of this subsection;
under which the body or association:
(d) prepares a draft of a standard; and
(e) publishes the draft standard; and
(f) undertakes a process of public consultation on the draft standard; and
(g) reports to the ACA on the results of that process of public consultation.
(3) A copy of an approval under paragraph ( 2)(b) is to be published in the Gazette .
(4) A copy of a determination under paragraph ( 2)(c) is to be published in the Gazette .
33 Paragraph 164(b)
Omit "published", substitute "notified".
34 Subsection 165(1)
Omit "Subject to subsection ( 2), a standard", substitute "A standard".
35 Subsection 165(2)
Repeal the subsection.
36 Subsection 167(3)
Repeal the subsection, substitute:
(3) In deciding whether to issue a permit, the ACA may have regard to whether the purpose for which the permit is sought is a purpose related to:
(a) education or research; or
(b) testing of devices; or
(c) demonstration of devices.
(3A) In deciding whether to issue a permit, the ACA must have regard to the protection of the health or safety of persons who:
(a) operate devices; or
(b) work on devices; or
(c) use services supplied by means of devices; or
(d) are otherwise reasonably likely to be affected by the operation of devices.
(3B) Subsections ( 3) and (3A) do not, by implication, limit the matters to which the ACA may have regard.
37 Paragraph 169(4)(a)
Repeal the paragraph, substitute:
(a) if:
(i) there is in force a written determination made by the ACA that is expressed to apply in relation to all permits or in relation to a class of permits in which the permit is included; and
(ii) the determination specifies a period longer than 12 months in relation to all permits or in relation to a class of permits in which the permit is included;
a day within that longer period; or
38 At the end of section 169
Add:
(5) A determination under paragraph ( 4)(a) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
(6) The ACA may, by written notice given to the holder of a permit, declare that the permit has effect as if the permit had specified a day specified in the notice as the day of expiration of the permit. The declaration has effect accordingly.
(7) The day specified in a notice under subsection ( 5) must:
(a) be later than the day on which the notice was given to the holder; and
(b) comply with the rules set out in subsection ( 4).
39 After section 169
Insert:
169A Compensation--constitutional safety - net
(1) If:
(a) apart from this section, the operation of subsection 169(6) would result in the acquisition of property from a person otherwise than on just terms; and
(b) the acquisition would be invalid because of paragraph 51(xxxi) of the Constitution;
the Commonwealth is liable to pay compensation of a reasonable amount to the person in respect of the acquisition.
(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in the Federal Court for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
(3) In this section:
"acquisition of property" has the same meaning as in paragraph 51(xxxi) of the Constitution.
"just terms" has the same meaning as in paragraph 51(xxxi) of the Constitution.
40 Subparagraph 171(3)(b)(i)
Omit "must", substitute "may".
41 After subparagraph 171(3)(b)(i)
Insert:
(ia) any matter to which the ACA must, under subsection 167(3A), have regard in deciding whether to issue a permit; and
42 Subsection 182(1)
Omit "affix", substitute "apply".
Note: The heading to section 182 of the Radiocommunications Act 1992 is altered by omitting " affix " and substituting " apply ".
43 Subsection 182(1B)
Omit "affix", substitute "apply".
44 After subsection 182(2)
Insert:
(2A) The method of applying the label to the device must be as specified by the ACA in the instrument.
45 Subsection 182(3)
Omit "requirements of laws of another country", substitute:
requirements of:
(a) a specified law of a foreign country; or
(b) a specified instrument in force under a law of a foreign country; or
(c) a specified convention, treaty or international agreement; or
(d) a specified instrument in force under a specified convention, treaty or international agreement;
46 Subsection 182(4)
Repeal the subsection, substitute:
(4) The notice may specify requirements that must be met before a label can be applied, including (but not limited to):
(a) a requirement that, before a manufacturer or importer applies the label, the manufacturer or importer must have obtained a written statement from a certification body certifying that the device complies with the standard or class licence specified in the notice; and
(b) a requirement that, before a manufacturer or importer applies the label, the device must have been tested by a recognised testing authority for compliance with the standard or class licence specified in the notice; and
(c) a requirement that, before a manufacturer or importer applies the label, the manufacturer or importer must have obtained a written statement from a competent body certifying that reasonable efforts have been made to avoid contravention of the standard or class licence specified in the notice; and
(d) a requirement that, before a manufacturer or importer applies the label, the manufacturer or importer must make a written declaration in relation to the device, being a declaration in a form specified in the notice.
Note 1: Certification body is defined by section 183A.
Note 2: Competent body is defined by section 183.
Note 3: Recognised testing authority is defined by section 183.
47 Subsection 182(4A)
Omit "affixed", substitute "applied".
48 Subsection 182(4A)
Omit ", records of".
