Radiocommunications (Apparatus Licences – Authorisations and Transfers) Determination 2025

The instrument relies on a small set of legal concepts and cross-references. These concepts determine which licences are subject to constraints and the identity or status of the persons who may or may not be authorised or receive transfers.

Key defined and imported concepts

• Apparatus licence, licensee, operate, ACMA and radiocommunications device are listed in Note 1 to section 5 as expressions defined in the Radiocommunications Act. The instrument assumes those Act definitions govern its operation.
• Exempt person is defined, but not within the instrument itself. Section 5 defines exempt person by reference to regulations made under subsection 8(1) of the Radiocommunications Taxes Collection Act 1983 that exempt persons from the payment of apparatus licence tax. The instrument therefore ties the class to tax regulatory treatment rather than to a label created within this instrument.
• Eligible person is defined by reference to the Radiocommunications (Transmitter Licence Tax) Determination 2025, or a later instrument that replaces that determination and defines the term. That makes eligibility contingent on a separate legislative instrument governing transmitter licence tax.
• Exempt broadcasting service is defined by reference to subsection 18A(3) of the Broadcasting Services Act 1992. That anchors the relevant broadcasting concept in broadcasting law rather than in radiocommunications law.
• International broadcasting licence and international broadcasting service are expressed as terms listed in Note 1 to section 5 as being defined in the Act. The table in section 7 uses the existence of an international broadcasting licence as an operative condition in item 3.

Structure and operational logic

• The instrument utilises the Act’s powers to restrict the ability of licensees to authorise third party use (s 115(1)(c)) and the ability to transfer licences (s 131AC(1)(b)). Section 7 explicitly links each licence class in column 1 to a circumstance in column 2 that bars a proposed authorisation or transfer. Subsection 7(1) applies to authorisations and subsection 7(2) applies to transfers, meaning the same table operates against both transactions.
• The table is categorical. Each row states that for the specified licence class, authorisation or transfer “must not” occur if the other person fails a specified status test or intends a specified use. The instrument therefore uses status of the other person or intended use as the gating criterion.
• The instrument adopts dynamic references. Section 6 says references to legislative instruments are to be taken as those instruments as in force from time to time. Section 5 explicitly allows for a later instrument to replace the Transmitter Licence Tax Determination and thereby change the meaning of eligible person.

Layering with tax and broadcasting law

• Two of the key categories are tax-derived: exempt person (via Radiocommunications Taxes Collection Act regulations) and eligible person (via the Transmitter Licence Tax Determination). Consequently the instrument ties operational permission to tax status.
• Two items invoke broadcasting regimes: item 3 requires an international broadcasting licence in force; item 5 conditions apparatus licences associated with the provision of an exempt broadcasting service on continued use only for that exempt service. Item 4 creates special constraints when the ABC or SBS operates a device outside Australia, restricting authorisation or transfer where use would be for international broadcasting or for domestic broadcasting within Australia.

Temporal and substitution effects

• The instrument commences on a fixed date, making it prospective from 30 September 2025. Because the definitions of eligible person and exempt person are drawn from instruments and regulations that may change, the identity of persons who can be authorised or receive transfers may change over time without amendment to this determination, by changes to those other instruments.

In short, the main concepts are: apparatus licences as defined in the Act, categories of persons defined elsewhere (exempt person, eligible person), broadcasting categories (exempt broadcasting service, international broadcasting licence), and the binary legal operations of authorisation and transfer which the instrument constrains by reference to those categories.

Directly affected persons

• Licensees of apparatus licences identified in column 1 of the table in section 7 are directly affected. The instrument applies only to apparatus licences of the types set out in the table items. For each such licence, the licensee must not authorise another person to operate the radiocommunications device, and the licence is not transferable to certain proposed transferees under Division 8 of Part 3.3 of the Act when the conditions in column 2 pertain, pursuant to subsections 7(1) and 7(2).
• The immediate counterparty affected is the “other person” defined by the table language. That is either (a) a prospective authorised operator under the licence, or (b) a proposed transferee under the transfer provisions of the Act. The instrument sets tests of status and intended use that determine whether the other person is permissible.

