2  Commencement

  This instrument commences on the day after the day it is registered on the Federal Register of Legislation.

Note: The Federal Register of Legislation may be accessed, free of charge, at www.legislation.gov.au.

3  Authority

  This instrument is made under section 60 and section 294 of the Radiocommunications Act 1992.

Note 1: To the extent this instrument is made under subsection 60(1) of the Act, it is not disallowable under section 42 of the Legislation Act 2003 (see paragraph 44(2)(b) of the Legislation Act 2003 and item 29 in the table set out in regulation 10 of the Legislation (Exemptions and Other Matters) Regulation 2015). To the extent that this instrument is made under subsection 294(1) of the Act, it is disallowable.

Note 2: The following provisions of this instrument are made under subsection 294(1) of the Act, and all other provisions are made under subsection 60(1) of the Act:

(a) section 10;

(b) paragraph 28(1)(a);

(c) paragraph 28(1)(c);

(d) subsection 28(2);

(e) paragraph 43(1)(a);

(f) paragraph 43(1)(c);

(g) subsection 43(2);

(h) Division 2 of Part 6;

(i) clause 17 of Schedule 2;

(j) clause 18 of Schedule 3;

(k) clause 7 of Schedule 4;

(l) clause 8 of Schedule 4;

(m) paragraph 9(c) of Schedule 4;

(n) Schedule 5.

4  Interpretation

 (1) In this instrument, unless the contrary intention appears:

850/900 MHz band means the following parts of the spectrum:

 (a) 814 MHz to 825 MHz;

 (b) 859 MHz to 870 MHz;

 (c) 890 MHz to 915 MHz;

 (d) 935 MHz to 960 MHz.

Note: For the parts of the 850/900 MHz band consisting of 824 MHz to 825 MHz and 869 MHz to 870 MHz, see clauses 10 and 11 of Schedule 4.

850 major population product has the same meaning as in subsection 5(1) of the marketing plan.

850 regional product has the same meaning as in subsection 5(1) of the marketing plan.

900 lower major population product has the same meaning as in subsection 5(1) of the marketing plan.

900 lower product: see subsection 5(6).

900 lower regional product has the same meaning as in subsection 5(1) of the marketing plan.

900 upper major population product has the same meaning as in subsection 5(1) of the marketing plan.

900 upper product: see subsection 5(7).

900 upper regional product has the same meaning as in subsection 5(1) of the marketing plan.

ABN has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999.

ACMA Act means the Australian Communications and Media Authority Act 2005.

ACMA staff has the meaning given by section 3 of the ACMA Act.

ACN has the meaning given by section 9 of the Corporations Act 2001.

Act means the Radiocommunications Act 1992.

affiliated: see section 16.

allocated means:

 (a) for a lot of a product, other than a set-aside lot – allocated as a result of the primary stage or secondary stage; or

 (b) for a set-aside lot – allocated as a result of the procedures in Schedule 1; or

 (c) for the downshift metropolitan lot and the downshift regional lot – allocated as a result of clause 10 of Schedule 4.

allocation limits: see sections 13 and 14.

applicant means a person who has applied to become registered as a bidder.

Note: A person may apply under section 31, section 38 or section 48.

applicant information package: see subsection 30(1).

application deadline: see subsection 27(1).

application fee: see section 25.

application form: see paragraph 28(3)(a).

ARBN has the meaning given by section 9 of the Corporations Act 2001.

assignment bid: see subclauses 5(1), 5(5) and 5(6) of Schedule 4.

assignment price: see subclauses 8(2) and 8(3), and paragraph 9(c), of Schedule 4.

assignment round: see clause 2 of Schedule 4.

assignment stage means the part of the auction:

 (a) commencing at the start of the first assignment round; and

 (b) ending immediately after the auction manager provides the results for every assignment round in accordance with clauses 12 and 13 of Schedule 4.

Note: The assignment stage also deals with the allocation of the downshift metropolitan lot and the downshift regional lot.

assignment winner: see subclause 8(8) and paragraph 9(b) of Schedule 4.

associate: see subsection 15(1).

auction means the auction of lots held in accordance with this instrument, and includes the allocation (if any) of set-aside lots, the downshift metropolitan lot and the downshift regional lot.

auction manager: see section 24.

auction period means the period:

 (a) commencing on the eligibility deadline; and

 (b) ending immediately after the auction manager provides the results for the auction in accordance with section 76.

auction system means the system the ACMA makes available to bidders to participate in the auction.

balance of the winning price: see subsection 75(2).

bid:

 (a) in a clock round for the primary stage – see subclause 2(1) of Schedule 2; or

 (b) in a round for the secondary stage – see subclause 3(1) of Schedule 3; or

 (c) in an assignment round for the assignment stage – means an assignment bid.

bidder means a person registered by the ACMA as a bidder under section 54.

clock round: see subsection 2(1) of Schedule 2.

confidential information: see section 18.

deed of acknowledgement means a deed of acknowledgement form that has been completed and executed by an applicant as a deed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument or with the requirements for executing a deed.

Note: Strict compliance with the form is required.

deed of acknowledgement form: see paragraph 28(3)(b).

deed of confidentiality means a deed of confidentiality form that has been completed and executed as a deed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument or with the requirements for executing a deed.

Note: Strict compliance with the form is required.

deed of confidentiality form: see paragraph 28(3)(d).

deed of financial security means a deed of financial security form that has been completed and executed as a deed in accordance with this instrument and with any instructions provided on or with the form, to the extent those instructions are not inconsistent with this instrument or with the requirements for executing a deed.

deed of financial security form: see paragraph 28(3)(c).

downshift metropolitan lot has the meaning given by subsection 5(1) of the marketing plan.

downshift regional lot has the meaning given by subsection 5(1) of the marketing plan.

eligibility deadline: see subsection 27(2) and paragraph 40(9)(a).

eligibility nomination form: see paragraphs 31(5)(a) and 41(9)(b).

eligibility payment: see section 42 and subsection 46(4).

eligibility points: see subclause 12(1) of Schedule 2.

entry, during the pre-bidding phase, means an entry in the auction system made by a bidder under subclause 3(3) of Schedule 2.

extended eligibility deadline: see paragraphs 43(3)(b) and 51(11)(a).

final clock round: see clause 16 of Schedule 2.

lot: see subsection 5(1).

lot rating: see paragraphs 28(1)(b) and 43(1)(b).

major population product: see subsection 5(4).

marketing plan means the Radiocommunications Spectrum Marketing Plan (850/900 MHz Band) 2021.

maximum eligibility points:

 (a) for an applicant – means the number of eligibility points specified in an eligibility nomination form or updated eligibility nomination form, in accordance with subsection 41(1); or

 (b) for a bidder – means the maximum number of eligibility points secured by the bidder under section 42.

minimum spectrum requirement: see subsection (3).

new applicant:

 (a) for sections 38 and 39 – see subsection 38(1); or

 (b) for sections 48, 49 and 50 – see subsection 48(1).

new application deadline: see paragraph 43(3)(a).

posted demand: see subclause 2(1) of Schedule 2.

pre-bidding phase: see paragraph 59(1)(b).

primary price: see subclause 17(3) of Schedule 2.

primary stage means the part of the auction:

 (a) commencing at the start of the pre-bidding phase; and

 (b) ending immediately after the auction manager provides the results for the final clock round in accordance with clauses 18 and 19 of Schedule 2.

primary winner: see subclause 17(1) of Schedule 2.

product: see subsection 5(2).

provisional minimum spectrum requirement: see subsection (4).

provisional start demand, of an applicant for lots of a product, means the number of lots of the product specified by the applicant in a completed eligibility nomination form or completed updated eligibility nomination form in accordance with any of the following:

 (a) subparagraph 31(7)(a)(i);

 (b) paragraph 38(7)(a);

 (c) paragraph 46(2)(a);

 (d) subparagraph 48(4)(a)(i).

pseudorandom means using computer-generated numbers that satisfy a statistical test for randomness, but are not generated by a truly random physical process.

re-allocation declaration means the Radiocommunications (Spectrum Re-allocation─850/900 MHz Band) Declaration 2020.

regional product: see subsection 5(5).

register means the register of bidders maintained by the ACMA under section 53.

related body corporate has the same meaning as in the Corporations Act 2001.

related person, in relation to an applicant or bidder that is a body corporate, means any of the following:

 (a) a director or secretary of the applicant or bidder;

 (b) an employee of the applicant or bidder;

 (c) an employee of a related body corporate that provides services to the applicant or bidder.

relevant associate has the same meaning as in subsection 4(1) of the spectrum licence limits direction.

relevant group of persons: see subsections 15(4) and 15(5).

residual lot: see subclause 1(1) of Schedule 3.

round: for the secondary stage, see subclause 3(1) of Schedule 3.

secondary price: see subclause 18(3) of Schedule 3.

secondary stage means the rounds of the auction:

 (a) commencing with the first round for a residual lot of a product; and

 (b) ending immediately after the auction manager provides the results for the final round of the secondary stage in accordance with clauses 19 and 20 of Schedule 3.

secondary winner: see subclauses 15(4) and 16(2) of Schedule 3.

set-aside applicant means any of the following:

 (a) one of:

 (i) Optus Mobile Pty Limited (ACN 054 365 696) (Optus); or

 (ii) a relevant associate of Optus;

 (b) one of:

 (i) TPG Telecom Limited (ACN 096 304 620) (TPG); or

 (ii) a relevant associate of TPG.

set-aside lot: see clause 2 of Schedule 1.

set-aside participant: see subsection (2).

set-aside price: see paragraph 28(1)(c) and paragraph 43(1)(c).

size: see subsection 5(3).

spectrum licence limits direction means the Radiocommunications (Spectrum Licence Limits – 850/900 MHz Band) Direction 2021.

start demand: see subclause 2(1) of Schedule 2.

starting price: see paragraph 28(1)(a) and paragraph 43(1)(a).

supply: see subclause 2(1) of Schedule 2.

total assignment price: see subclause 8(9) of Schedule 4.

total size: see paragraph 5(3)(b).

updated eligibility nomination form: see subsection 43(6) and paragraph 51(11)(b).

varied eligibility deadline: see subsection 40(3).

varied eligibility nomination form: see paragraph 40(7)(a).

varied extended eligibility deadline: see subsection 51(6).

varied updated eligibility nomination form: see paragraph 51(9)(a).

winning bidder means any of the following:

 (a) a primary winner;  

 (b) a secondary winner;

 (c) a set-aside participant;

who has frequency ranges assigned to lots of a product at the end of the assignment stage.

winning price: see subsection 75(1).

working day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory, New South Wales or Victoria.

Note: A number of other expressions used in this instrument are defined in the Act, including the following:

(a) ACCC;

(b) ACMA;

(c) frequency band;

(d) licence;

(e) radiocommunications device;

(f) spectrum;

(g) spectrum licence.

In this instrument, register has a different meaning to that given to Register by section 5 of the Act.

 (2) In this instrument, the following provisions determine whether a person is, or whether no person is, a set-aside participant:

 (a) paragraph 31(3)(b);

 (b) paragraph 31(4)(b);

 (c) paragraph 38(5)(d);

 (d) subsection 40(5);

 (e) paragraph 40(6)(c);

 (f) subsection 45(2);

 (g) subsection 45(3);

 (h) paragraph 48(2)(b);

 (i) paragraph 51(8)(f);

 (j) paragraph 52(7)(a);

 (k) subparagraph 52(7)(b)(iii).

 (3) In this instrument:

 (a) for a set-aside participant, the minimum spectrum requirement, in relation to lots of a product other than:

 (i) a 900 upper product; or

 (ii) a 900 lower product;

  means the number of lots of the product entered by, or taken to be entered by, the participant as its minimum requirement in the pre-bidding phase of the primary stage in accordance with paragraph 3(3)(b) of Schedule 2; or

 (b) for any other bidder, the minimum spectrum requirement, in relation to lots of a product other than a 900 lower product, means the number of lots of the product entered by, or taken to be entered by, the bidder as its minimum requirement in the pre-bidding phase of the primary stage in accordance with paragraph 3(3)(b) of Schedule 2.

