Radiocommunications (Spectrum Access Charges – 20 GHz and 30 GHz Bands) Determination 2021

Spectrum access charge. This is a charge imposed under the Radiocommunications Act 1992 on the holder of a spectrum licence for the right to use the radiofrequency spectrum. It is distinct from auction proceeds or licence application fees. The Act defines the term, and this instrument sets the specific dollar amount for two particular licences. The charge is a legislative debt due to the Commonwealth, not a contractual payment. The instrument does not disclose the methodology used to arrive at $16,191,243, leaving unclear whether it reflects an administrative cost recovery model, a valuation of the spectrum, or a negotiated figure with the Defence department.

Re-issue of a spectrum licence. The instrument applies to the re-issue of a spectrum licence under subsection 82(1) of the Act. Re-issue occurs when a spectrum licence is renewed or replaced at the end of its term, as distinct from an initial issue or a transfer. The use of the word re-issue suggests the licensee already held the licence and is now paying for a further term. The instrument does not state the duration of the re-issued licence, but the self-repeal date of 26 April 2036 implies a term of approximately 15 years from commencement.

Defence bands. The instrument defines two frequency ranges: the 20 GHz Defence band (20.2-21.2 GHz) and the 30 GHz Defence band (30-31 GHz). These are exclusive allocations for defence purposes, meaning the licensee is the Australian Department of Defence. The bands are not shared with commercial users. The instrument does not explain why these bands are subject to a spectrum access charge rather than being provided free of charge to the military. The existence of a charge implies that even government users of spectrum are required to pay for access, though the money circulates within the Commonwealth budget.

Licensee. Defined by reference to paragraph (a) of the definition in the Act. The Act defines licensee as the person to whom the spectrum licence is issued. Because the bands are Defence bands, the likely licensee is the Commonwealth itself, acting through the Department of Defence. This creates an unusual situation: the payer and the recipient are both arms of the same sovereign entity. The charge can be seen as an internal accounting mechanism or as a legislative appropriation constraint.

Election. The instrument grants the licensee a binary choice: pay the lump sum by 6 April 2021, or elect an instalment plan by written notice to the ACMA before 5 April 2021. The election is irrevocable after the deadline. The instrument does not provide for late elections, partial payments, or variations. The election must be in writing and given to the ACMA; it does not require ACMA’s consent. The short window (one day before the payment due date) creates a risk of administrative error if the election notice is not delivered in time. The instalment plan results in a higher total payment, which is effectively an interest charge for the convenience of deferral. No interest rate is stated, but the implied annualised cost is modest relative to commercial borrowing rates.

Repeal. The instrument self-repeals at the end of 26 April 2036. This does not mean the charge disappears; it means the instrument ceases to have prospective effect. Any charge already fixed and paid or payable would have been incurred before repeal. The repeal provision is typical of time limited legislative instruments that set charges for a specific licence term.

The direct addressee of this instrument is the licensee of the 20 GHz and 30 GHz Defence band spectrum licences. Given the bands are designated “Defence band”, the licensee is almost certainly the Australian Department of Defence. That means the immediate compliance burden falls on Defence personnel responsible for financial management, spectrum licensing, and liaison with the ACMA. The decision to pay the lump sum or elect instalments requires internal approval and an understanding of the Defence department’s cost of funds. The election deadline of 5 April 2021 imposes a tight timeframe for that decision. The instrument itself does not name the licensee, but the definite article “the” in sections 6 and 7 (the 20 GHz Defence band spectrum licence, the 30 GHz Defence band spectrum licence) implies there is only one such licence for each band, so the licensee is singular and identifiable.

Indirectly, the instrument affects the Commonwealth budget. The charge is payable from public money to the ACMA, which is also a Commonwealth body. From a whole of government perspective, the net effect is zero if the money stays within the consolidated revenue fund. However, the determination may serve to disclose the cost of spectrum used by Defence and to ensure that spectrum is not treated as a free good even for military purposes. If the charge rises or falls in a given year, it can affect Defence’s appropriations and program funding. The premium on the instalment option ($343,237) is a cost to Defence that could be avoided by paying upfront, but paying upfront requires a larger initial outlay. The trade off is a real resource allocation decision.