Groups whose legal capacity is constrained or preserved

• Exempt persons, as defined by regulations under the Radiocommunications Taxes Collection Act 1983, are a protected class under item 1. Apparatus licences held by exempt persons cannot be authorised to non-exempt persons. Accordingly, exempt persons retain exclusive capacity to use or receive those licences unless another exempt person is involved.
• Eligible persons are protected in item 2. Apparatus licences held by eligible persons cannot be authorised or transferred to other persons unless those persons are either eligible persons themselves or exempt persons. Therefore eligible persons are effectively permitted to authorise or transfer only within the union of eligible and exempt persons.
• International broadcasters and holders of international broadcasting licences are implicated by item 3. If an apparatus licence authorises operation of a device for an international broadcasting service, it may not be authorised or transferred to a person who lacks an international broadcasting licence in force that authorises that person to provide that service. That makes the legal capacity to take an apparatus licence contingent on holding the corresponding international broadcasting licence.

Special public broadcasters

• The Australian Broadcasting Corporation and the Special Broadcasting Service Corporation are given special treatment in item 4. Where those corporations operate a radiocommunications device under the licence to provide broadcasting services to locations outside Australia, the licence cannot be authorised or transferred to a person who intends to use the licence to: provide an international broadcasting service, or provide a broadcasting service within Australia. That preserves control over those licences in a way that prevents conversion to other broadcasting uses or to international broadcasting purposes by third parties.

Providers of exempt broadcasting services

• Item 5 protects apparatus licences authorising the provision of an exempt broadcasting service, as defined in subsection 18A(3) of the Broadcasting Services Act 1992. The licence cannot be authorised or transferred to a person who intends to operate the device for anything other than the provision of an exempt broadcasting service.

Indirectly affected persons and entities

• ACMA is the regulatory body by reference; the instrument cites ACMA in Note 1 as an expression defined in the Act, and section 6 contemplates other determinations under the Australian Communications and Media Authority Act 2005 could define expressions that apply to this instrument. Practically, ACMA will be the decision maker under the Act for transfer approvals or enforcement actions that relate to licences. The instrument itself does not describe ACMA’s procedural role, but it operates within the Act’s transfer and authorisation regimes that ACMA supervises.
• Parties to commercial transactions involving apparatus licences, such as telecommunications operators, broadcasters, broadcasters’ contractors, and prospective purchasers, are affected because due diligence must now confirm the status of licence holders and proposed transferees against the categories set out in the table.
• Tax authorities and persons advising on transmitter licence tax may be affected because the definition of eligible person links to the Radiocommunications (Transmitter Licence Tax) Determination 2025. Changes in tax determinations may alter who qualifies as an eligible person and therefore who can be authorised or transfer licences.

Who is not directly affected

• Apparatus licences not specified in column 1 of any table item do not fall within the prohibitions set out in this instrument. The instrument therefore creates targeted constraints rather than blanket rules across all apparatus licences.

In sum, the instrument affects licensees holding the named classes of apparatus licences and the persons they might authorise or transfer those licences to, with crosscutting effects for broadcasters, ACMA processes, and parties in commercial dealings involving such licences. The categories that define “permissible” persons are sourced from separate tax and broadcasting instruments and statutes, so parties will need to consult those sources when assessing status.

Duties imposed on licensees

• Do not authorise prohibited persons: Under subsection 7(1), for each apparatus licence specified in column 1, the licensee must not authorise the other person to operate a radiocommunications device under the licence when the circumstances in column 2 apply. The prohibition is framed as a mandatory obligation on the licence holder.
• Do not transfer to prohibited transferees: Under subsection 7(2), an apparatus licence specified in column 1 is not transferable to the proposed transferee when the circumstances in column 2 apply. This modifies the operation of Division 8 of Part 3.3 of the Act by removing the legal permissibility of certain transfers, depending on the transferee’s status or intended use. Those are legal constraints rather than administrative guidance.