49 Paragraph 182(4A)(a)
Before "the quality", insert "records of".
50 Paragraph 182(4A)(b)
Before "any results", insert "records of".
51 Paragraph 182(4A)(b)
Omit "class licence.", substitute "class licence; and".
52 Subsection 182(4A)
Add at the end:
(c) a declaration, or a copy of the declaration, made as mentioned in paragraph ( 4)(d).
53 Subsection 182(6)
Repeal the subsection.
54 Section 183
Repeal the section, substitute:
183 Recognised testing authorities
(1) The ACA may, by notice in the Gazette , determine that a specified person or association is an accreditation body for the purposes of this section. The determination has effect accordingly.
(2) An accreditation body may, by written instrument, determine that a specified person is a recognised testing authority for the purposes of this Division. The determination has effect accordingly.
(3) An accreditation body may, by written instrument, determine that a specified person or association is a competent body for the purposes of this Division. The determination has effect accordingly.
(1) The ACA may, by notice published in the Gazette , determine that a specified person or association is an approving body for the purposes of this section. The determination has effect accordingly.
(2) An approving body may, by written instrument, determine that a specified person or association is a certification body for the purposes of this Division. The determination has effect accordingly.
55 Section 184
Repeal the section.
56 Section 185
Repeal the section.
57 Paragraph 186(b)
Omit "affix", substitute "apply".
58 Section 186
Omit "sell or" (wherever occurring).
59 Section 186
Omit "affixed", substitute "applied".
60 Section 187
Omit "affixing", substitute "applying".
61 Section 187
Omit "affix", substitute "apply".
Note: The heading to section 187 of the Radiocommunications Act 1992 is altered by omitting " Affixing " and substituting " Applying ".
62 Section 187A
Omit "affixed", substitute "applied".
63 After section 188
Insert:
(1) A person must not:
(a) use in relation to a business, trade, profession or occupation; or
(b) apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let on hire; or
(c) use in relation to:
(i) goods or services; or
(ii) the promotion, by any means, of 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.
(2) A person who intentionally or recklessly contravenes subsection ( 1) is guilty of an offence punishable on conviction by a fine not exceeding 30 penalty units.
Note: See also sections 4AA and 4B of the Crimes Act 1914 .
(3) Nothing in subsection ( 1) limits anything else in that subsection.
(4) Nothing in subsection ( 1), so far as it applies in relation to a protected symbol, affects rights conferred by law on a person in relation to:
(a) a trade mark that is registered under the Trade Marks Act 1995 ; or
(b) a design that is registered under the Designs Act 1906 ;
and was so registered immediately before 16 August 1996 in relation to the symbol.
(5) Nothing in this section, so far as it applies to a protected symbol, affects the use, or rights conferred by law relating to the use, of the symbol by a person in a particular manner if, immediately before 16 August 1996, the person:
(a) was using the symbol in good faith in that manner; or
(b) would have been entitled to prevent another person from passing off, by means of the use of the symbol or a similar symbol, goods or services as the goods or services of the first - mentioned person.
(6) This section does not apply to a person who uses or applies a protected symbol for the purposes of labelling a device in accordance with section 182 of this Act or labelling customer equipment or customer cabling in accordance with section 407 of the Telecommunications Act 1997 .
(7) This section does not apply to a person who uses or applies a protected symbol for a purpose of a kind specified in a written determination made by the ACA.
(8) A reference in this section to a protected symbol is a reference to:
(a) the symbol known in the radiocommunications community as the C - Tick mark:
(i) the design of which is set out in a written determination made by the ACA; and
(ii) a purpose of which, after the commencement of this section, is to indicate compliance by a device with:
(A) any applicable standards; and
(B) any applicable class licences; or
(b) a symbol:
(i) the design of which is set out in a written determination made by the ACA; and
(ii) a purpose of which, after the commencement of this section, is to indicate compliance by a device with:
(A) any applicable standards; and
(B) any applicable class licences; or
(c) a symbol:
(i) the design of which is set out in a written determination made by the ACA; and
(ii) a purpose of which, after the commencement of this section, is to indicate non - compliance by a device with:
(A) applicable standards; and
(B) any applicable class licences.
(9) For the purposes of this Division, if:
(a) a label is applied to a device; and
(b) the label embodies a symbol referred to in paragraph ( 8)(a), or (b);
the label is taken to indicate that the device meets the requirements of:
(c) each applicable standard; and
(d) each applicable class licence.
(10) For the purposes of this Division, if:
(a) a label is applied to a device; and
(b) the label embodies a symbol referred to in paragraph ( 8)(c);
the label is taken to indicate that the device does not meet the requirements of:
(c) each applicable standard; and
(d) each applicable class licence.