Other spectrum users in adjacent or related bands may be indirectly affected if the determination sets a precedent for how Defence spectrum is valued. If commercial operators seek access to similar high frequency bands for services such as satellite communications or point to point links, the ACMA may reference the per MHz cost implied by this determination in future pricing. The instrument does not calculate a per MHz figure, but a simple division of $16,191,243 by the bandwidth in each band (1 GHz in each case) yields about $16.19 per kHz per licence, which is a reference point for market comparisons.

Taxpayers are ultimately affected because the charge, whether paid upfront or by instalments, is a use of public funds. If the charge exceeds the cost of administering the licence or the opportunity cost of the spectrum, it is a transfer payment that reduces Defence spending on other capabilities. Conversely, if the charge is lower than the market value, it represents a subsidy to Defence at the expense of potential commercial bidders. The determination does not explain the basis for the amount, so it is impossible to know which scenario applies.

Duty to pay. The primary duty imposed by the instrument is the obligation to pay the spectrum access charge for each licence. Under section 6(1), the charge for the 20 GHz band is $16,191,243 if paid as a lump sum, and that amount is payable on or before 6 April 2021 unless an election for instalments is made. Under section 7(1), the same obligation applies for the 30 GHz band. The duty is absolute: the instrument does not condition the charge on the licensee’s ability to pay, the performance of any service, or the existence of any dispute. The charge is due automatically upon re-issue.

Right to elect instalments. The licensee has a right to elect to pay by instalments for one or both licences. The election must be exercised by giving a written notice to the ACMA before 5 April 2021. The notice must specify which licence it applies to. The licensee may elect for subsection 6(3), subsection 7(3), or both. Once elected, the instalment schedule is fixed: a first payment of $3,306,896 on or before 6 April 2021, and subsequent payments of the same amount on each anniversary of the day the licence came into force, until the total of $16,534,480 is paid. The instrument does not specify when the licence came into force, but from context it is likely 6 April 2021. If that is the case, the anniversaries are 6 April each year from 2022 to 2025, making five payments in total. The right to elect is time limited but does not require ACMA approval; it is a unilateral right of the licensee, subject only to the written notice requirement.

Right to pay lump sum. By default, if no election is made, the licensee must pay the lump sum by the due date. The instrument does not allow the licensee to change its mind after the election deadline. The lump sum option is the baseline obligation.

No other duties or rights. The instrument creates no obligations regarding use of the spectrum, reporting, interference management, or compliance with technical standards. Those matters are dealt with in the spectrum licence conditions imposed under the Act. The instrument purely addresses the financial condition of re-issue. It does not grant any right to re-issue; that right arises under section 82(1) of the Act and the ACMA’s administrative decisions. The instrument is subordinate to the Act; it does not create rights to spectrum access independent of the licence.

This instrument contains no penalty provisions. It does not state what happens if the licensee fails to pay the charge on time, or if the instalment payments are missed. Enforcement mechanisms are found in the Radiocommunications Act 1992 and in general Commonwealth debt recovery law. Under the Act, a spectrum access charge determined under section 294 is a debt due to the Commonwealth. That means the ACMA (or the Commonwealth) can recover the unpaid amount in a court of competent jurisdiction. The Act also permits the ACMA to suspend or cancel a spectrum licence for non payment of charges, though those provisions are not cited in this instrument. Section 294 itself provides little procedural detail; the enforcement relies on other parts of the Act.

The absence of penalty rates or late payment interest in this instrument means that if the licensee is the Department of Defence, the practical sanction is likely administrative rather than legal. The ACMA could decline to re issue the licence in the future or demand payment before re issue. But since the charge relates to a re issue that has already occurred (or is occurring), non payment might not be an option the Defence department would exercise, given it needs the spectrum for operations.

For the instalment option, the instrument does not specify whether late payment accelerates the remaining balance or triggers interest. The general law on debts would allow the Commonwealth to sue for each overdue instalment. There is no provision for the license to revoke the election if the licensee decides later that paying the lump sum would have been cheaper. The election, once made, is final.