Duties of due diligence and verification implied by the instrument

• Verify status: Licensees must establish whether the other person is an exempt person, an eligible person, or holds an international broadcasting licence in force, as relevant to the table item. Those definitions are specified externally: exempt person by regulations under the Radiocommunications Taxes Collection Act 1983 and eligible person by the Radiocommunications (Transmitter Licence Tax) Determination 2025 or any later instrument that replaces it (section 5). For international broadcasting licences, the condition is that there must be an international broadcasting licence in force that authorises the provision of the international broadcasting service by the other person (table item 3).
• Ascertain intended use: In items 4 and 5, the determining factor is the proposed intended use by the other person. The instrument bars transfers or authorisations where the other person intends to operate the device under the licence to provide specified services, for example an international broadcasting service or a broadcasting service within Australia in item 4, or any service other than an exempt broadcasting service in item 5.

Rights preserved for certain classes of persons

• Exempt persons’ exclusive use: Item 1 preserves the exclusive capacity of exempt persons holding apparatus licences to authorise operation themselves or to authorise only other exempt persons. That is, an apparatus licence held by an exempt person cannot be used by a non-exempt person.
• Eligible persons are allowed to contract within an inner ring: Item 2 allows eligible persons to authorise or transfer to persons who are either eligible persons or exempt persons. That creates a bounded set of permitted transferees and authorised operators.
• Licence holders’ general rights under the Act: The instrument does not remove licence holders’ other statutory rights or obligations found in the Radiocommunications Act. It modifies specific authorisation and transfer permissions but does not, for instance, create new affirmative rights to transfer in other circumstances.

Allocation of decision rights

• The instrument does not itself allocate administrative discretion. Instead it establishes legal prohibitions that interact with the Act’s existing administrative processes for transfers and authorisations, which are administered under the Act and by ACMA. Because the instrument is made under ss 115(1) and 131AC(1) of the Act (section 3), the Act remains the source of procedural rights such as applying for a transfer under Division 8 of Part 3.3; the instrument prevents certain transfers from being legally effective.

Documentary and procedural implications

• Record-keeping: Licensees will need to retain documentary evidence that they have checked the other person’s status and intended use before authorising operation or executing a transfer, because the instrument imposes a legal prohibition on authorisation and transfer in certain circumstances.
• Reliance on other instruments: The legal characterization of who is an exempt person or eligible person comes from other instruments and regulations. As noted in section 5, the Radiocommunications (Transmitter Licence Tax) Determination 2025 may itself be replaced by a later instrument that defines eligible person. The instrument therefore creates an ongoing duty to monitor related instruments for changes that may affect permitted authorisations and transfers.

Absences and delegations

• No new affirmative permissions: The instrument does not grant new rights to authorise or transfer licences beyond those already in the Act. It is restrictive in construction. Licensees who wish to authorise or transfer licences outside the permitted classes will need to consider whether any exceptions exist in the Act or whether regulatory relief is available through ACMA processes, but this instrument itself makes no provision for exceptions or dispensations.

In summary, the principal duties are negative duties: do not authorise and do not transfer in specified circumstances. The rights preserved are those of exempt and eligible persons to continue authorised use within their categories. The instrument places practical verification duties on licensees and potential transferees because the key tests are status and intended use, both of which require factual proof.

The instrument prescribes prohibitions but does not itself set out penalty provisions or enforcement procedures. The legal effect is to alter what authorisations and transfers are legally permissible under the Radiocommunications Act, relying on the Act’s broader enforcement and compliance framework for implementation.

Statutory basis for enforcement

• The instrument is made under subsection 115(1) and subsection 131AC(1) of the Radiocommunications Act. Those Act provisions, not the instrument, are the primary statutory provisions governing authorisation and transfer of apparatus licences. Any penalties, offences or administrative sanctions that apply for contraventions of the Act would be governed by the Act itself and by regulations under it. The instrument therefore functions by removing legal permission for certain transactions, rather than by adding its own penalty regime.