Note 1: No bidder may select a minimum spectrum requirement for a 900 lower product.

Note 2: No set-aside participant may select a minimum spectrum requirement for a 900 upper product.

Note 3: The only number of lots that may be selected as a minimum spectrum requirement for a product is 2 lots.

 (4) In this instrument:

 (a) for a set-aside participant, the provisional minimum spectrum requirement in relation to lots of a product other than:

 (i) a 900 upper product; or

 (ii) a 900 lower product;

  means the number of lots of the product selected by the participant as its minimum requirement in a completed eligibility nomination form in accordance with any of the following:

 (iii) subparagraph 31(7)(a)(iii);

 (iv) paragraph 38(7)(a);

 (v) paragraph 46(2)(c);

 (vi) subparagraph 48(4)(a)(iii); or

 (b) for any other applicant, the provisional minimum spectrum requirement in relation to lots of a product other than a 900 lower product, means the number of lots of the product selected by the applicant as its minimum requirement in a completed eligibility nomination form in accordance with any of the following:

 (i) subparagraph 31(7)(a)(iii);

 (ii) paragraph 38(7)(a);

 (iii) paragraph 46(2)(c);

 (iv) subparagraph 48(4)(a)(iii).

Note 1: No applicant may select a provisional minimum spectrum requirement for a 900 lower product.

Note 2: No set-aside participant may select a provisional minimum spectrum requirement for a 900 upper product.

Note 3: The only number of lots that may be selected as a provisional minimum spectrum requirement for a product is 2 lots.

 (5) In this instrument, a reference to a part of the spectrum, a frequency band or a frequency range includes all frequencies that are greater than but not including the lower frequency, up to and including the higher frequency.

Note: This means the lower number in the reference to a part of the spectrum, a frequency band or a frequency range is not included in the part of the spectrum, the frequency band or the frequency range.

 (6) In this instrument, a reference to time is a reference to the legal time in the Australian Capital Territory.

5  Lots and products

 (1) In this instrument, unless the contrary intention appears, lot, other than in relation to the downshift metropolitan lot and the downshift regional lot, means a unit of a product that is available in the auction.

 (2) In this instrument, unless the contrary intention appears, each of the following is a product:

 (a) the 850 major population product;

 (b) the 850 regional product;

 (c) the 900 lower major population product;

 (d) the 900 lower regional product;

 (e) the 900 upper major population product;

 (f) the 900 upper regional product.

Note 1: In accordance with the marketing plan, there are 2 lots of the 850 major population product, 2 lots of the 850 regional product, 1 lot of the 900 lower major population product, 1 lot of the 900 lower regional product, 4 lots of the 900 upper major population product and 4 lots of the 900 upper regional product.

Note 2: However, there may be fewer than 4 lots of the 900 upper major population product and fewer than 4 lots of the 900 upper regional product available in the primary stage: see Schedules 1 and 2.

 (3) In this instrument:

 (a) the size of each lot of a product, when expressed in MHz, is the lot bandwidth set out for the product in subsection 10(6) of the marketing plan; and

 (b) the size or total size of lots of a product, when expressed in MHz, is the total lot bandwidth of those lots; and

 (c) the size of each of the downshift metropolitan lot and the downshift regional lot, when expressed in MHz, is the lot bandwidth set out for that lot in subsection 10(6) of the marketing plan.

Note 1: In accordance with the marketing plan, the size of a single lot of each product is 2 x 5 MHz (or 10 MHz).

Note 2: In accordance with the marketing plan, the size of each of the downshift metropolitan lot and the downshift regional lot is 2 x 1 MHz (or 2 MHz).

 (4) In this instrument, unless the contrary intention appears, each of the following is a major population product:

 (a) the 850 major population product;

 (b) the 900 lower major population product;

 (c) the 900 upper major population product.

 (5) In this instrument, unless the contrary intention appears, each of the following is a regional product:

 (a) the 850 regional product;

 (b) the 900 lower regional product;

 (c) the 900 upper regional product.

 (6) In this instrument, unless the contrary intention appears, each of the following is a 900 lower product:

 (a) the 900 lower major population product;

 (b) the 900 lower regional product.

 (7) In this instrument, unless the contrary intention appears, each of the following is a 900 upper product:

 (a) the 900 upper major population product;

6  References to other instruments

  In this instrument, unless the contrary intention appears:

 (a) a reference to any other legislative instrument is a reference to that other legislative instrument as in force from time to time; and

 (b) a reference to any other kind of instrument or writing is a reference to that other instrument or writing as in force or existing from time to time.

Note 1: For references to Commonwealth Acts, see section 10 of the Acts Interpretation Act 1901; and see also subsection 13(1) of the Legislation Act 2003 for the application of the Acts Interpretation Act 1901 to legislative instruments.

Note 2: All Commonwealth Acts and legislative instruments are registered on the Federal Register of Legislation.

Note 3: See section 314A of the Act.

7  Giving documents to the ACMA

 (1) A document may be given to the ACMA under this instrument by:

 (a) delivering the document to the physical address specified in the applicant information package; or

 (b) emailing the document, in accordance with subsection (2), to the email address specified in the applicant information package.

Note: Subsections 31(10), 38(8), 46(5) and 48(7) have additional requirements for a deed of financial security given by email.

 (2) If a document is emailed:

 (a) the document must be included as an attachment; and

 (b) the document must be:

 (i) if the document is a statutory declaration, statement under section 70 or deed – in a PDF format or another format approved by the auction manager; or

 (ii) for any other document – in a Word or PDF format, or another format approved by the auction manager.

 (3) The auction manager may approve a format for documents for the purposes of either or both subparagraphs (2)(b)(i) and (ii).

 (4) A deed of financial security may be given to the ACMA under this instrument as one or more deeds of financial security.

 (5) If more than one deed of financial security is given to the ACMA for the purposes of a single applicant or bidder, each such deed of financial security must be given a unique identifier.

 (6) If a deed of financial security is given to the ACMA under this instrument, it is given to the ACMA on behalf of the Commonwealth.

8  Statutory declaration for body corporate

  If this instrument requires a body corporate to make a statutory declaration, the statutory declaration must be made by a director or secretary of the body corporate.

9  Signing or executing documents other than deeds and statutory declarations

 (a) this instrument permits or requires a person to give the ACMA or the auction manager a document; and

 (b) that document is required to be signed or executed; and

 (c) the document is not required to be made as a statutory declaration or executed as a deed;

  then, unless the contrary intention appears, the document may be signed or executed electronically.

 (a) this instrument permits or requires a person to give the ACMA or the auction manager a document; and

 (b) that document is not a statutory declaration or a deed; and

 (c) that document is required to be signed or executed; and

 (d) the signature or execution is required to be witnessed;

  then, unless the contrary intention appears, the signature or execution may be witnessed by audio-visual link, if the person witnessing the signature or execution (witness):

 (e) observes the person signing or executing the document (signatory) doing so in real time; and

 (f) confirms the signature or execution was witnessed by signing the document or a copy of the document; and

 (g) is reasonably satisfied that the document the witness signs is the same document, or a copy of the document, signed or executed by the signatory; and

 (h) endorses the document, or the copy of the document, with a statement specifying the method used to witness the signature or execution of the signatory.

Note: Other Commonwealth legislation, and State and Territory legislation, may allow for deeds or statutory declarations to be signed or executed electronically, or for the signature or execution of deeds or statutory declarations to be witnessed by audio-visual link or by other means.

10  Payments of amounts

 (1) Except where otherwise specified, this section applies to all amounts paid, or to be paid, to the ACMA under this instrument.

 (2) The amount must be paid in Australian currency.

 (3) The amount must be paid by bank cheque or electronic transfer.

 (4) An amount that is paid by electronic transfer must be made by any of the following methods:

 (a) direct transfer into the bank account that has the following details:

 (i) Bank – ANZ Bank;

 (ii) Branch – Belconnen;

 (iii) BSB number – 012-951;

 (iv) Account number – 8379 24272;

 (v) Account name – ACMA Official Administered Receipts;

 (b) for a winning bidder’s balance of the winning price – BPAY payment:

 (i) only if, under Schedule 5, a winning bidder has been notified by the ACMA of the bidder’s balance of the winning price; and

 (ii) using the electronic payment scheme called BPAY, operated in co-operation between Australian financial institutions, which enables a person to make a payment as a participant in BPAY, either via telephone or internet access;

 (c) for a winning bidder’s balance of the winning price – credit card payment:

 (i) only if, under Schedule 5, a winning bidder has been notified by the ACMA of the bidder’s balance of the winning price; and

 (ii) into the bank account with the details set out in paragraph (a).

 (5) An amount is taken to have been paid by a deadline specified in this instrument if:

 (a) the ACMA receives a bank cheque for that amount on or before the deadline; or

 (b) both:

 (i) the ACMA receives evidence that an electronic transfer of the full amount was made on or before the deadline (such as a transfer receipt); and

 (ii) the amount is received in the ACMA’s bank account no later than 3 working days after the deadline; or

 (c) the ACMA receives other evidence which satisfies the ACMA that the person making the payment has taken all reasonable steps to pay the amount on or before the deadline.

 (6) An amount due under this instrument is not paid in full if bank charges or government duties imposed on a payment reduce the net payment to less than the amount due.

Note: The effect of subsection (6) is that an applicant or bidder must add the value of any bank charge or government duty to the amount of a payment.

 (7) If an amount payable under this instrument is not an amount of whole dollars, the amount is rounded up to the next dollar.

 (8) If an amount is paid, or is to be paid, to the ACMA under this instrument, it is paid, or it is to be paid, to the ACMA on behalf of the Commonwealth.

 (9) If an amount is paid, or is to be paid, by the ACMA under this instrument, it is paid, or it is to be paid, by the ACMA on behalf of the Commonwealth.

Note: This section also applies to spectrum access charges payable under section 294 of the Act. As such, this section relates to Division 2 of Part 6 of this instrument and is disallowable under section 42 of the Legislation Act 2003.

11  Giving documents to bidders

 (1) If a provision in this instrument requires, authorises or permits the auction manager to give information to a bidder, or to notify or tell a bidder of a matter, whether or not in writing, the auction manager may give the information to the bidder, or notify or tell the bidder of the matter, by using the auction system.

 (2) Subsection (1) does not limit any provision of this instrument, and the auction manager is not obliged to give information to a bidder, or notify or tell a bidder of a matter, by using the auction system.

Part 2—General limits on allocation of spectrum

Division 1 General allocation limits

12  Interpretation

  In this Part:

800 MHz band means the following parts of the spectrum:

 (a) 825 MHz to 845 MHz;

 (b) 870 MHz to 890 MHz.

carrier has the same meaning as in the Telecommunications Act 1997.

major population area has the meaning given by subsection 5(1) of the marketing plan.

public mobile telecommunications service has the same meaning as in the Telecommunications Act 1997.

regional area has the meaning given by subsection 5(1) of the marketing plan.

relevant spectrum licence means a spectrum licence in the 800 MHz band that is in force immediately before the application deadline.

roaming services agreement means an agreement between two or more carriers for the principal purpose of enabling the supply of public mobile telecommunications services by one of those other carriers, in geographic locations where another of those carrier’s public mobile telecommunications services are not available.

sub-1 GHz band means the part of the spectrum up to 1 GHz.

13  Meaning of allocation limits

  In this instrument, a reference to the allocation limits is a reference to the requirement that the allocation of spectrum licences under this instrument must not result in a person, or relevant group of persons, having permission to use more spectrum in the sub-1 GHz band than the limit set out in section 14.

