Division 2 Associates, specified group of persons and affiliations
13 Meaning of associate and specified group of persons
associate means:
(a) in relation to a person that is a body corporate:
(i) a director or secretary of the body; or
(ii) a related body corporate; or
(iii) a director or secretary of a related body corporate; or
(iv) an individual who controls at least 15% of the voting power or holds at least 15% of the issued shares in the body; or
(b) in relation to a person that is an individual:
(i) the individual’s spouse; or
(ii) the individual’s de facto partner within the meaning of the Acts Interpretation Act 1901; or
(iii) a body corporate in which the individual controls at least 15% of the voting power or holds at least 15% of the issued shares; or
(iv) a body corporate of which the individual is a director or secretary; or
(v) a body corporate that is a related body corporate in relation to a body corporate of which the individual is a director or secretary; or
(c) in relation to any person (the first person) – any other person (other than the Commonwealth when represented by the ACMA) who is party to a relevant agreement with the first person that either or both:
(i) is for the use by one party to the agreement of spectrum licensed to another party to the agreement under a spectrum licence for a part of the spectrum referred to in a relevant re-allocation declaration;
(ii) relates to the acquisition of a spectrum licence for a part of the spectrum referred to in a relevant re-allocation declaration.
Note: The spectrum referred to in the relevant re-allocation declarations is the frequency band 3575 MHz to 3700 MHz.
(2) For paragraph (1)(c) of the definition of associate, a relevant agreement means an agreement, arrangement or understanding:
(a) whether formal or informal, or partly formal and partly informal; and
(b) whether written or oral, or partly written and partly oral; and
(c) whether or not having legal or equitable force and whether or not based on legal or equitable rights;
other than a roaming services agreement or an agreement between carriers provided for by or under the Telecommunications Act 1997 or Part XIC of the Competition and Consumer Act 2010.
(3) In this instrument:
specified group of persons means either of the following:
(a) a person and all associates of that person;
Division Div 2 - Radiocommunications (Spectrum Licence Allocation — 3.6 GHz Band) Determination 2018 - Associates, specified group of persons and affiliations | Zoe
(b) subject to subsection (4) – any 2 or more groups referred to in paragraph (a) that have at least one member in common.
(4) For paragraph (b) of the definition of specified group of persons in subsection (3), an individual is taken not to be a member in common between 2 or more groups that are comprised of a person (the relevant person) and the associates of that relevant person where all of the following apply:
(a) the individual is providing services as a company secretary of one or more related bodies corporate of the relevant person in each of the groups;
(b) the individual is not providing those services as an employee of or direct contractor to any of those related bodies corporate, but as an employee of or contractor to a person that:
(i) is not in any of the groups; and
(ii) has been engaged by each of those related bodies corporate, under a contract or other legally binding arrangement, to provide the services of a company secretary;
(c) the individual is not a director of any of those relevant persons or related bodies corporate;
(d) each of those related bodies corporate is incorporated outside Australia.
14 Affiliation between applicants or bidders
Two applicants or bidders are affiliated if the applicants or bidders are in the same specified group of persons.
Note: Paragraph (b) of the definition of specified group of persons in subsection 13(3) means that 2 applicants or bidders are affiliated if they have an associate in common. However, see subsection 13(4).
15 Affiliation between applicant or bidder and existing relevant band licensee
An applicant or bidder is affiliated with an existing relevant band licensee if the applicant or bidder and the existing relevant band licensee are in the same specified group of persons.
Note 1: Paragraph (b) of the definition of specified group of persons in subsection 13(3) means that an applicant or bidder is affiliated with an existing relevant band licensee if the applicant or bidder and the existing relevant band licensee have an associate in common. However, see subsection 13(4).
Note 2: An existing relevant band licensee may also be an applicant or bidder.
16 Information relevant to considering whether applicants, bidders or existing relevant band licensees are affiliated
(1) When considering under this instrument:
(a) whether 2 or more applicants or bidders are affiliated; or
(b) whether one or more applicants or bidders are affiliated with one or more existing relevant band licensees;
the ACMA must have regard to:
(c) completed application forms given under paragraph 29(1)(a) or paragraph 35(2)(a); and
(d) statutory declarations and statements made under this instrument.
(2) The ACMA may have regard to any other information that it considers relevant.