How breaches are likely to be treated

• A failure by a licensee to comply with the prohibitions in section 7 may render an authorisation invalid or a transfer ineffective under the Act. The instrument does not say that a contravention constitutes a separate offence. However, because the instrument operates to set conditions on authorisation and transfer powers found in the Act, contrary action could expose the licensee or the transferee to administrative or regulatory consequences under the Act, including actions ACMA is empowered to take under the Act. The instrument itself does not list specific ACMA powers or procedures.

Enforcement agencies and administrative processes

• ACMA is the relevant agency in the Act for regulation of apparatus licences and related transfers. The instrument refers to ACMA in Note 1 of section 5 as an expression defined by the Act. While this instrument does not specify how ACMA will exercise any enforcement powers in relation to these prohibitions, enforcement would fall into the existing ACMA remit under the Act.

Lack of procedural detail in the instrument

• The instrument does not set out a process for reporting suspected contraventions, for seeking exemptions, waivers or administrative relief, or for rectification of improperly authorised or transferred licences. Parties seeking certainty about remedies, sanctions or process will need to consult the Radiocommunications Act and ACMA guidance or procedural rules, since those sources contain enforcement mechanisms and procedural steps. Section 6’s cross-reference mechanics mean other instruments and regulations as in force from time to time may influence enforcement if they create specific offences, administrative penalties or compliance requirements.

Practical exposure

• Parties should note that because the prohibitions are framed as mandatory restrictions, actions that proceed in breach will not be supported by this determination and may have legal consequences under the Act. The precise consequence, including whether an act is a criminal offence, an administrative contravention attracting pecuniary penalties, or merely renders a transfer ineffective, depends on the Act and associated regulations rather than this determination. The instrument does not specify whether it intends contraventions to attract civil or criminal sanctions.

In effect, this determination creates legal boundaries on authorisation and transfer that will be enforced through the Radiocommunications Act and ACMA’s statutory powers. The determination itself is silent on penalties and enforcement details, so affected parties must consult the Act and ACMA for specific enforcement mechanisms.

This instrument is tightly cross-referenced to other statutes and legislative instruments. It operates as a set of conditions layered on top of the Radiocommunications Act and interacts directly with tax instruments and broadcasting law.

Primary statutory interactions

• Radiocommunications Act: The instrument is made under subsection 115(1) and subsection 131AC(1) of the Act, and operates by reference to the authorisation power in s 115(1)(c) and the transfer provisions in s 131AC(1)(b) and Division 8 of Part 3.3 of the Act (section 3 and section 7). Consequently, the instrument modifies the legal parameters of authorisation and transfer provided under the Act. Any administrative processes, appeals and enforcement procedures under the Act will govern actions arising from breaches or from attempted transactions that this instrument makes impermissible.
• Radiocommunications Taxes Collection Act 1983: Section 5 defines exempt person by reference to regulations made for the purpose of subsection 8(1) of that Act. Therefore, tax regulations that exempt persons from apparatus licence tax feed directly into who can be authorised to operate or who can receive transfers. The instrument therefore ties operational licence permissions to tax regulatory classifications.
• Radiocommunications (Transmitter Licence Tax) Determination 2025: The instrument defines eligible person by reference to this determination (section 5). Any later instrument that replaces it and defines the expression will similarly govern who is an eligible person. This creates a legal dependency on a tax-determination instrument for the identity of eligible persons.
• Broadcasting Services Act 1992: The instrument uses the term exempt broadcasting service as having the meaning given by subsection 18A(3) of the Broadcasting Services Act 1992 (section 5). Item 5 in the table bars authorisation or transfer where the other person intends to use the licence otherwise than in the provision of an exempt broadcasting service. Item 3 also invokes international broadcasting licences and services, which are broadcasting law concepts as also referenced in Note 1 to section 5.

Administrative instruments and definitions

• Section 5 Note 2 indicates that other expressions may be defined in a determination made under subsection 64(1) of the Australian Communications and Media Authority Act 2005, which applies to this instrument. Section 6 further clarifies that references to legislative instruments should be read as those instruments as in force from time to time. Thus definitional or interpretive changes in other instruments administered by ACMA can affect the operation of this instrument without amendment to this determination.