Note: The Minister has given a direction to the ACMA, under subsection 60(10) of the Act, that limits be imposed on the aggregate parts of the spectrum in the sub-1 GHz band that, under existing spectrum licences and as a result of the allocation of spectrum licences under Subdivision B of Division 1 of Part 3.2 of the Act, may be used by a person or relevant group of persons. See section 7 of the spectrum licence limits direction.

14  Allocation limits

 (1) No person, or relevant group of persons, may, as a result of the allocation of spectrum licences under this instrument, use:

 (a) more than an aggregate of 82 MHz of the sub-1 GHz band under spectrum licences in the major population area; or

 (b) more than an aggregate of 92 MHz of the sub-1 GHz band under spectrum licences in the regional area.

 (2) For the purposes of subsection (1), if:

 (a) a person or relevant group of persons holds a relevant spectrum licence that authorises the operation of radiocommunications devices in one or more parts of the major population area (but not the entire major population area); and

 (b) the population of that part of the major population area, or the aggregate population of those parts of the major population area, is insignificant;

  the relevant spectrum licence is to be treated as if it did not apply in the major population area.

 (3) For the purposes of paragraph (2)(b):

 (a) the population of a part of the major population area is insignificant if, and only if, the population of that part of the major population area is less than 25% of the total population of the major population area determined in accordance with the most recent data in the HCIS – List of Population Data Document published by the ACMA on its website, as that document existed at the time the spectrum licence limits direction was made; and

 (b) the aggregate population of parts of the major population area is insignificant if, and only if, the aggregate population of those parts of the major population area is less than 25% of the total population of the major population area determined in accordance with the most recent data in the HCIS – List of Population Data Document published by the ACMA on its website, as that document existed at the time the spectrum licence limits direction was made.

Note: The HCIS – List of Population Data Document may be accessed, free of charge, from the ACMA’s website at www.acma.gov.au.

Division 2 Associates, relevant group of persons and affiliations

15  Meaning of associate and relevant group of persons

 (1) In this instrument, 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 the re-allocation declaration;

 (ii) relates to the acquisition of a spectrum licence for a part of the spectrum referred to in the re-allocation declaration.

 (2) For paragraph (1)(c), 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) For paragraph (1)(c), a reference to part of the spectrum referred to in the re-allocation declaration is a reference to the 850/900 MHz band.

 (4) In this instrument, relevant group of persons means either of the following:

 (a) a person and all associates of that person; or

 (b) subject to subsection (5) – any 2 or more groups referred to in paragraph (a) that have at least one member in common.

 (5) For the purposes of paragraph (4)(b), 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 (the company secretarial services) to one or more related bodies corporate of the relevant person in each of the groups;

 (b) the individual is providing the company secretarial services through a person or entity (the third party service provider) that:

 (i) is not in any of the groups; and

 (ii) carries on a business for the provision of professional services, including company secretarial services; and

 (iii) has, in the ordinary course of carrying on that business, been separately and independently engaged by an entity within each of those groups, under a contract or other legally binding arrangement, to provide the company secretarial services;

 (c) the individual is not, otherwise than by reason of providing the company secretarial services, an associate of any of the relevant persons;

 (d) each of the related bodies corporate to which the individual is providing the company secretarial services is incorporated outside Australia.

16  Affiliation between applicants or bidders

  Two applicants or bidders are affiliated if the applicants or bidders are in the same relevant group of persons.

Note: Paragraph 15(4)(b) and this section mean that 2 applicants or bidders are affiliated if they have an associate in common. However, see subsection 15(5).

17  Information relevant to considering whether applicants or bidders are affiliated

 (1) When considering under this instrument whether 2 or more applicants or bidders are affiliated, the ACMA must have regard to:

 (a) completed application forms; and

 (b) updated application forms; and

 (c) statutory declarations and statements given in accordance with this instrument.

 (2) The ACMA may have regard to any other information that it considers relevant.

Part 3—Confidentiality

18  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 applicant under section 32, section 39, or section 49, or to the bidder under paragraphs 54(2)(d) and (e), for the purpose of participating in the auction; and

 (c) a provisional start demand of the applicant; and

 (d) a start demand of the bidder for a clock round of the primary stage; and

 (e) a posted demand of the bidder for a clock round of the primary stage; and

 (f) a bid made by the bidder in the auction; and

 (g) a proposed bid by the applicant or bidder, or a bid under consideration by the applicant or bidder; and

 (h) a proposed provisional start demand or proposed start demand of the applicant or bidder, or a proposed provisional start demand or proposed start demand under consideration by the applicant or bidder; and

 (i) the bidding strategy of the applicant or bidder; and

 (j) 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 in the 850/900 MHz band; and

 (k) 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) provisional start demands or proposed provisional start demands of another applicant or bidder; or

 (iii) start demands or proposed start demands of another applicant or bidder; or

 (iv) the bidding strategy of another applicant or bidder; and

 (l) information that, if disclosed, could be reasonably expected to affect, or be capable of affecting, the outcome of the auction.

19  Obligation not to disclose confidential information

 (1) Each of the following persons must not, either directly or indirectly, disclose confidential information of an applicant or bidder about the auction to any person:

 (a) the applicant or bidder;

 (b) a related person of the applicant or bidder who has knowledge of the confidential information;

 (c) a contractor of an applicant or bidder who has knowledge of the confidential information.

 (2) Subsection (1) does not prevent a person 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 the auction; or

 (c) to the ACMA; or

 (d) for an applicant or bidder – to a related person of the applicant or bidder; or

 (e) for a related person of an applicant or bidder – to the 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 the applicant or bidder, or to a related person of the same applicant or bidder; or

 (g) for the purpose of announcing or publishing that the applicant or bidder is participating in the auction; or

 (h) as authorised by this instrument; or

 (i) 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 23.

 (3) Subsection (1) does not prohibit a person disclosing information about the auction if:

 (a) the information is already publicly available; and

 (b) the information was not made publicly available because of a breach of this section.

20  Duration of confidentiality obligation

  Section 19 applies to an applicant or bidder, a related person of the applicant or bidder, and a contractor of the applicant or bidder, until:

 (a) the applicant, as a withdrawn applicant, is notified under section 73 that the applicant’s confidentiality obligation is at an end; or

 (b) in relation to a bidder (whether or not a winning bidder) – the ACMA announces or publishes the information mentioned in subsection 79(1).

Note: The ACMA announces or publishes the information mentioned in subsection 79(1) only after winning bidders are notified in accordance with subsection 79(2).

21  Reporting breach of confidentiality

  An applicant or bidder, or a related person of an applicant or bidder, or a contractor of an applicant or bidder, who:

 (a) discloses confidential information in breach of section 19; or

 (b) 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.

22  Notice of breach of confidentiality

 (1) This section applies 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:

 (a) disclosed confidential information in breach of section 19; or

 (b) received confidential information as a result of a breach of section 19.

 (2) In relation to the applicant or bidder whose confidential information has been disclosed, 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.

 (3) If the ACMA forms the belief before the end of the auction period, the ACMA is not required to act under subsection (2) before the auction period ends, but must act under that subsection as soon as practicable after the auction period ends.

23  Deed of confidentiality required from related persons and contractors

 (1) A related person of an applicant or bidder who has knowledge of confidential information of the applicant or bidder 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 confidential information of the applicant or bidder 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 the auction.

 (4) If a person to whom paragraph (1)(a) or (1)(b), or subsection (2), applies receives knowledge of the applicant’s confidential information before the application deadline or new application deadline (if there is one), the person must give the ACMA the deed of confidentiality before the relevant 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: www.acma.gov.au. See paragraphs 29(1)(h) and 30(1)(k).

Part 4—Procedures before auction

Division 1 Preliminary

24  Auction manager

 (1) The ACMA must, in writing, appoint a person (auction manager) to manage the auction.

 (2) The person appointed as the auction manager must be:

 (a) a member within the meaning of the ACMA Act; 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 ACMA Act.

25  Application fee

  Before it publishes a notice under subsection 29(1), the ACMA must, in writing, set a fee (application fee) to be paid by applicants.

26  Application fee not refundable except in certain circumstances

 (1) Subject to subsection (2), an application fee paid by an applicant or bidder under this instrument is not refundable in any circumstances, including:

 (a) if the applicant withdraws from the auction; or

 (b) if the applicant or bidder is taken to withdraw from the auction; or

 (c) if the applicant or bidder is not permitted to make a bid in the auction.

 (2) An application fee paid by an applicant under this instrument is refundable if both the following occur:

 (a) the ACMA varies a starting price under paragraph 43(1)(a); and

 (b) the applicant withdraws its application before the extended eligibility deadline by giving the ACMA notice in writing.

 (3) If subsection (2) applies in relation to an applicant, the ACMA must refund the application fee no later than 6 months after the applicant withdraws its application.

27  Application deadline and eligibility deadline

 (1) Before it publishes a notice under subsection 29(1), the ACMA must, in writing, set a date and time (application deadline) before which:

 (a) completed application forms, completed deeds of acknowledgement and completed deeds of confidentiality by applicants must be received by the ACMA; and

 (b) the application fee must be paid to the ACMA.

 (2) Before it publishes a notice under subsection 29(1), the ACMA must, in writing, set a date and time (eligibility deadline) before which:

 (a) completed eligibility nomination forms must be received by the ACMA; and

 (b) eligibility payments must be made to the ACMA, or deeds of financial security must be given to the ACMA, or a combination of both.

28  Starting prices, lot ratings and forms

 (1) The ACMA must set the following amounts:

 (a) the starting price for the lots of each product in the auction;

 (b) the lot rating for the lots of each product in the auction;

 (c) the set-aside price for set-aside lots of the 900 upper major population product and for set-aside lots of the 900 upper regional product.

Note: Paragraphs (a) and (c) relate to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act, and are disallowable under section 42 of the Legislation Act 2003.

 (2) For the purposes of subsection (1)(c):

 (a) the set-aside price for set-aside lots of the 900 upper major population product must be:

 (i) at least 120% of the starting price for the lots of the 900 upper major population product; and

 (ii) not greater than 130% of the starting price for the lots of the 900 upper major population product;

 (b) the set-aside price for set-aside lots of the 900 upper regional product must be:

 (i) at least 120% of the starting price for the lots of the 900 upper regional product; and

 (ii) not greater than 130% of the starting price for the lots of the 900 upper regional product.

Note: Subsection (2) 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.

 (3) After setting the amounts in subsection (1), the ACMA must approve the following forms:

 (a) a form (application form) for applying to participate in the auction that complies with subsection (4);

 (b) a form (deed of acknowledgement form) that includes a statement to the effect that an applicant understands and agrees to be bound by the provisions of this instrument;

 (c) a form (deed of financial security form) for securing an applicant’s maximum eligibility points;

 (d) a form (deed of confidentiality form) that includes a statement to the effect that the person giving the deed agrees not to disclose confidential information before section 19 ceases to apply to the person;

 (e) one or more forms for the purposes of the following:

 (i) section 35;

 (ii) paragraph 38(6)(c);

 (iii) section 50;

 (iv) section 70.

 (4) The application form must include a requirement for, and a guide to:

 (a) identifying whether an applicant is a set-aside applicant; and

 (b) if the applicant is a set-aside applicant – stating whether the set-aside applicant elects to take up a set-aside lot of both:

 (a) the 900 upper major population product; and

Division 2 Advertising the auction

29  Notice advertising auction

 (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 application deadline; and

 (f) states the eligibility deadline; and

 (g) states that applications may only be withdrawn before the eligibility deadline or the extended eligibility deadline (if there is one); 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.