The self repeal provision at 26 April 2036 does not extinguish liability for charges that fell due before repeal. Outstanding amounts would remain recoverable. The instrument is silent on waivers, variations, or hardship provisions. The only flexibility is the binary choice of lump sum vs instalments, and that choice must be made before 5 April 2021.

The instrument is a legislative instrument under the Legislation Act 2003. As such, a failure to comply with its terms is not itself an offence unless the Act creates one. The Radiocommunications Act does create offences for unlicensed operation, but not for non payment of a determined charge. The enforcement is civil debt recovery. The practical burden on the licensee is the cost of ensuring timely payment and the risk of reputational or operational consequences if payment is delayed.

The instrument is made under subsection 294(1) of the Radiocommunications Act 1992. That subsection empowers the ACMA to determine, by legislative instrument, the amount of the spectrum access charge payable for a spectrum licence or a class of spectrum licences. The Act is the primary source of the authority. The instrument defines “Act” to mean that Act. Any dispute about the interpretation of this instrument will be resolved by reference to the Act’s definitions, particularly the definitions of “spectrum access charge”, “spectrum licence”, and “licensee”. The instrument’s note states that expressions have the meaning given by the Act, in accordance with paragraph 13(1)(b) of the Legislation Act 2003.

The instrument interacts with section 82(1) of the Act, which provides for the re issue of a spectrum licence. The charge fixed by this instrument is a condition of re issue. The Act may also contain provisions on the duration of a spectrum licence, which informs the payment schedule. The instrument does not specify the licence term, but the repeal date of 26 April 2036 and the five instalment schedule suggest a term of about 15 years.

The Legislation Act 2003 governs the registration, tabling, and disallowance of legislative instruments. This instrument was registered on the Federal Register of Legislation. It is subject to parliamentary scrutiny. However, because it sets a specific monetary amount for a particular licence, it may be treated as a “disallowable instrument” unless exempt. The instrument’s note references the Legislation Act but does not state disallowability.

The Defence Act 1903 and the Financial Management and Accountability Act 1997 (or its successor, the Public Governance, Performance and Accountability Act 2013) may govern how the Department of Defence appropriates and spends money to pay this charge. The instrument does not mention those Acts, but they are relevant to the licensee’s internal compliance.

The instrument does not interact directly with taxation laws. The spectrum access charge is not an income tax or GST. It is a regulatory charge. The payment may be treated as an expense of the Defence department. There is no interaction with competition law or consumer protection law. The bands are exclusive to Defence, so there is no market allocation to third parties.

If the licensee were to transfer the licence (under the Act), the charge obligation may pass to the transferee. The instrument does not address transfer; the Act would govern that. The instrument’s silence means the charge is tied to the original licensee unless the Act provides otherwise.

The text provided shows no amendments to this instrument. It appears to be the original version as made. The instrument was made in 2021, as indicated by its name. The commencement was the day after registration on the Federal Register of Legislation. The repeal date of 26 April 2036 is set from the start. There is no evidence of amendment by later instruments. The determination is likely a one off instrument addressing the re issue of specific licences for a defined period. Because the charges were fixed and the election deadline passed long ago, there would be no reason to amend the instrument. The ACMA might have issued a replacement instrument for subsequent re issues, but that would be a separate determination.

No litigation history is mentioned in the source. Given that the instrument sets a charge payable by the Department of Defence to the ACMA, both being Commonwealth entities, it is unlikely any litigation has arisen. If there were a dispute, it would likely be internal or administrative. The instrument is not the type that attracts third party challenge, as it does not affect commercial spectrum rights. There is no reported case law involving this specific determination. It is possible that the validity of the charge under section 294 could be challenged on constitutional grounds or on the basis of procedural fairness, but no such challenge appears in publicly available records. The instrument is likely to have been complied with administratively without court involvement.

Election window is one day before payment due date. The election must be given to the ACMA before 5 April 2021. The lump sum payment is due on 6 April 2021. That means the licensee must decide and deliver a written notice at least one day before the payment deadline. If the notice is not received by 5 April, the lump sum is automatically payable. There is no provision for late elections or for the ACMA to extend the deadline. Practical risk: if the election is sent by post or email on 5 April, there may be timing disputes. The instrument says “before 5 April 2021”, so even on the day itself might be acceptable if before midnight, but with ACMA office hours, a hard deadline is likely.