Statutory interpretation and general Acts

• Section 6 notes the operation of the Acts Interpretation Act 1901 (section 10) for references to Commonwealth Acts and the Legislation Act 2003 subsection 13(1) for the application of the interpretation Act to legislative instruments. This means standard statutory interpretation and drafting conventions apply to the instrument’s operation and to any references it contains.
• Section 6 also points readers to section 314A of the Act. While the instrument does not elaborate that provision, the cross-reference indicates that the Act contains other provisions relevant to interpreting and applying determinations such as this.

Operational interplay and conditionality

• The instrument creates conditional permissions that require checking of separate legal regimes. For example, table item 3 requires the existence of an international broadcasting licence in force for the other person before authorisation or transfer can be permitted. That requires interfacing operationally with broadcasting licensing systems.
• The instrument links tax outcomes to operational permission. Being an exempt person or an eligible person depends on taxation instruments and regulations. Consequently, tax policy changes or instruments can alter who may legally be authorised or receive transfers under apparatus licences.
• The determination repeals an earlier determination made in 2015 (section 4). Consequently transactions taking place after commencement must be tested against this determination rather than the 2015 instrument.

Limits of this instrument’s reach

• This determination does not itself create broadcasting or tax law definitions beyond references. It relies on the other statutes and instruments for those definitions. It also does not override the procedural or enforcement systems set out in the Act or in ACMA’s determinations and rules. Parties will need to consult the Act, ACMA practice notes, the Radiocommunications (Transmitter Licence Tax) Determination 2025, the Radiocommunications Taxes Collection Act regulations, and the Broadcasting Services Act for the full operative legal context.

In short, the instrument is an interstitial regulatory overlay. It relies on tax and broadcasting instruments to define key categories and works within the Radiocommunications Act administrative framework to constrain authorisations and transfers. Because those source instruments are capable of amendment, the operational effect of this determination will vary as those upstream instruments change.

This determination is compact and self-contained so far as it stands, and its amendment history is straightforward within the text provided.

Repeal of the 2015 determination

• Section 4 repeals the Radiocommunications (Limitation of Authorisation of Third Party Users and Transfer of Apparatus Licences) Determination 2015 [F2015L01218]. That is an express repeal of the prior legislative instrument governing similar matters. The instrument does not provide the date of making or any transitional arrangements within the text provided; it simply repeals the 2015 determination as of its commencement.

Commencement

• Section 2 sets commencement at the start of 30 September 2025. From that date the determinations and prohibitions in section 7 are in force and replace the 2015 instrument in law, because of the repeal in section 4.

Authority and enabling provisions

• Section 3 records that the instrument is made under subsection 115(1) and subsection 131AC(1) of the Radiocommunications Act. Those subsections are the enabling powers for imposing the authorisation and transfer limitations that the instrument specifies. The instrument does not include any express expiry or review date.

Potential for change through linked instruments

• The instrument contemplates change by reference. Section 5 defines eligible person by reference to the Radiocommunications (Transmitter Licence Tax) Determination 2025, but adds that if a later instrument replaces that determination and defines the expression, then the later instrument applies. Section 6 likewise treats references to other legislative instruments as references to those instruments as in force from time to time. In practice, therefore, the operation of this determination may change functionally when upstream determinations or regulations are amended, even if this instrument itself is not amended.

No amendments recorded in the text

• The instrument as supplied contains no amendment clauses, no saved transitional provisions and no retroactivity clauses. It replaces the 2015 instrument and stands on its own from its commencement date.

What is not present in the amendment history

• The determination does not include any schedule of transitional provisions to govern authorisations or transfers that were in progress at the time of commencement, nor does it contain a series of consequential amendments to other instruments. The text supplied does not indicate whether existing authorised operators or pending transfer applications are preserved. Because the instrument repeals the 2015 determination on commencement, parties should assume the new rules govern from commencement and should check the Act and ACMA practice for any transitional or saving provisions not contained in this determination.