30  Applicant information package

 (1) The applicant information package must contain the following documents and information:

 (a) the re-allocation declaration;

 (b) the spectrum licence limits direction;

 (c) the marketing plan;

 (d) this instrument;

 (e) a guide to the auction;

 (f) the starting price for the lots of each product in the auction;

 (g) the lot rating for the lots of each product in the auction;

 (h) the set-aside price for set-aside lots of the 900 upper major population product, and the set-aside price for set-aside lots of the 900 upper regional product;

 (i) the application form;

 (j) the deed of acknowledgement form;

 (k) the deed of confidentiality form;

 (l) the amount of the application fee;

 (m) the application deadline, and information about the circumstances in which there may be a new application deadline;

 (n) each form approved by the ACMA for the purposes of the following:

 (i) section 35;

 (ii) paragraph 38(6)(c);

 (iii) section 50;

 (iv) section 70;

 (o) the deed of financial security form;

 (p) the eligibility deadline, and information about the circumstances in which there may be an extended eligibility deadline;

 (q) advice that the eligibility deadline, or the extended eligibility deadline (if there is one), is the last time for withdrawal from the auction;

 (r) the physical address for giving documents to the ACMA;

 (s) the email address 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 29(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.

Division 3 Application to participate in the auction

31  Making an application

 (1) A person may apply to become registered as a bidder in the auction by:

 (a) subject to subsection (2), giving the ACMA a completed application form; and

 (b) giving the ACMA a deed of acknowledgement executed by the applicant; and

 (c) giving the ACMA a deed of confidentiality executed by the applicant; and

 (d) paying the application fee;

  before the application deadline.

 (2) If the applicant is a set-aside applicant, to apply to become registered as a bidder in the auction the person must give the ACMA a completed application form stating whether the person elects to take up a set-aside lot of both:

 (a) the 900 upper major population product; and

 (3) If one or more set-aside applicants give the ACMA a completed application form that, in each case, states that the set-aside applicant elects to take up a set-aside lot of both the 900 upper major population product and the 900 upper regional product:

 (a) subsection 62(1) applies in relation to the auction; and

 (b) each of those set-aside applicants is a set-aside participant.

 (4) If no set-aside applicant gives the ACMA a completed application form that states that the set-aside applicant elects to take up a set-aside lot:

 (a) subsection 62(2) applies in relation to the auction; and

 (b) there are no set-aside participants.

 (5) As soon as practicable after the application deadline, and at least 15 working days before the eligibility deadline, the ACMA must:

 (a) approve a form (eligibility nomination form) that complies with subsection (6); and

 (b) tell each applicant, in writing, how many set-aside participants there are (if any); and

 (d) tell each applicant, in writing, the supply of:

 (i)  the 900 upper major population product; and

 (ii) the 900 upper regional product; and

 (e) give each applicant a copy of the eligibility nomination form; and

 (f) give each applicant 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 an applicant to secure its maximum eligibility points.

Note: For the 900 upper products, supply depends upon whether one or more set-aside applicants have elected to take up set-aside lots.

 (6) The eligibility nomination form must include a requirement for, and a guide to:

 (a) specifying the number of lots of each product desired by an applicant as the provisional start demands of the applicant before the pre-bidding phase, at the starting price for the lots of the product; and

 (b) calculating and specifying the maximum eligibility points of an applicant based on those provisional start demands; and

 (7) After the application deadline, and no later than the eligibility deadline, an applicant must:

 (a) give the ACMA a completed eligibility nomination form, which:

 (i) specifies the number of lots of each product desired by the applicant as valid provisional start demands of the applicant before the pre-bidding phase of the primary stage, at the starting price for the lots of the product; and

 (ii) specifies the maximum eligibility points of the applicant, based on those specified provisional start demands; and

 (iii) in relation to the lots of each product, other than:

 (C) does not select a provisional minimum spectrum requirement; or

 (D) selects 2 lots as the provisional minimum spectrum requirement;

  for the lots of the product; and

Note: If the eligibility payment or deed of financial security, or both, is not for the amount calculated in accordance with section 42, that may have consequences for the applicant in the auction.

 (8) Subject to Division 5, if an applicant fails to comply with subsection (7):

 (a) for a set-aside participant – the set-aside participant is not entitled to bid during the primary stage and the secondary stage; or

 (9) Subject to subsections 45(1), 46(2) and 46(4), an applicant may give the ACMA an updated, additional or replacement document:

 (a) for a document mentioned in paragraph (1)(a), (1)(b) or (1)(c) – at any time until the application deadline, but not after the application deadline; or

 (b) for a document mentioned in paragraph (7)(a) or, subject to section 42, paragraph (7)(b) – at any time until the eligibility deadline, but not after the eligibility deadline.

 (10) If a deed of financial security (for subparagraph (7)(b)(ii) or (iii)) is given to the ACMA by email before the eligibility deadline, the original deed must be received by the ACMA no later than 3 working days after the eligibility deadline (or, if the ACMA agrees to a later time, the agreed time).

 (11) If an applicant fails to comply with subsection (10):

 (a) for a set-aside participant – the set-aside participant is not entitled to bid during the primary stage and the secondary stage; or

 (12) If subsection (8) or (11) applies, the ACMA must, in writing:

 (a) for a set-aside participant – tell the set-aside participant that they are not entitled to bid during the primary stage and the secondary stage; or

 (b) in any other case – tell the applicant that they are taken to have withdrawn their application.

32  Initial auction information provided to applicants

  After the application deadline, the ACMA must give each applicant the following:

33  Provisional start demand validity rules for application

  For the purposes of the following:

 (a) subparagraph 31(7)(a)(i);

 (b) paragraph 38(7)(a);

 (c) paragraph 46(2)(a);

 (d) subparagraph 48(4)(a)(i);

  a provisional start demand of an applicant, for lots of a product, is valid if both the following apply in relation to the provisional start demand:

 (e) the total size of the sum of:

 (i)  the provisional start demand of the applicant for the lots of the product (the relevant product); and

 (ii) if the relevant product is a major population product – the sum of the provisional start demands of the applicant for lots of each other major population product; and

 (iii) if the relevant product is a regional product – the sum of the provisional start demands of the applicant for lots of each other regional lot; and

 (iv) if the relevant product is a major population product and the applicant is a set-aside participant – 1 set-aside lot of the 900 upper major population product; and

 (v) if the relevant product is a regional product and the applicant is a set-aside participant – 1 set-aside lot of the 900 upper regional product;

  does not exceed the applicant’s allocation limits (when expressed in MHz); and

 (f) the number of lots for the applicant’s provisional start demand for the product is not greater than the number of lots for the supply of the product.

Note 2: For the 900 upper products, supply depends upon whether one or more set-aside applicants have elected to take up set-aside lots.

34  Applicants to notify the ACMA if application information incorrect

 (1) If an applicant knows that any of the information it has given to the ACMA for the purposes of its application is incorrect, or has become incorrect, the applicant must immediately give the ACMA the correct information.

 (2) The auction manager may correct information in an application if the auction manager is satisfied that the information is incorrect, such as it containing a clerical error or an obvious mistake or omission.

 (3) However, after the application deadline, the auction manager cannot make changes to the following statements in an application:

 (a) if, in its application, a set-aside applicant stated that it elects to take up a set-aside lot of both the 900 upper major population product and the 900 upper regional product – that statement;

 (b) if, in its application, a set-aside applicant stated that it did not elect to take up a set-aside lot of both the 900 upper major population product and the 900 upper regional product – that statement.

 (4) A statement in an application that is mentioned in subsection (3) is taken to be correct for all purposes.

Note: Before the application deadline, an applicant may give the ACMA a replacement application in accordance with subsection 31(9).

35  Applicant to make statutory declaration

 (1) After the application deadline, the ACMA must:

 (a) give each applicant details about the identity of all other applicants, and the persons identified in applications as the associates of the other applicants; and

 (b) ask each applicant to make a statutory declaration stating whether the applicant is affiliated with another applicant and, if so, identifying the other applicant and giving details of the affiliation.

 (2) The ACMA must state a deadline, at least 10 working days after the date of the request, before which the statutory declaration must be received by the ACMA.

36  Failure to give statutory declaration

  If an applicant does not give the ACMA a statutory declaration in accordance with section 35, the applicant is taken to have withdrawn its application.

Note: If an applicant that is taken to have withdrawn its application under this section is a set-aside participant, see section 40 of this instrument and paragraph 6(2)(c) of the spectrum licence limits direction.

37  Procedure if ACMA satisfied applicants are affiliated

 (1) If the ACMA is satisfied that two or more applicants are affiliated, the ACMA must, in writing:

 (a) notify the affiliated applicants and tell them the basis on which the ACMA is satisfied the applicants are affiliated; and

 (b) notify the affiliated applicants that to participate in the auction:

 (i) each affiliated applicant must withdraw its application, and a new applicant must submit an application under section 38; or

 (ii) each affiliated applicant, but one, must withdraw its application.

 (2) Within 8 working days of the ACMA notifying the affiliated applicants under subsection (1), the applicants must notify the ACMA in writing which option under paragraph (1)(b) the applicants have decided to take.

 (3) If the affiliated applicants do not notify the ACMA within those 8 working days, each of the affiliated applicants is taken to have withdrawn its application.

 (4) If, within those 8 working days, some of the affiliated applicants withdraw their applications but more than one affiliated applicant does not, each of the remaining affiliated applicants is taken to have withdrawn its application.

 (5) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (3) or (4).

Note: If an applicant that is taken to have withdrawn its application under subsection (3) or (4) is a set-aside participant, see section 40 of this instrument and paragraph 6(2)(c) of the spectrum licence limits direction.

38  Requirements for new application

 (1) If the members of a group of affiliated applicants notified by the ACMA under subsection 37(1) decide that a new applicant (new applicant) is to submit a new application, the new applicant must be a body corporate whose only members are one or more of those affiliated applicants.

 (2) The new applicant must, within 8 working days of the ACMA notifying the affiliated applicants under subsection 37(1):

 (a) give the ACMA a completed application form; and

 (b) pay the application fee.

 (3) If the ACMA receives a completed application form and application fee under subsection (2), the ACMA must give each applicant (including the new applicant) updated details about the identity of all other applicants, and the persons identified in applications as the associates of the other applicants.

 (4) The updated information does not need to include those applicants who have already withdrawn.

 (5) If:

 (a) the new applicant is a set-aside applicant; and

 (b) the completed application form given under subsection (2) states that the set-aside applicant elects to take up a set-aside lot of both the 900 upper major population product and the 900 upper regional product;

 (c) subsection 62(1), if it did not already apply, applies in relation to the auction; and

 (d) the new applicant is a set-aside participant.

 (6) An application is not valid unless the new applicant, no later than 3 working days after the ACMA gives the new applicant the updated information (or, if the ACMA agrees to a later time, the agreed time):

 (a) gives the ACMA a deed of acknowledgement executed by the new applicant; and

 (b) gives the ACMA a deed of confidentiality executed by the new applicant; and

 (c) makes and gives the ACMA a statutory declaration that the new applicant is not affiliated with any other applicant mentioned in the updated information.

 (7) The new applicant must, no later than the eligibility deadline or extended eligibility deadline (if there is one), whichever is the case (or if the ACMA agrees to a later time, the agreed time):

 (a) give the ACMA:

 (i) a completed eligibility nomination form, which includes the matters set out in paragraph 31(7)(a); or

 (ii) a completed updated eligibility nomination form, which includes the matters set out in subsection 46(2);

  as appropriate; and

Note: If the eligibility payment or deed of financial security, or both, is not for the amount calculated in accordance with section 42, that may have consequences for the new applicant in the auction.

 (8) If a deed of financial security (for subparagraph (7)(b)(ii) or (iii)) is given to the ACMA by email before the time specified in subsection (7), the original deed must be received by the ACMA no later than 3 working days after the eligibility deadline (or, if the ACMA agrees to a later time, the agreed time).

 (9) Subject to Division 5, if the new applicant fails to comply with subsection (7) or subsection (8):

 (a) for a set-aside participant – the set-aside participant is not entitled to bid during the primary stage and the secondary stage; or

 (b) in any other case – the new applicant is taken to have withdrawn its application.