(11) For the purposes of this section, a standard or class licence is taken to be applicable in relation to a device if, and only if, the standard or licence was specified in the subsection 182(1) notice that dealt with the manufacture or importation of the device.
(12) A determination made by the ACA under subsection ( 7) or (8) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .
(13) In addition to its effect apart from this subsection, this section also has the effect it would have if a reference in subsection ( 1) to a person were, by express provision, confined to a corporation to which paragraph 51(xx) of the Constitution applies.
(14) In addition to its effect apart from this subsection, this section also has the effect it would have if each reference in subsection ( 1) to use, or to application, were a reference to use or application, as the case may be, in the course of, or in relation to:
(a) trade or commerce between Australia and places outside Australia ; or
(b) trade or commerce among the States; or
(c) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or
(d) the supply of goods or services to the Commonwealth, to a Territory or to an authority or instrumentality of the Commonwealth or of a Territory; or
(e) the defence of Australia ; or
(f) the operation of lighthouses, lightships, beacons or buoys; or
(g) astronomical or meteorological observations; or
(h) an activity of a corporation to which paragraph 51(xx) of the Constitution applies; or
(i) banking, other than State banking; or
(j) insurance, other than State insurance; or
(k) weighing or measuring.
(15) In this section:
"customer cabling" has the same meaning as in the Telecommunications Act 1997 .
"customer equipment" has the same meaning as in the Telecommunications Act 1997 .
"radiocommunications community" has the same meaning as in the Australian Communications Authority Act 1997.
64 Paragraph 277(1)(a)
Repeal the paragraph, substitute:
(a) a transmitter is operating on any land, or on or in any premises, vessel, aircraft or vehicle; and
65 Paragraph 277(1)(c)
Repeal the paragraph, substitute:
(c) the operation of the transmitter is:
(i) interfering with radiocommunications that are essential to the safety of human life; or
(ii) interfering substantially with the operation of an organisation specified in regulations made for the purposes of paragraph 193(1)(a); or
(iii) interfering substantially with the operation of an organisation referred to in paragraph 193(1)(b) or (c); or
(iv) causing substantial loss or damage;
66 Paragraph 277(1)(e)
Repeal the paragraph, substitute:
(e) subject to subsection ( 2), take such action as the inspector considers necessary to cause the transmitter to:
(i) cease operating; or
(ii) operate in such a way that no longer gives rise to one or more of the consequences set out in paragraph ( c).
67 Paragraph 279(1)(d)
Omit "affixed", substitute "applied".
68 After paragraph 285(q)
Insert:
(qa) giving a notice under subsection 169(6);
69 Subsections 300(1) and (4)
Omit "affix", substitute "apply".
70 Section 314A
Repeal the section, substitute:
314A Instruments under this Act may provide for matters by reference to other instruments
(1) An instrument under this Act may make provision in relation to a matter by applying, adopting or incorporating (with or without modifications) provisions of any Act:
(a) as in force at a particular time; or
(b) as in force from time to time.
(2) An instrument under this Act may make provision in relation to a matter by applying, adopting or incorporating (with or without modifications) matter contained in any other instrument or writing whatever:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time;
even if the other instrument or writing does not yet exist when the instrument under this Act is made.
(3) A reference in subsection ( 2) to any other instrument or writing includes a reference to an instrument or writing:
(a) made by any person or body in Australia or elsewhere (including, for example, the Commonwealth, a State or Territory, an officer or authority of the Commonwealth or of a State or Territory or an overseas entity); and
(b) whether of a legislative, administrative or other official nature or of any other nature; and
(c) whether or not having any legal force or effect;
for example:
(d) regulations or rules under an Act; or
(e) a State Act, a law of a Territory, or regulations or any other instrument made under such an Act or law; or
(f) an international technical standard or performance indicator; or
(g) a written agreement or arrangement or an instrument or writing made unilaterally.
(4) Nothing in this section limits the generality of anything else in it.
(5) Subsections ( 1) and (2) have effect despite anything in:
(a) the Acts Interpretation Act 1901 ; or
(b) the Legislative Instruments Act 1997 .
(6) In this section:
"instrument under this Act" means:
(a) the regulations; or
(b) any other instrument made under this Act.
71 Transitional--procedures for making standards
The amendments of section 163 of the Radiocommunications Act 1992 made by this Schedule do not apply in relation to a standard made before 1 July 1998 if the SMA had taken any action in relation to the standard under that section before the commencement of this item.
72 Transitional--section 186 of the Radiocommunications Act 1992
(1) This item applies to the amendment of section 186 of the Radiocommunications Act 1992 made by this Schedule, being the amendment that omits the expression "sell or".
(2) The amendment does not imply that the expression "supply", when used in a provision of the Radiocommunications Act 1992 , does not include supply by way of sale.