In practical terms, the key historical events recorded in the instrument are its making under ss 115(1) and 131AC(1) of the Act, the repeal of the 2015 determination, and the fixed commencement date of 30 September 2025. Any further changes will be effected either by amendment to this instrument or by changes to the upstream instruments and regulations on which it depends.

The instrument contains no narrative or references to court or tribunal decisions. It does not report any litigation under the Act or under prior determinations, and it does not identify any judicial or administrative review outcomes. The text supplied therefore contains no litigation history to summarise.

Practical implications of the absence of litigation history in the instrument

• The absence of any litigation history in the instrument does not mean that disputes will not arise. The instrument establishes categorical prohibitions that may generate contested factual questions, for example whether a person is an exempt person or eligible person, whether an international broadcasting licence is “in force” that authorises a proposed operator, or whether an intended use is within the scope of an exempt broadcasting service. Those factual and legal questions are likely to be resolved under the Act and, if contested, in administrative review or judicial proceedings under the relevant judicial review or merits review regimes. This instrument provides the legal criteria that would be argued in such proceedings but does not itself provide precedents.

Areas where litigation might arise, based on the instrument’s content

• Status disputes: Litigation or administrative review could turn on whether a person qualifies as an exempt person under the Radiocommunications Taxes Collection Act regulations or as an eligible person under the Radiocommunications (Transmitter Licence Tax) Determination 2025 or its successor. Because those determinations and regulations are external to this instrument, disputes are likely to require interpretation of those sources in addition to this determination.
• Factual intent disputes: Item 4 bars transfers or authorisations where a proposed transferee or other person “intends” to use a licence for specific broadcasting purposes. Evidence of intention can be contentious and may be litigated or the subject of administrative review if ACMA or another decision maker takes action based on an asserted intention.
• Interaction with transfer processes: Because transfers under Division 8 of Part 3.3 of the Act require procedural approvals, parties may seek review of refusal to approve a transfer on the basis that the determination’s prohibition applies, or alternatively seek review if ACMA permits a transfer that others contend is inconsistent with this determination. The instrument itself does not describe ACMA’s transfer process, but it modifies the set of legally permissible transfers that ACMA can approve.

Where to look for precedents and decisions

• Because this instrument replaces a 2015 determination, earlier cases construing the 2015 instrument may be relevant to understanding likely legal issues. However, this instrument’s text differs and will govern from its commencement date. Parties should consult decisions under the Radiocommunications Act, ACMA determinations and relevant judicial review decisions dealing with transfer and authorisation policy, as well as any cases construing definitions in the Radiocommunications Taxes Collection Act regulations and the Transmitter Licence Tax Determination 2025, though no cases are cited in the instrument itself.

Summary

• The instrument itself contains no litigation history. Parties should treat the provisions as potential sources of future disputes and plan for factually intensive inquiries (status and intent) that commonly generate administrative or judicial review litigation under the Act and related instruments.

This instrument is short but contains several points that can cause unexpected legal or practical consequences if not noticed. The following are specific traps, ambiguous points, and procedural risks that arise directly from the text.

Dynamic definitions and external dependence

• Eligible person is not defined in this instrument but is imported from the Radiocommunications (Transmitter Licence Tax) Determination 2025 or any later instrument that replaces it (section 5). If that upstream determination is modified or replaced, the class of eligible persons may expand or contract without any amendment to this determination. Do not assume the term is static. Compliance requires checking the current text of the tax determination at the time of the proposed authorisation or transfer.
• Exempt person depends on regulations under the Radiocommunications Taxes Collection Act 1983 (section 5). A person’s exempt status for tax purposes is therefore decisive for authorisation and transfer rules. Changes to tax regulations can change who counts as an exempt person.

“Other person” and focus on the transferee or authorised operator

• The table repeatedly uses the phrase “the other person” to denote either the person to be authorised or the proposed transferee. The instrument does not discuss or limit the licensee’s own rights or obligations beyond the stated prohibitions. Parties should be careful to assess the status of the other person specifically, because a licence held by an exempt or eligible person cannot be used by a third party that does not meet the relevant test.