 (10) If, at any time before the new applicant is registered as a bidder, the ACMA is satisfied that the new applicant is affiliated with one or more other applicants who have not withdrawn their applications (including another applicant who has applied under this section), the new applicant and each of the other applicants is taken to have withdrawn its application.

 (11) The ACMA must tell an applicant in writing:

 (a) for a set-aside participant – that under paragraph (9)(a) it is not entitled to bid during the primary stage and the secondary stage; or

 (b) for a new applicant – that it is taken to have withdrawn its application under paragraph (9)(b) or subsection (10) or its application is not valid under subsection (6); or

 (c) for any applicant – that it is taken to have withdrawn its application under subsection (10).

Note: If subsection (10) applies to a set-aside participant, see section 40 of this instrument and paragraph 6(2)(c) of the spectrum licence limits direction.

39  Initial auction information provided to new applicants

  After an application is made under section 38, the ACMA must give the new applicant the following:

40  Compliance or non-compliance with allocation limits procedures – effect on supply of 900 upper products

Application of section

 (a) an applicant is a set-aside participant; and

 (b) the applicant is taken to have withdrawn its application under section 36, section 37 or subsection 38(10); and

 (c) at the time the applicant is taken to have withdrawn its application, the ACMA has not set an extended eligibility deadline under paragraph 43(3)(b);

 (a) the ACMA receives an application under subsection 38(2); and

 (b) the applicant is a set-aside participant; and

 (c) the applicant is not taken to have withdrawn its application under subsection 38(10); and

 (d) at the time the ACMA receives the application, the ACMA has not set an extended eligibility deadline under paragraph 43(3)(b);

Effect on supply of 900 upper products

 (3) If this section applies, the ACMA may vary the eligibility deadline (varied eligibility deadline).

 (4) The varied eligibility deadline must be later than:

 (a) if the ACMA makes its decision under subsection (3) before the eligibility deadline – the eligibility deadline; or

 (b) if the ACMA makes its decision under subsection (3) after the eligibility deadline – the day on which the ACMA made its decision under subsection (3).

 (5) If this section applies because of subsection (1), the applicant that is taken to have withdrawn its application ceases to be a set-aside participant.

 (6) If, at the application deadline, there was at least one set-aside participant but, as a result of the operation of subsection (5), there are no set-aside participants, then from the time the last applicant is taken to have withdrawn its application:

 (a) subsection 62(1) ceases to apply in relation to the auction; and

 (b) subsection 62(2) applies in relation to the auction; and

 (c) there are no set-aside participants.

 (7) If the ACMA varies the eligibility deadline under subsection (3), the ACMA must:

 (a) approve a form (varied eligibility nomination form) that complies with subsection (8); and

 (b) tell each applicant, in writing, how many set-aside participants there are (if any); and

 (d) tell each applicant, in writing:

 (i) what the supply of the 900 upper major population product is; and

 (ii) what the supply of the 900 upper regional product is; and

 (e) give each applicant a copy of the varied eligibility nomination form.

Note: For the 900 upper products, supply depends upon whether one or more set-aside applicants have elected to take up set-aside lots.

 (8) The varied eligibility nomination form must include a requirement for, and a guide to:

 (a) specifying the number of lots of each product desired by an applicant as the provisional start demands of the applicant before the pre-bidding phase, at the starting price for the lots of the product; and

 (b) calculating and specifying the maximum eligibility points of an applicant based on those provisional start demands; and

 (9) If the ACMA varies the eligibility deadline under subsection (3), then in this instrument:

 (a) a reference to the eligibility deadline is taken to be a reference to the varied eligibility deadline; and

 (b) a reference to the eligibility nomination form is taken to be a reference to the varied eligibility nomination form; and

 (c) a reference to a completed eligibility nomination form is taken to be a reference to a completed varied eligibility nomination form.

Division 4 Maximum eligibility points, provisional minimum spectrum requirements and securing eligibility points

41  Maximum eligibility points and provisional minimum spectrum requirements

 (1) The maximum eligibility points that an applicant may specify in its completed eligibility nomination form (or updated eligibility nomination form) is the sum of:

 (a) the lot rating for the 850 major population product multiplied by the provisional start demand of the applicant for lots of that product; and

 (b) the lot rating for the 850 regional product multiplied by the provisional start demand of the applicant for lots of that product;

 (c) the lot rating for the 900 lower major population product multiplied by the provisional start demand of the applicant for lots of that product; and

 (d) the lot rating for the 900 lower regional product multiplied by the provisional start demand of the applicant for lots of that product; and

 (e) the lot rating for the 900 upper major population product multiplied by the provisional start demand of the applicant for lots of that product; and

 (f) the lot rating for the 900 upper regional product multiplied by the provisional start demand of the applicant for lots of that product.

Note: A person’s ability to use eligibility points in the auction is restricted by the allocation limits in sections 13 and 14. See also section 7 of the spectrum licence limits direction.

 (2) If, in its completed eligibility nomination form, an applicant has not selected 2 lots as its provisional minimum spectrum requirement for the lots of a product, the applicant is taken to have no provisional minimum spectrum requirement for the lots of that product.

Note 1: An applicant may select a provisional minimum spectrum requirement for the lots of any product, even if the applicant has not specified a provisional start demand for the lots of a product in its eligibility nomination form.

Note 2: There is only 1 lot of each of the 900 lower products, and no provisional minimum spectrum requirement can be selected for these products.

Note 3: A set-aside participant may not select a provisional minimum spectrum requirement for a 900 upper product. See subsection 4(4).

42  Eligibility payment or deed of financial security required for maximum eligibility points

 (1) An applicant must secure the applicant’s maximum eligibility points specified in its eligibility nomination form or updated eligibility nomination form by:

 (a) making a payment (eligibility payment) of the required amount to the ACMA; or

 (b) giving the ACMA a deed of financial security for the required amount; or

 (c) both:

 (i) making a payment (eligibility payment) for part of the required amount to the ACMA; and

 (ii) giving the ACMA a deed of financial security for the remainder of the required amount.

Note 1: For information on how an eligibility payment is made, see section 10. For information on how a deed of financial security is given, see section 7 and subsections (9) and (10).

Note 2: An applicant must act in accordance with this subsection by the eligibility deadline or, if there is one, the extended eligibility deadline: see subsections 31(7) and 48(4).

 (2) In this section, the required amount for an applicant (when expressed in dollars) is 10% of the sum of, for each product, the amount calculated by multiplying:

 (a) the sum of:

 (i) the provisional start demand of the applicant (when expressed in lots) for the product; and

 (ii) if the applicant is a set-aside participant and the product is the 900 upper major population product – 1 set-aside lot of the 900 upper major population product; and

 (iii) if the applicant is a set-aside participant and the product is the 900 upper regional product – 1 set-aside lot of the 900 upper regional product;

 by:

 (b) the starting price for the lots of the product.

 (3) If an applicant makes an eligibility payment or gives a deed of financial security, or both, for an amount (the incomplete amount) less than the required amount, the ACMA must, in writing, notify the applicant that:

 (a) the applicant has made an eligibility payment or given a deed of financial security, or both, whichever is the case, for less than the required amount; and

 (b) the applicant must, before the eligibility deadline or extended eligibility deadline (if there is one), or no later than 3 working days after the date of the notice, whichever is the later, make a payment (eligibility payment) or give a deed of financial security, or both, for the remainder of the required amount.

 (4) If the applicant:

 (a) is not a set-aside participant; and

 (b) does not comply with the notice given under subsection (3);

 (c) subject to paragraph (e), the maximum eligibility points secured by the applicant is calculated by:

 (i) first, dividing the incomplete amount by the required amount; and

 (ii) second, multiplying the quotient from subparagraph (i) by the maximum eligibility points specified by the applicant in its completed eligibility nomination form (or updated eligibility nomination form); and

 (iii) third, rounding down the result from subparagraph (ii) to the nearest whole point, or zero if the result is less than one; and

 (d) the provisional start demands of the applicant are reduced, commencing with a lot or lots of the product with the lowest lot rating being removed from the applicant’s provisional start demand, until the sum of the lot ratings for the remaining provisional start demands of the applicant is not greater than the maximum eligibility points secured by the applicant calculated under paragraph (c); and

 (e) if, for the applicant, after the steps in paragraphs (c) and (d) are taken, the difference between:

 (i) the maximum eligibility points secured by the applicant (the provisional secured points); and

 (ii) the sum of the lot ratings for the number of lots of each product for which the applicant has a provisional start demand;

  is greater than zero – that difference is subtracted from the provisional secured points to give the number of maximum eligibility points secured by the applicant.

 (5) If:

 (a) the applicant is a set-aside participant; and

 (b) the applicant does not comply with the notice given under subsection (3); and

 (c) the incomplete amount is greater than 10% of the sum of:

 (i) the starting price for lots of the 900 upper major population product; and

 (ii) the starting price for lots of the 900 upper regional product;

 (d) subject to paragraph (f), the maximum eligibility points secured by the applicant is calculated by:

 (i) first, subtracting 10% of the sum of the starting price for lots of the 900 upper major population product and the starting price for lots of the 900 upper regional product from the required amount (reduced required amount); and

 (ii) second, subtracting 10% of the sum of the starting price for lots of the 900 upper major population product and the starting price for lots of the 900 upper regional product from the incomplete amount (reduced incomplete amount); and

 (iii) third, dividing the reduced incomplete amount by the reduced required amount; and

 (iv) fourth, multiplying the quotient from subparagraph (iii) by the maximum eligibility points specified by the applicant in its completed eligibility nomination form (or updated eligibility nomination form); and

 (v) fifth, rounding down the result from subparagraph (iv) to the nearest whole point, or zero if the result is less than one; and

 (e) the provisional start demands of the applicant are reduced, commencing with a lot or lots of the product with the lowest lot rating being removed from the applicant’s provisional start demand, until the sum of the lot ratings for the remaining provisional start demands of the applicant is not greater than the maximum eligibility points secured by the applicant calculated under paragraph (d); and

 (f) if, after the steps in paragraphs (d) and (e) are taken, the difference between:

 (i) the maximum eligibility points secured by the applicant (the provisional secured points); and

 (ii) the sum of the lot ratings for the number of lots of each product for which the applicant has a provisional start demand;

  is greater than zero – that difference is subtracted from the provisional secured points to give the number of maximum eligibility points secured by the applicant.

 (6) If:

 (a) the applicant is a set-aside participant; and

 (b) the applicant does not comply with the notice given under subsection (3); and

 (c) the incomplete amount is less than 10% of the sum of:

 (i) the starting price for lots of the 900 upper major population product; and

 (ii) the starting price for lots of the 900 upper regional product;

  the applicant is not entitled to bid during the primary stage and the secondary stage.

 (7) If:

 (a) as a result of paragraph (4)(c), (4)(e), (5)(d) or (5)(f) the applicant has zero maximum eligibility points; or

 (b) as a result of paragraph (4)(d) or (5)(e), the applicant has no provisional start demands;

 (c) for a set-aside participant – the set-aside participant is not entitled to bid during the primary stage and the secondary stage; or

 (d) in any other case – the applicant is taken to have withdrawn its application.

 (8) The ACMA must:

 (a) if an applicant has had its maximum eligibility points and provisional start demands calculated in accordance with subsection (4) or (5) – enter the amounts calculated for the applicant in the register and tell the applicant in writing; or

 (b) if a set-aside participant is not entitled to bid during the primary stage or secondary stage as a result of subsection (6) or paragraph (7)(c) – tell the set-aside participant in writing; or

 (c) if an applicant is taken to have withdrawn its application under paragraph (7)(d) – tell the applicant in writing.