Instalment premium is not simply interest. The total instalment payments are $16,534,480 compared to the lump sum of $16,191,243, a difference of $343,237. However, the first instalment is due on the same day as the lump sum. So the premium is effectively paid on the deferred portion (the remaining four instalments of $3,306,896 each). The total deferred amount is $13,227,584. The premium of $343,237 spread over four years is an approximate 2.6% total surcharge, or roughly 0.65% per annum simple interest. That is a very low financing cost. If the licensee’s internal discount rate is higher than that, it would be rational to choose instalments. But if the licensee has access to low cost government borrowing, the lump sum may still be preferable. The instrument does not disclose any discount rate assumption.

No exit from instalment plan. Once the licensee elects instalments, it must continue paying the full schedule. There is no provision to prepay the remaining balance at a reduced total. If the licensee later wishes it had paid the lump sum, it cannot switch back. The election is irrevocable.

Repeal does not extinguish liability. The instrument is repealed in 2036, but the charge obligations arose in 2021. Even after repeal, any unpaid amounts remain due. The repeal only stops the instrument from applying to future licences.

The charge applies per licence, not per band. Sections 6 and 7 set charges for (presumably) one licence each. The instruments says “the 20 GHz Defence band spectrum licence”, not “licences”. There may be only one licence per band. If there were multiple licences in the same band, the charge would apply separately to each, but the wording suggests a single licence.

No indexation or review. The charge amount is fixed for the full term. If inflation rises, the real cost to the licensee falls. Conversely, if spectrum values increase, the Commonwealth is locked into the lower amount. The determination does not provide for periodic adjustment.

Compliance is straightforward if the licensee is aware of the deadlines. The licensee must first confirm that it holds the 20 GHz and 30 GHz Defence band spectrum licences being re issued. It must then decide whether to pay the lump sum of $16,191,243 per licence by 6 April 2021, or to elect the instalment plan. To elect instalments, the licensee must provide a written notice to the ACMA before 5 April 2021 clearly stating that it elects for subsection 6(3) or 7(3) (or both) to apply. The notice should identify the licence to which the election relates. The licensee should retain a copy and evidence of delivery (e.g., hand delivery with receipt, email with read receipt, or registered post).

If the election is not made by the deadline, the licensee must pay the lump sum by 6 April 2021. Payment should be made in accordance with the ACMA’s usual payment methods for spectrum charges (e.g., electronic funds transfer to the ACMA’s account). The licensee should ensure the payment is identified correctly with the relevant licence.

If the election is made, the licensee must pay the first instalment of $3,306,896 by 6 April 2021, and then pay the same amount on each anniversary of the day the licence came into force. The instrument does not specify the exact anniversary date, but if the licence came into force on 6 April 2021, the subsequent payments are due on 6 April of each year until a total of $16,534,480 is paid. That likely means payments in 2022, 2023, 2024, and 2025. The licensee should set up internal payment schedules and ensure appropriations are made in advance.

The licensee must also comply with the underlying Act’s conditions for the licence, but that is beyond this instrument. The instrument itself imposes no reporting or record keeping obligations beyond proof of payment. However, prudent compliance would include maintaining records of the election notice, payment receipts, and any correspondence with the ACMA. If the licensee is the Department of Defence, the relevant office should coordinate with the ACMA’s spectrum licensing team to confirm receipt of the election notice and avoid defaults.

Because the payment amounts are substantial, the licensee should ensure internal financial delegations are in place to authorise the payments. The decision to pay lump sum vs instalments should be based on a cost benefit analysis: the lump sum saves $343,237, but requires a larger upfront cash flow. If the Defence department’s budget is constrained, the instalment option may be preferred despite the higher total cost. The election must be made before 5 April 2021, so the analysis must be done early. The instrument gives no opportunity to change after that date.

After the licence term ends (presumably 2036), the instrument is repealed, but compliance with the charge obligations would already be complete. Future re issues would be governed by a new determination.