Part 3—Confidentiality
17 Meaning of confidential information
In this instrument:
confidential information, in relation to an applicant or bidder, means:
(a) documents the applicant or bidder has given to the ACMA for the purposes of the auction; and
(b) information provided to the bidder under section 41 for the purpose of participating in the auction; and
(c) a start demand of the bidder for a clock round of the primary stage; and
(d) a posted demand of the bidder for a clock round of the primary stage; and
(e) a bid made by the bidder in the auction; and
(f) a proposed bid by the applicant or bidder or a bid under consideration by the applicant or bidder; and
(g) a proposed start demand by the applicant or bidder for the first clock round of the primary stage or a proposed start demand under consideration by the applicant or bidder for the first clock round of the primary stage; and
(h) the applicant’s or bidder’s bidding strategy; and
(i) the amount the applicant or bidder is willing to pay for:
(i) a lot or combination of lots; or
(ii) a part or parts of the spectrum; and
(j) information that, if disclosed, could be reasonably expected to affect or be capable of affecting:
(i) bids made or proposed to be made by another applicant or bidder; or
(ii) start demands for the first clock round of the primary stage or proposed start demands for the first clock round of the primary stage by another applicant or bidder; or
(iii) another applicant’s or bidder’s bidding strategy; and
(k) information that, if disclosed, could be reasonably expected to affect, or be capable of affecting, the outcome of the auction.
18 Obligation to not disclose confidential information
(1) An applicant or bidder, or a related person who has knowledge of the applicant’s or bidder’s confidential information, or a contractor of an applicant or bidder who has knowledge of the applicant’s or bidder’s confidential information, must not, either directly or indirectly, disclose the applicant’s or bidder’s confidential information about the auction to any person.
(2) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, or a contractor of an applicant or bidder, disclosing information about the auction:
(a) for the purpose of obtaining advice relating to the auction from a person in the person’s professional capacity; or
(b) for the purpose of obtaining finance to make a payment in relation to spectrum licences in the auction; or
(c) to the ACMA; or
(d) for an applicant or bidder – to a related person of that applicant or bidder; or
(e) for a related person of an applicant or bidder – to that applicant or bidder, or to another related person of the same applicant or bidder; or
(f) for a contractor of an applicant or bidder – to that applicant or bidder, or to a related person of the same applicant or bidder; or
(g) as authorised by this instrument or as otherwise required by law.
Note: In some cases, the person to whom the information is disclosed may become a related person or contractor who is required to give a deed of confidentiality to the ACMA, see section 22.
(3) Subsection (1) does not prohibit an applicant or bidder, or a related person of an applicant or bidder, or contractor of an applicant or bidder, disclosing information about the auction if:
(a) the information is already publicly available; and
(b) the information was not made available because of a breach of this section.
19 Duration of confidentiality obligation
Section 18 applies to an applicant or bidder, a related person of the applicant or bidder, and contractor of the applicant or bidder until:
(a) the bidder is notified under section 56 that the bidder is not a winning bidder; or
(b) the applicant, as a withdrawn applicant, is notified under section 57 that the applicant’s confidentiality obligation is at an end; or
(c) the bidder, as a winning bidder, makes a statement under section 58.
20 Reporting breach of confidentiality
An applicant or bidder, or related person of an applicant or bidder, or contractor of an applicant or bidder, who discloses confidential information in breach of section 18 or who receives the confidential information of another applicant or bidder must report the disclosure or receipt in writing to the ACMA as soon as possible, but no later than 2 working days after becoming aware the disclosure or receipt has occurred.
21 Notice of breach of confidentiality
(1) If the ACMA has reason to believe that an applicant or bidder, or a related person of the applicant or bidder, or a contractor of the applicant or bidder, may have disclosed confidential information in breach of section 18 or received confidential information as a result of a breach of section 18, the ACMA must:
(a) tell the applicant or bidder, giving details of the matter; and
(b) ask the applicant or bidder to make submissions about the matter; and
(c) state a deadline for the receipt of submissions that is no more than 5 working days after the date of the request.
(2) If the ACMA forms the belief before the end of the auction period, the ACMA is not required to tell the applicant or bidder before the auction period ends, but must tell the applicant or bidder as soon as practicable after the auction period ends.
22 Deed of confidentiality required from related persons and contractors
(1) A related person of an applicant or bidder who has knowledge of the applicant’s or bidder’s confidential information must give the ACMA a deed of confidentiality if the person is:
(a) an employee of the applicant or bidder; or
(b) an employee of a related body corporate of the applicant or bidder that provides services to the applicant or bidder.
(2) A contractor of an applicant or bidder who has knowledge of the applicant’s or bidder’s confidential information must give the ACMA a deed of confidentiality.
(3) Subsection (2) does not apply to a contractor under a contract:
(a) for the purpose of obtaining advice relating to the auction from a person in the person’s professional capacity; or
(b) for the purpose of obtaining finance to make a payment in relation to spectrum licences in the auction.
(4) If a person mentioned in paragraph (1)(a) or (1)(b) or subsection (2) receives knowledge of the applicant’s confidential information before the application deadline, the person must give the ACMA the deed of confidentiality before the application deadline.
Note: A deed of confidentiality form must be provided by the ACMA as part of the applicant information package on the ACMA’s website at www.acma.gov.au, see paragraphs 26(1)(h) and 27(1)(h).