 (9) A deed of financial security must be executed by:

 (a) an authorised deposit-taking institution within the meaning of the Banking Act 1959; or

 (b) a person authorised to carry on business in Australia as an insurer under the Insurance Act 1973; or

 (c) a Lloyd’s underwriter authorised to carry on insurance business under Part VII of the Insurance Act 1973.

 (10) If a deed of financial security is executed by a person acting under a power of attorney for a body corporate, the applicant must give the ACMA a copy of the power of attorney with the deed.

 (11) If:

 (a) the ACMA is not satisfied that the person executing a deed of financial security, given to the ACMA by the applicant, is a person mentioned in subsection (9); or

 (b) an applicant fails to comply with subsection (10);

 (c) for a set-aside participant – the set-aside participant is not entitled to bid during the primary stage and the secondary stage; or

 (d) in any other case – the applicant is taken to have withdrawn its application.

 (12) The ACMA must:

 (a) if a set-aside participant is not entitled to bid during the primary stage and the secondary stage as a result of paragraph (11)(c) – tell the set-aside participant in writing; or

 (b) if an applicant is taken to have withdrawn its application under paragraph (11)(d) – tell the applicant in writing.

 (13) For paragraphs (4)(d) and (5)(e), if the lots of 2 or more products have the same lot rating, the ACMA may select the order in which the lots of those products are removed from the applicant’s provisional start demand.

Division 5 Changes to starting prices, and related matters

43  Varying starting prices, lot ratings and set-aside prices, and setting new deadlines

 (1) Not less than 5 working days before the eligibility deadline, the ACMA may:

 (a) vary a starting price set under paragraph 28(1)(a); and

 (b) if a starting price is varied, vary a lot rating set under paragraph 28(1)(b); and

 (c) if the starting price for a 900 upper product is varied, vary the set-aside price for set-aside lots of that product set under paragraph 28(1)(c).

Note: Varying a starting price or a set-aside price relates to Division 2 of Part 6 of this instrument for the purposes of section 294 of the Act. Accordingly, paragraphs 43(1)(a) and (c) are disallowable under section 42 of the Legislation Act 2003.

 (2) For the purposes of subsection (1)(c):

 (a) the set-aside price for set-aside lots of the 900 upper major population product must be:

 (i) at least 120% of the starting price for the lots of the 900 upper major population product, as varied; and

 (ii) not greater than 130% of the starting price for the lots of the 900 upper major population product, as varied;

 (b) the set-aside price for set-aside lots of the 900 upper regional product must be:

 (i) at least 120% of the starting price for the lots of the 900 upper regional product, as varied; and

 (ii) not greater than 130% of the starting price for the lots of the 900 upper regional product, as varied.

Note: Subsection (2) 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.

 (3) If the ACMA varies a starting price under paragraph (1)(a), the ACMA must:

 (a) set a time and date to replace the application deadline (new application deadline); and

 (b) set a time and date to replace the eligibility deadline (extended eligibility deadline).

 (4) The new application deadline must be at least 20 working days after the day the ACMA varied the starting price.

 (5) The extended eligibility deadline must be at least 30 working days after the new application deadline.

 (6) If the ACMA varies a starting price under paragraph (1)(a), then after the new application deadline the ACMA must approve a form (updated eligibility nomination form) that complies with subsection (7).

 (7) The updated eligibility nomination form must include a requirement for, and a guide to:

 (a) specifying the number of lots of each product desired by an applicant as the provisional start demands of the applicant before the pre-bidding phase, at the starting price for the lots of the product; and

 (b) calculating and specifying the maximum eligibility points of an applicant based on those provisional start demands; and

  for the lots of each product.

 (8) As soon as practicable after varying a starting price under paragraph (1)(a), the ACMA must publish on its website a notice setting out the following:

 (a) the details of the variation of the starting price;

 (b) if a lot rating was varied – the details of the variation of the lot rating;

 (c) if a set-aside price was varied – the details of the variation of the set-aside price;

 (d) the date and time of the new application deadline;

 (e) the date and time of the extended eligibility deadline.

44  Notice of updated documents

  As soon as practicable after the ACMA sets the deadlines under subsection 43(3), the ACMA must notify all applicants, in writing, that:

 (a) they must, before the extended eligibility deadline, give the ACMA a completed updated eligibility nomination form; and

 (b) they may, before the extended eligibility deadline, do either or both of the following:

 (i) make an additional eligibility payment to the ACMA for the purposes of section 42;

 (ii) give the ACMA an additional deed of financial security for the purposes of section 42;

  if necessary, as a result of the completed updated eligibility nomination form; and

 (c) they may, before the new application deadline, give the ACMA an application form to replace their application form.

45  Giving replacement application form

 (1) No later than the new application deadline, an applicant may give the ACMA an application form to replace its application form (original application form) given by the application deadline.

Note 1: If an applicant who validly gave the ACMA an original application form before the application deadline does not give the ACMA an application form under this subsection, and does not withdraw its application, its original application form continues to apply for the purposes of this instrument.

Note 2: A set-aside applicant may give the ACMA an application form under this subsection that contains a different election whether to take up set-aside lots, to that contained in its original application form.

 (a) as a result of its original application form, a set-aside applicant is a set-aside participant; and

 (b) in its completed application form given under subsection (1), the applicant states that it does not elect to take up a set-aside lot of both the 900 upper major population product and the 900 upper regional product;

  then, for the purposes of this instrument, the applicant ceases to be a set-aside participant from the new application deadline.

 (a) as a result of its original application form, a set-aside applicant is not a set-aside participant; and

 (b) in its completed application form given under subsection (1), the applicant states that it elects to take up a set-aside lot of both the 900 upper major population product and the 900 upper regional product;

  then, for the purposes of this instrument:

 (c) subsection 62(1), if it did not already apply, applies in relation to the auction; and

 (d) the applicant is a set-aside participant from the new application deadline.

46  Updating eligibility nomination form and financial security

 (1) As soon as practicable after the new application deadline, the ACMA must:

 (a) give each applicant a copy of the updated eligibility nomination form; and

 (b) if there is only one set-aside participant – tell each applicant the identity of that set-aside participant.

 (2) No later than the extended eligibility deadline, an applicant must give the ACMA a completed updated eligibility nomination form that:

 (a) specifies the number of lots of each product desired by the applicant as valid provisional start demands of the applicant before the pre-bidding phase of the primary stage, at the starting price for the lots of the product; and

 (b) specifies the maximum eligibility points of the applicant, based on those specified provisional start demands; and

 (iii) does not select a provisional minimum spectrum requirement; or

 (iv) selects 2 lots as the provisional minimum spectrum requirement;

 (3) If an applicant fails to comply with subsection (2):

 (a) for a set-aside participant – the set-aside participant is not entitled to bid during the primary stage and the secondary stage; or

 (4) No later than the extended eligibility deadline, an applicant may do either or both of the following:

 (a) make an additional payment (eligibility payment) to the ACMA for the purposes of section 42;

 (b) give the ACMA an additional deed of financial security for the purposes of section 42.

Note 1: If an applicant makes an eligibility payment or gives a deed of financial security (or both) for an amount less than the required amount, as defined in subsection 42(2), see subsections 42(3) to 42(8).

Note 2: If an applicant makes an eligibility payment or gives a deed of financial security (or both) for an amount more than the required amount, as defined in subsection 42(2), see subsection 73(2) or 74(2), or paragraph 77(1)(a), for the requirement to refund the whole or part of the eligibility payment. Otherwise, see subsection 75(2) in relation to calculating the balance of the winning price.

 (5) If a deed of financial security (for paragraph (4)(b)) is given to the ACMA by email before the extended eligibility deadline, the original deed must be received by the ACMA no later than 3 working days after the extended eligibility deadline (or, if the ACMA agrees to a later time, the agreed time).

 (6) If an applicant fails to comply with subsection (5):

 (a) for a set-aside participant – the set-aside participant is not entitled to bid during the primary stage and the secondary stage; or

 (7) The ACMA must:

 (a) if a set-aside participant is not entitled to bid during the primary stage and the secondary stage – tell the set-aside participant in writing; or

 (b) if an applicant is taken to have withdrawn its application under paragraph (3)(b) or (6)(b) – tell the applicant in writing.

47  Notice inviting new applicants to the auction

 (1) As soon as practicable after the ACMA sets the deadlines under subsection 43(3), the ACMA must publish on its website a notice that:

 (a) invites persons, who are not already applicants, to apply to the ACMA to take part in the auction; and

 (b) states the new application deadline; and

 (c) states the extended eligibility deadline; and

 (d) states that applications may only be withdrawn before the extended eligibility deadline; and

 (e) states that the applicant information package for the auction (with changes to the contents as a result of any decisions made by the ACMA under section 43) 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.

48  Making an application – new applicants to the auction

 (1) A person (new applicant) who:

 (a) is not already an applicant; or

 (b) was an applicant but withdrew, or was taken to have withdrawn, its application;

  may apply to become registered as a bidder in the auction by:

 (c) giving the ACMA a completed application form; and

 (d) giving the ACMA a deed of acknowledgement executed by the applicant; and

 (e) giving the ACMA a deed of confidentiality executed by the applicant; and

 (f) paying the application fee;

  before the new application deadline.

 (2) If one or more new applicants that are set-aside applicants give the ACMA a completed application form that, in each case, states that the set-aside applicant elects to take up a set-aside lot of both the 900 upper major population product and the 900 upper regional product:

 (a) subsection 62(1), if it did not already apply, applies in relation to the auction; and

 (b) each of those applicants is a set-aside participant.

 (3) As soon as practicable after the new application deadline, the ACMA must:

 (a) give each new applicant a copy of the updated eligibility nomination form;

 (b) if there is only one set-aside participant – tell each new applicant the identity of that set-aside participant.

 (4) After the new application deadline, and no later than the extended eligibility deadline, a new applicant must:

 (a) give the ACMA a completed updated eligibility nomination form, which:

 (i) specifies the number of lots of each product desired by the new applicant as valid provisional start demands of the new applicant before the pre-bidding phase of the primary stage, at the starting price for the lots of the product; and

 (ii) specifies the maximum eligibility points of the new applicant, based on those specified provisional start demands; and

 (iii) in relation to the lots of each product, other than:

 (C) does not select a provisional minimum spectrum requirement; or

 (D) selects 2 lots as the provisional minimum spectrum requirement;

  for the lots of the product; and

Note 1: If an applicant makes an eligibility payment or gives a deed of financial security (or both) for an amount less than the required amount, as defined in subsection 42(2), see subsections 42(3) to 42(8).

Note 2: If an applicant makes an eligibility payment or gives a deed of financial security (or both) for an amount more than the required amount, as defined in subsection 42(2), see subsection 73(2) or 74(2), or paragraph 77(1)(a), for the requirement to refund the whole or part of the eligibility payment. Otherwise, see subsection 75(2) in relation to calculating the balance of the winning price.

 (5) If a new applicant fails to comply with subsection (4):

 (a) for a set-aside participant – the set-aside participant is not entitled to bid during the primary stage and the secondary stage; or

 (b) in any other case – the new applicant is taken to have withdrawn its application.

 (6) A new applicant may give the ACMA an updated, additional or replacement document:

 (a) for a document mentioned in paragraph (1)(c), (1)(d) or (1)(e) – at any time until the new application deadline, but not after the new application deadline; or

 (b) for a document mentioned in paragraph (4)(a) or (4)(b) – at any time until the extended eligibility deadline, but not after the extended eligibility deadline.

 (7) If a deed of financial security (for subparagraph (4)(b)(ii) or (iii)) is given to the ACMA by email before the extended eligibility deadline, the original deed must be received by the ACMA no later than 3 working days after the extended eligibility deadline (or, if the ACMA agrees to a later time, the agreed time).