Intention as a legal determinant

• Item 4 and item 5 turn on what the other person “intends” to do with the licence. Intention can be difficult to prove and may require clear documentary evidence, contractual covenants, or an assessment of business plans. Absent clear evidence, disputes about actual intention can lead to contested administrative decisions. Do not rely on informal assurances; obtain written proof of intended use.

Overlap of broadcasting and radiocommunications regimes

• Item 3 requires that, for apparatus licences that authorise operation of a device for an international broadcasting service, there must be an international broadcasting licence in force that authorises the provision of the international broadcasting service by the other person. This creates a two-step licensing dependency: a broadcasting licence and an apparatus licence. Parties must ensure that the international broadcasting licence is actually in force at the time authorisation or transfer is proposed.

Special rules for ABC and SBS

• Item 4 applies to apparatus licences held by the ABC and SBS where the corporation operates the device under the licence to provide a broadcasting service to locations outside Australia. The prohibition bars authorisation or transfer where the other person intends to use the licence to provide an international broadcasting service or to provide a broadcasting service within Australia. That has the practical effect of preventing conversion of those licences held by ABC or SBS for an overseas broadcasting purpose into licences serving domestic broadcasting or international broadcasting by third parties.

Effect of repeal of the 2015 instrument without transitional detail

• Section 4 repeals the 2015 determination but the instrument supplies no transitional provisions. If there are licences or transfers in progress as at commencement, their legal status might depend on the Act or ACMA practice rather than on this instrument. Do not assume that past practice continues unchanged; obtain legal advice and check ACMA guidance on transitional handling of pending transfers and authorisations.

No explicit exemptions or waiver mechanisms

• This determination sets hard prohibitions in the table; it does not provide a mechanism within the text to obtain exceptions, waivers or ministerial discretion. Any waiver or exception would therefore need to have statutory basis elsewhere, or be the subject of ACMA’s administrative discretion under the Act. Do not assume exceptions can be created by informal agreement.

Narrow scope and potential for unregulated workarounds

• The instrument applies only to licences described in column 1 of the table items. Apparatus licences not mentioned are not affected by this instrument’s prohibitions. Parties contemplating business changes might consider shifting operations to non-covered licences, subject to other regulatory constraints. That is a legal possibility because the instrument is intentionally targeted, but doing so would attract tax, broadcasting and licensing consequences under the Act and other laws.

Record-keeping and evidentiary risk

• The instrument imposes negative duties but not procedural steps. In any compliance or enforcement challenge, the licensee will need contemporaneous evidence that they checked the other person’s status and intended use. Lack of documentary proof will expose the licensee to compliance risk.

In sum, the principal gotchas are the instrument’s reliance on external definitions that can change, the use of intention as a determinative fact, the narrow but consequential interaction with broadcasting licences, and the absence of transitional and waiver mechanisms. Practitioners should design due diligence and documentation steps to address these specific risks.

The instrument creates mandatory prohibitions that require verification and record-keeping before a licensee authorises another person to operate under an apparatus licence or before a proposed transfer is completed. The following compliance checklist maps directly to the instrument’s text and the practical steps a licensee or proposed transferee should take.

1. Identify whether the apparatus licence is captured by the table

• Check column 1 of the table in section 7 to determine if the licence type you hold or seek to transfer is listed. The instrument only applies to the classes of apparatus licences specified in the five table items. If the licence is not mentioned, this determination’s prohibitions do not apply.

2. Determine which table item is relevant

• If the licence is held by an exempt person, item 1 applies. If held by an eligible person, item 2 applies. If the licence authorises operation of a device for the provision of an international broadcasting service, item 3 applies. If the licence is held by ABC or SBS and is used to provide broadcasting services to locations outside Australia, item 4 applies. If the licence authorises operation in the provision of an exempt broadcasting service, item 5 applies.