Part 4—Procedures before auction
Division 1 Preliminary
23 Auction manager
The ACMA must, in writing, appoint:
(a) a member within the meaning given by the Australian Communications and Media Authority Act 2005; or
(b) a member of the ACMA staff; or
(c) a person whose services are made available for the purposes of the ACMA under paragraph 55(1)(a) of the Australian Communications and Media Authority Act 2005;
to manage the auction.
24 Setting application fee
Before the ACMA publishes a notice inviting applications for the auction, it must set the amount of the application fee.
25 Application fee not refundable
An application fee paid under this instrument is not refundable in any circumstances, including if an applicant or bidder withdraws, or is taken to withdraw, from the auction, or is not permitted to make a bid in the auction.
Division 2 Advertising auction
26 Advertising of auction by the ACMA
(1) The ACMA must publish on its website a notice that:
(a) describes the parts of the spectrum to be auctioned; and
(b) gives a brief description of the way the auction will be conducted; and
(c) states that the auction will be conducted in accordance with this instrument; and
(d) invites persons to apply to the ACMA to take part in the auction; and
(e) states the date and time (the application deadline) before which:
(i) completed application forms, completed deeds of acknowledgement and completed deeds of confidentiality by applicants must be received by the ACMA; and
(ii) the application fee must be paid to the ACMA on behalf of the Commonwealth; and
(f) states the date and time (the eligibility deadline) before which:
(i) completed eligibility nomination forms must be received by the ACMA; and
(ii) eligibility payments must be made to the ACMA on behalf of the Commonwealth, or deeds of financial security must be given to the ACMA on behalf of the Commonwealth, or a combination of both; and
(g) states that applications may only be withdrawn before the eligibility deadline; and
(h) states that the applicant information package for the auction can be obtained from the ACMA’s website at the electronic address given in the notice.
(2) If a matter mentioned in the notice changes, the ACMA must publish another notice giving details of the change on its website.
(3) The ACMA may publish the information required by subsections (1) and (2) by additional methods, and may publish other information about the auction by any method.
27 Applicant information package
(1) The applicant information package must contain the following information:
(a) the re-allocation declarations;
(b) the spectrum licence limits direction;
(c) the marketing plan;
(d) this instrument;
(e) a guide to the auction;
(f) an application form approved by the ACMA, with instructions for completing and giving the application form to the ACMA;
(g) a deed of acknowledgement form approved by the ACMA, that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument;
(h) a deed of confidentiality form approved by the ACMA, that includes a statement that an applicant, or related person of an applicant, or contractor of an applicant, agrees not to disclose confidential information before section 18 ceases to apply to the relevant applicant or related person or contractor;
(i) the amount of the application fee for the auction;
(j) the application deadline;
(k) statutory declaration forms and the form for a statement under section 58 for the purposes of this instrument;
(l) an eligibility nomination form approved by the ACMA, with instructions for completing and giving the eligibility nomination form to the ACMA;
(m) a deed of financial security form approved by the ACMA;
(n) information about making an eligibility payment, or giving a deed of financial security, or both making an eligibility payment and giving a deed of financial security, for securing initial eligibility points;
(o) the eligibility deadline;
(p) advice that the eligibility deadline is the last time for withdrawal from the auction;
(q) the physical address for giving documents to the ACMA;
(r) the email address for giving documents to the ACMA;
(s) the fax number for giving documents to the ACMA.
(2) The applicant information package may also contain other information about the auction.
(3) The ACMA must publish the applicant information package on its website as soon as practicable after notice of the auction is published under subsection 26(1).
(4) If the ACMA makes any change to the contents of the applicant information package after it is published, the ACMA must publish a notice giving details of the change on its website.
28 Value of initial eligibility points, lot ratings, minimum spectrum requirements and starting prices
(1) The ACMA must set the following amounts:
(a) the dollar value of each initial eligibility point for the primary stage of the auction;
(b) the lot rating for the lots of each product in the auction;
(c) the options for the minimum spectrum requirement, in lots, that an applicant may select for lots of a product in the auction;
(d) the starting price for the lots of each product in the auction.
Note: Paragraph (d) relates to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act and is disallowable under section 42 of the Legislation Act 2003.
(2) After setting the amounts mentioned in paragraphs (1)(a), (1)(b), (1)(c) and (1)(d), the ACMA must approve an application form and eligibility nomination form.
(3) The ACMA must ensure that the eligibility nomination form includes a requirement for and a guide to:
(a) specifying the number of lots of each product wanted by an applicant as the start demands of the applicant for the first clock round of the primary stage, at the starting price for the lots of the product; and
(b) calculating and specifying the initial eligibility points of an applicant based on the specified start demands of the applicant; and
(c) in relation to each product, either:
(i) not selecting a minimum spectrum requirement; or
(ii) selecting only one option as the minimum spectrum requirement;
for the lots of each product.
(4) The ACMA must publish the amounts set under subsection (1) and the application form and eligibility nomination form on its website as soon as practicable after notice of the auction is published under subsection 26(1).