 (8) If the new applicant fails to comply with subsection (7):

 (a) for a set-aside participant – the set-aside participant is not entitled to bid during the primary stage and the secondary stage; or

 (9) The ACMA must:

 (a) if a set-aside participant is not entitled to bid during the primary stage and the secondary stage – tell the set-aside participant in writing; or

 (b) if an applicant is taken to have withdrawn its application under paragraph (5)(b) or (8)(b) – tell the applicant in writing.

49  Initial auction information provided to new applicants when starting prices changed

  After the new application deadline, the ACMA must give each new applicant under section 48 the following:

50  Statutory declarations and affiliations – where there are new applicants to the auction

 (1) If the ACMA receives an application from a new applicant in accordance with subsection 48(1), the ACMA must, after the new application deadline:

 (a) give each applicant (including each new applicant) details about the identity of all other applicants, and the persons identified in applications as the associates of the other applicants; and

 (b) ask each applicant (including each new applicant) to make a statutory declaration stating whether the applicant is affiliated with another applicant and, if so, identifying the other applicant and giving details of the affiliation.

 (2) The updated information does not need to include an applicant who has withdrawn its application.

 (3) The ACMA must state a deadline, at least 10 working days after the date of the request, before which the statutory declaration must be received by the ACMA.

 (4) If an applicant (including a new applicant) does not give the ACMA a statutory declaration in accordance with this section, the applicant is taken to have withdrawn its application.

Note: If an applicant that is taken to have withdrawn its application under subsection (4) is a set-aside participant, see section 51, and paragraph 6(2)(c) of the spectrum licence limits direction.

 (5) If the ACMA is satisfied that two or more applicants are affiliated, the procedures in sections 37 and 38 apply.

Note: If an applicant that is a set-aside participant is taken to have withdrawn its application under section 37 or section 38, as they apply because of this subsection, see section 51, and paragraph 6(2)(c) of the spectrum licence limits direction.

 (6) The ACMA must tell an applicant in writing if it is taken to have withdrawn its application under subsection (4).

51  Changes to applicants as a result of this Division – effect on supply of 900 upper products

Application of section

 (a) an applicant is a set-aside participant; and

 (b) the applicant has withdrawn its application under section 52 or is taken to have withdrawn its application under:

 (i) subsection 50(4); or

 (ii) because of the result of subsection 50(5) – section 37 or section 38; and

 (c) at the time the applicant withdraws, or is taken to have withdrawn, its application, the ACMA has set an extended eligibility deadline under paragraph 43(3)(b);

 (a) the ACMA receives an application under subsection 38(2); and

 (b) the applicant is a set-aside participant; and

 (c) at the time the ACMA receives the application, the ACMA has set an extended eligibility deadline under paragraph 43(3)(b);

 (a) the ACMA receives an application under subsection 48(1); and

 (b) the applicant is a set-aside participant;

 (4) If an applicant ceases to be a set-aside participant because of subsection 45(2), this section applies.

 (5) If an applicant becomes a set-aside participant because of subsection 45(3), this section applies.

Effect on supply of 900 upper products

 (6) If this section applies, the ACMA may vary the extended eligibility deadline (varied extended eligibility deadline).

 (7) The varied extended eligibility deadline must be later than:

 (a) if the ACMA makes its decision under subsection (6) before the extended eligibility deadline – the extended eligibility deadline; or

 (b) if the ACMA makes its decision under subsection (6) after the extended eligibility deadline – the day on which the ACMA made its decision under subsection (6).

 (8) If, as a result of the operation of one or more of:

 (a) subsection 45(2); or

 (b) section 50; or

 (c) because of the result of subsection 50(5) – section 37 or section 38;

  there is no applicant (other than a withdrawn applicant) who, in its completed application form, states that it elects to take up a set-aside lot, then from the last time a person ceases to be a set-aside participant:

 (d) subsection 62(1) ceases to apply in relation to the auction; and

 (e) subsection 62(2) applies in relation to the auction and

 (f) there are no set-aside participants.

 (9) If the ACMA varies the extended eligibility deadline under subsection (6), the ACMA must:

 (a) approve a form (varied updated eligibility nomination form) that complies with subsection (10); and

 (b) tell each applicant, in writing, how many set-aside participants there are; and

 (d) tell each applicant, in writing:

 (i) the supply of the 900 upper major population product; and

 (ii) the supply of the 900 upper regional product; and

 (e) give each applicant a copy of the varied updated eligibility nomination form.

Note: For the 900 upper products, supply depends upon whether one or more set-aside applicants have elected to take up set-aside lots.

 (10) The varied updated eligibility nomination form must include a requirement for, and a guide to:

 (a) specifying the number of lots of each product desired by an applicant as the provisional start demands of the applicant before the pre-bidding phase, at the starting price for the lots of the product; and

 (b) calculating and specifying the maximum eligibility points of an applicant based on those provisional start demands; and

 (11) If the ACMA varies the extended eligibility deadline under subsection (6), then in this instrument:

 (a) a reference to the extended eligibility deadline is taken to be a reference to the varied extended eligibility deadline; and

 (b) a reference to the updated eligibility nomination form is taken to be a reference to the varied updated eligibility nomination form; and

 (c) a reference to a completed updated eligibility nomination form is taken to be a reference to a completed varied updated eligibility nomination form.

Division 6 Withdrawal of applications

52  Withdrawal of application

 (1) Subject to subsection (6), an applicant may withdraw its application before the eligibility deadline or extended eligibility deadline (if there is one), by giving the ACMA notice in writing.

 (2) If an applicant who withdraws its application under subsection (1), or who is taken to have withdrawn its application under another provision of this instrument, has made:

 (a) an eligibility payment under subsection 31(7), 38(7) or 48(4), and in accordance with and for the purposes of section 42; or

 (b) an additional eligibility payment under subsection 46(4), in accordance with and for the purposes of section 42;

  the ACMA must refund the eligibility payment or additional eligibility payment within the period specified in subsection 73(2).

 (3) Subsection (2) is subject to sections 85 and 87.

 (4) An applicant may not withdraw its application after the later of the eligibility deadline or extended eligibility deadline (if there is one).

 (5) Subject to subsection 48(1), an applicant must not be re-admitted to the auction after withdrawing, or being taken to have withdrawn, its application.

 (6) A person who is a set-aside participant may only withdraw its application in accordance with subsection (1) if:

 (a) the ACMA varies the starting price for lots of a product, in accordance with subsection 43(1); and

 (b) the set-aside participant gives notice in writing of the withdrawal in the period:

 (i) commencing at the time the ACMA notified the set-aside participant under section 44; and

 (ii) ending immediately before the new application deadline.

 (7) If a person who is a set-aside participant withdraws its application in accordance with subsections (1) and (6):

 (a) for the purposes of this instrument, the person ceases to be a set-aside participant from the time the person withdraws its application; and

 (b) if, as a result of the withdrawal, there is no applicant (other than an applicant who has withdrawn, or is taken to have withdrawn, its application) that has stated, in its application, that it elects to take up a set-aside lot:

 (i) subsection 62(1) ceases to apply in relation to the auction; and

 (ii) subsection 62(2) applies in relation to the auction; and

 (iii) there are no set-aside participants.

Note: As a result of the operation of this section, the supply of the 900 upper products may have changed, or may stay the same: see clause 2 of Schedule 2.

Division 7 Registration of bidders

53  Register of bidders

 (1) The ACMA must maintain a register of bidders in the auction in electronic form.

 (2) For each bidder, the register must contain the following:

 (a) the bidder’s name;

 (b) the bidder’s postal address;

 (c) the bidder’s email address;

 (d) the bidder’s telephone number;

 (e) the name, position, postal address, email address and telephone number of a contact person for the bidder;

 (f) the bidder’s provisional start demands for the lots of each product;

 (g) whether the bidder is a set-aside participant;

 (h) if the bidder is a set-aside participant – whether the bidder is entitled to bid in the primary stage and the secondary stage;

 (i) the bidder’s maximum eligibility points;

 (j) the bidder’s provisional minimum spectrum requirements (if any) for the lots of each product, other than the following:

 (i) a 900 lower product;

 (ii) if the bidder is a set-aside participant – a 900 upper product;

 (k) the bidder’s allocation limits applicable to each of the following:

 (i) the major population products;

 (ii) the regional products;

 (l) the bidder’s ABN, ACN or ARBN;

 (m) the names of the bidder’s associates and the nature of each associate’s association with the bidder.

 (3) The ACMA may also include other information in the register, if the ACMA considers the information necessary or convenient for the auction.

 (4) If:

 (a) a bidder tells the ACMA of a change in the bidder’s name or contact information, including a change of information for the bidder’s contact person; or

 (b) the ACMA becomes aware that any of the information on the register is not correct;

  the ACMA must change or correct the register as soon as practicable.

 (5) The ACMA must not change the matter in paragraph (2)(g).

Note: Once a set-aside applicant has stated, in its application form, that it elects to take up a set-aside lot of both of the 900 upper major population product and the 900 upper regional product, the applicant becomes a set-aside participant, and that status cannot be changed unless provided for by this instrument. The instrument does not provide for that status to be changed for a person at any time after the ACMA registers the person as a bidder under section 54.

54  Registration process

 (1) The ACMA must register a person as a bidder in the auction if and only if:

 (a) the later of the eligibility deadline or extended eligibility deadline (if there is one) has passed; and

 (b) the person has:

 (i) made a valid application under section 31, section 38 or section 48, including replacing an application form under section 45, or updating, adding to or replacing a document in an application under another provision of this instrument; and

 (ii) if the person is not a set-aside participant – made an eligibility payment (including an additional eligibility payment) or given the ACMA a deed of financial security (or both) under, or for the purposes of, section 42; and

 (c) the person has not withdrawn, and is not taken to have withdrawn, its application; and

 (d) if a deed of financial security has been given, and the person is not a set-aside participant – the ACMA is satisfied that the person who executed the deed is a person mentioned in subsection 42(9).

Note 1: For subparagraph (b)(ii), if a set-aside participant does not make an eligibility payment or give the ACMA a deed of financial security, the set-aside participant will not be entitled to bid during the primary stage and the secondary stage. See paragraphs 31(8)(a), 38(9)(a) and 48(5)(a).

Note 2: For paragraph (d), if, in relation to a set-aside participant, the ACMA is not satisfied that the person who executed a deed of financial security is a person mentioned in subsection 42(9), the set-aside participant will not be entitled to bid during the primary stage and the secondary stage. See subsection 42(11).

 (2) After the later of the eligibility deadline or extended eligibility deadline (if there is one), the ACMA must tell a bidder in writing that the bidder has been registered and may participate in the auction, and give the bidder the following:

 (a) a copy of the information recorded on the register for the bidder;

 (b) the ACMA’s email address and telephone number available for use by bidders;

 (c) notice as to whether the bidder is a set-aside participant;

 (d) information about accessing the auction system;

 (e) information about how to make an entry and a bid by alternative methods if the bidder is unable to make an entry or a bid using the auction system.

55  Bidders to notify the ACMA if register incorrect

 (1) If a bidder knows that any of the information about the bidder or the bidder’s associates on the register is incorrect, the bidder must immediately give the ACMA the correct information.

 (2) Subject to subsection (5), if the auction manager is satisfied that information on the register is incorrect, the auction manager may correct the register.

 (3) Examples of information that is incorrect for the purposes of subsection (2) are information that contains a clerical error, information that contains an obvious mistake, or information that contains an omission.

 (4) Subsection (3) does not limit subsection (2).

 (5) The auction manager must not change the matter in paragraph 53(2)(g).

Note: Once a set-aside applicant has stated, in its application form, that it elects to take up a set-aside lot of both of the 900 upper major population product and the 900 upper regional product, the applicant becomes a set-aside participant, and that status cannot be changed unless provided for by this instrument. The instrument does not provide for that status to be changed for a person at any time after the ACMA registers the person as a bidder under section 54.

Division 8 Preparation for bidding and scheduling rounds of the auction

56  Preparation for bidding

  The ACMA must give each bidder an opportunity to trial the auction system before the auction commences.