3. Verify the status of the other person

• For item 1 and item 2 you must verify whether the other person is an exempt person or an eligible person as applicable:
  • Exempt person: Obtain and retain documentary evidence confirming that the person is exempt under regulations made for the purpose of subsection 8(1) of the Radiocommunications Taxes Collection Act 1983. That may be a record of the regulatory instrument or a tax authority certificate that confirms exempt status.
  • Eligible person: Confirm that the person meets the definition of eligible person as set out in the Radiocommunications (Transmitter Licence Tax) Determination 2025, or in any later instrument that replaces that determination and defines the term. Maintain a copy of the relevant determination and any correspondence or certificates demonstrating the person’s eligibility.

4. For international broadcasting cases, confirm broadcasting licence in force

• For item 3, where the apparatus licence authorises operation for an international broadcasting service, confirm that the other person holds an international broadcasting licence in force that authorises them to provide the international broadcasting service. Obtain a copy of that international broadcasting licence and retain it as part of the transaction record.

5. For ABC and SBS licences, document intended use

• For item 4, if the licence is an ABC or SBS licence used to provide broadcasting services to locations outside Australia, obtain a written statement and supporting evidence from the other person establishing their intended use. The instrument prohibits authorisation or transfer where the other person intends to operate for an international broadcasting service or to provide broadcasting within Australia. Document the intended use and require contractual warranties and covenants limiting use to permitted activities.

6. For exempt broadcasting services, confirm intended operational scope

• For item 5, if the licence authorises operation in provision of an exempt broadcasting service (as defined in subsection 18A(3) of the Broadcasting Services Act 1992), obtain clear documentary evidence that the other person intends to operate the device only in the provision of that exempt broadcasting service. Use contractual restrictions to bind the other person and retain evidence of compliance checks.

7. Use written contractual mechanisms

• Before authorising a person to operate under a licence or entering into a licence transfer, require written representations and warranties from the other person about their status and intended use, accompanied by indemnities. Include conditions precedent in contracts requiring production and verification of the relevant documentary evidence prior to transfer or the commencement of any third party operation.

8. Maintain contemporaneous records

• Store documentary proof of the other person’s eligibility or exempt status, copies of licences (such as international broadcasting licences), and written statements of intended use in your compliance file. This will be necessary evidence if ACMA or another party challenges the authorisation or transfer.

9. Coordinate with ACMA processes

• Transfers under Division 8 of Part 3.3 of the Act require compliance with the Act’s procedural requirements. Notify and liaise with ACMA as required for any transfer application, and disclose the relevant materials showing that the transfer is not prohibited by this determination. If ACMA queries the status, provide the documentary evidence previously collected.

10. Monitor upstream instruments and regulations

• Because definitions of eligible person and exempt person are supplied by external instruments and regulations, monitor:
  • the Radiocommunications (Transmitter Licence Tax) Determination 2025 and any successor instruments that define eligible person; and
  • regulations under subsection 8(1) of the Radiocommunications Taxes Collection Act 1983 that define exempt person. Update internal checklists and compliance procedures when those instruments change.

11. Address intention disputes through contractual controls and compliance checks

• Because items 4 and 5 hinge on the other person’s intended use, include monitoring and audit rights in authorisation agreements and transfer contracts. Reserve termination or revocation rights where an authorised person departs from the stated intended use.

12. Seek advice on borderline cases and ACMA guidance

• If status or intention is ambiguous, obtain legal advice and seek ACMA guidance where appropriate prior to authorising or effecting a transfer. Since the instrument’s prohibitions operate within the Act, ACMA’s administrative interpretation may be determinative of procedural permissibility.

13. Consider possible tax consequences

• Because the instrument links legal permissions to tax-derived categories, consult tax advisers about the implications of exempt or eligible status and any tax consequences of transferring or authorising licences, including whether tax status changes could affect the legal permissibility of transfers.

14. Watch the repeal of the 2015 determination

• Recognise that this instrument repeals the 2015 determination as of commencement (section 4). If you have been operating under arrangements agreed under that earlier determination, re-test those arrangements against this determination on or after commencement.

Following this sequence will align operational practice with the instrument’s mandatory prohibitions. The core operational tasks are verification of status and intended use, contractual allocation of risk and proof obligations, liaison with ACMA for transfer approvals when required, and ongoing monitoring of external instruments that define the key categories used in this determination.