57  Security of the auction

 (1) A bidder must ensure that any information and items provided to the bidder for the purpose of accessing the auction system are kept secure, and not misused, during the auction period.

 (2) A bidder must notify the ACMA immediately if any information or item provided to the bidder for the purpose of accessing the auction system is lost or stolen during the auction period.

58  Auction rounds

 (1) The rounds of the auction for the primary stage, secondary stage and assignment stage are to be scheduled in accordance with this instrument.

Note: The assignment stage also deals with the allocation of the downshift metropolitan lot and the downshift regional lot.

 (2) The first clock round of the primary stage starts on the date and time for that clock round set by the auction manager under paragraph 59(1)(a).

59  Pre-bidding phase and first clock round

 (1) After the later of the eligibility deadline or extended eligibility deadline (if there is one), the auction manager must:

 (a) set the start date and start time of the first clock round of the primary stage; and

 (b) set a period of at least 3 hours that falls within the 48 hours before the start date and start time of the first clock round of the primary stage as the pre-bidding phase.

 (2) At least 10 working days before the start of the pre-bidding phase, the auction manager must notify each bidder of:

 (a) the start date and start time, and duration, of the pre-bidding phase; and

 (b) the start date and start time of the first clock round of the primary stage.

Part 5—Auction procedures, and allocation of set-aside lots

Division 1 Procedures to be applied for auction and allocation of set-aside lots

60  Auction stages

 (1) The auction consists of a primary stage, a secondary stage (if required) and an assignment stage.

 (2) The primary stage is made up of:

 (a) the pre-bidding phase, for bidders to change or confirm:

 (i) their provisional start demand for the lots of each product; and

 (ii) for each product, other than:

  their provisional minimum spectrum requirement for lots of the product; and

 (b) one or more clock rounds for the making of bids on lots of a product, and the results of that clock round; and

 (c) the determination of the final posted demands, as a result of the final clock round, for the lots of each product allocated to a primary winner, and of the associated primary price, after all clock rounds are completed.

 (3) The secondary stage, if required, is made up of:

 (a) one or more rounds for the making of bids on any residual lot of a product that is available in the secondary stage of the auction, and the results of that round; and

 (b) the determination of the winning final high bids for any residual lot of a product allocated to a secondary winner, and of the associated secondary price, after all rounds for the secondary stage are completed.

 (4) The assignment stage is made up of:

 (a) one or more assignment rounds for the making of assignment bids; and

 (b) the determination of the winning assignment bids (after an assignment round has ended), and of the total assignment price for each assignment winner after all assignment rounds are completed; and

 (c) if subclause 10(1) of Schedule 4 applies – the allocation of the downshift metropolitan lot; and

 (d) if subclause 10(2) of Schedule 4 applies – the allocation of the downshift regional lot.

61  Procedures if only one bidder

 (1) If there is only one bidder in the auction, the procedures to be applied for allocating lots of a product and assigning frequency ranges are as follows:

 (a) in the primary stage – there will be a pre-bidding phase, in which the bidder may enter start demands, and one clock round in which the bidder may make a bid for the lots of each product;

 (b) the assignment stage will be conducted as soon as possible after the primary stage to enable the bidder to indicate the frequency ranges the bidder wishes to have assigned.

Note 1: In this situation, the assignment prices will be zero: see subclause 8(2) of Schedule 4.

Note 2: The assignment stage also deals with the allocation of the downshift metropolitan lot and the downshift regional lot.

 (2) The ACMA must notify the bidder as soon as reasonably practicable after the later of the eligibility deadline or extended eligibility deadline (if there is one) that it is the only bidder, and that the procedures in this section apply.

62  Procedures in relation to set-aside lots

 (1) If this subsection applies in relation to the auction, Schedule 1 takes effect immediately before the pre-bidding phase of the primary stage.

 (2) If this subsection applies in relation to the auction, Schedule 1 does not have any effect.

63  Rounds of the auction

 (1) The clock rounds for the primary stage are to be conducted in accordance with the rules in Schedule 2.

 (2) The rounds for the secondary stage, if required, are to be conducted in accordance with the rules in Schedule 3.

 (3) In accordance with the rules in Schedule 4:

 (a) the assignment rounds for the assignment stage are to be conducted; and

 (b) the downshift metropolitan lot may be allocated; and

 (c) the downshift regional lot may be allocated.

64  Auction manager’s discretion to accept entries and bids

 (1) The auction manager may permit a bidder to make:

 (a) an entry in the pre-bidding phase; or

 (b) a bid for a clock round in the primary stage, a round in the secondary stage, or in an assignment round;

  by a method other than the auction system if the auction manager is satisfied that the bidder is not able to make an entry or a bid using the auction system.

 (2) The auction manager may permit a bidder to make:

 (a) an entry in the pre-bidding phase; or

 (b) a bid for a clock round in the primary stage, a round in the secondary stage, or in an assignment round;

  after the end time of the pre-bidding phase or relevant round if the auction manager is satisfied that the bidder could not make the entry during the pre-bidding phase or the bid during the relevant round because of technical or communication problems.

 (3) An entry or bid permitted to be made by the auction manager under subsection (2) is taken to have been made during the pre-bidding phase or relevant round.

 (4) The auction manager must not permit a bidder to make:

 (a) an entry under paragraph (2)(a) after information about the outcome of the pre-bidding phase has been provided to bidders; or

 (b) a bid under paragraph (2)(b) after information about the outcome of the relevant round has been provided to bidders.

Note 1: See subclause 3(9) of Schedule 2 for details of the information about the outcome of the pre-bidding phase that will be provided to bidders.

Note 2: See clause 8 of Schedule 2, clause 6 of Schedule 3, and clauses 7 and 8 of Schedule 4, for details of the information about the outcome of a round of the auction that will be provided to bidders.

65  Action that auction manager may take in exceptional circumstances

 (1) If the auction manager is satisfied that the auction is affected by exceptional circumstances, the auction manager may:

 (a) make corrections to one or more of the following:

 (i) entries made in the pre-bidding phase;

 (ii) the results of the round of the auction that last ended;

 (iii) information received by a bidder after that round; or

 (b) stop the pre-bidding phase, and restart the pre-bidding phase; or

 (c) stop the current round, and restart the round; or

 (d) cancel the results of one or more rounds, and restart the auction from the point before those rounds; or

 (e) cancel the results of:

 (i) all the clock rounds in the primary stage; or

 (ii) all the rounds in the secondary stage; or

 (iii) all the assignment rounds;

  and restart the auction from the first round of the relevant stage; or

 (f) suspend the auction.

 (2) In this section, exceptional circumstances include the following:

 (a) a significant technical difficulty with the auction system;

 (b) a breach of the confidentiality obligation in section 19.

 (3) Subsection (2) does not limit what might constitute exceptional circumstances.

 (4) This section applies to the following:

 (a) the pre-bidding phase;

 (b) the clock rounds in the primary stage;

 (c) the rounds in the secondary stage;

 (d) the assignment rounds in the assignment stage.

Division 2 Affiliations during the auction

66  Affiliation between bidders during auction period not permitted

  A bidder must not be affiliated with another bidder during the auction period.

Note: If the ACMA is satisfied that a breach of this provision has occurred, the ACMA may take action under section 85. Section 85 enables the ACMA to retain an eligibility payment if it is satisfied certain breaches of this instrument have occurred.

67  Requirement to report affiliation

  If, at any time during the auction period, a bidder believes that it may be an affiliate of another bidder, the bidder must immediately tell the ACMA in writing the identity of the other bidder and give details of the affiliation.

68  Auction continues despite possible affiliation

  If the ACMA becomes aware during the auction period that two or more bidders may be affiliated, the auction is to continue and the bidders may continue to participate in the auction.

69  Consideration of affiliation

 (1) If the ACMA has reason to believe that two or more bidders are affiliated during the auction period, the ACMA must, in writing, notify the bidders and tell them the basis on which the ACMA believes that the affiliation exists.

 (2) If a bidder gave the ACMA information under section 67 and the ACMA does not consider that the affiliation exists, the ACMA must tell the bidder in writing that the ACMA does not consider the affiliation to exist.

Division 3 Statement by primary winners, secondary winners and set-aside participants about affiliations

70  Primary winners, secondary winners and set-aside participants to make statement about affiliations

 (1) If subsection 69(1) applies before the end of the secondary stage (if there is one) or primary stage (if there is no secondary stage), then, as soon as practicable after the end of the relevant stage and before the start of the assignment stage, the ACMA must:

 (a) give each primary winner and each secondary winner details about the identity of:

 (i) all other persons who are primary winners and secondary winners; and

 (ii) each set-aside participant who is not also a primary winner or secondary winner; and

 (b) give each set-aside participant who is not also a primary winner or secondary winner details about the identity of:

 (i) all primary winners and secondary winners; and

 (ii) each other set-aside participant who is not also a primary winner or secondary winner; and

 (c) ask each primary winner and secondary winner to make a statement whether the winner is an affiliate of another person who is a primary winner or secondary winner, or a set-aside participant who is not also a primary winner or secondary winner, and, if so, identifying the other winner or set-aside participant and giving details of the affiliation; and

 (d) ask each set-aside participant who is not also a primary winner or secondary winner to make a statement whether the set-aside participant is an affiliate of a primary winner or secondary winner, or another set-aside participant who is not also a primary winner or secondary winner, and, if so, identifying the primary winner, secondary winner or other set-aside participant and giving details of the affiliation.

 (2) The ACMA must state a deadline, at least 10 working days after the date of the request, before which the statement must be received by the ACMA.

 (3) A primary winner or secondary winner must give the ACMA the statement by the deadline.

 (4) A set-aside participant who is not also a primary winner or secondary winner must give the ACMA the statement by the deadline.

Note 1: Giving false or misleading information is a serious offence under section 137.1 of the Criminal Code.

Note 2: Section 136.1 of the Criminal Code also makes it an offence to make a false or misleading statement in connection with an application for a licence.

71  Notification of affiliation

 (1) If the ACMA is satisfied that 2 or more primary winners or secondary winners were affiliated before the end of the primary stage (if there is no secondary stage) or secondary stage (if there is one), the ACMA must, in writing, notify those winners and tell them the basis on which the ACMA is satisfied the winners are affiliated.

 (2) If the ACMA is satisfied that 2 or more set-aside participants who are not also primary winners or secondary winners were affiliated before the end of the primary stage (if there is no secondary stage) or secondary stage (if there is one), the ACMA must, in writing, notify those set-aside participants and tell them the basis on which the ACMA is satisfied the set-aside participants are affiliated.

 (3) If the ACMA is satisfied that one or more primary winners or secondary winners were affiliated with one or more set-aside participants who are not also primary winners or secondary winners before the end of the primary stage (if there is no secondary stage) or secondary stage (if there is one), the ACMA must, in writing, notify each person so affiliated and tell them the basis on which the ACMA is satisfied they are affiliated.

72  Consequence of affiliation

 (1) If the ACMA notifies 2 or more persons under section 71 (affiliated persons), the ACMA must not allocate spectrum licences to the affiliated persons that would exceed the allocation limits.

 (2) If the allocation of spectrum licences to the affiliated persons for either, or both:

 (a) the sum of:

 (i) all the lots of each major population product (when expressed in MHz) those persons were allocated in the primary stage or secondary stage; and

 (ii) for each affiliated person that is a set-aside participant – 1 set-aside lot of the 900 upper major population product (when expressed in MHz); or

 (b) the sum of:

 (i) all the lots of each regional product (when expressed in MHz) those persons were allocated in the primary stage or secondary stage; and

 (ii) for each affiliated person that is a set-aside participant – 1 set-aside lot of the 900 upper regional product (when expressed in MHz);

  would exceed the allocation limits, the affiliated persons may give a direction in writing to the ACMA specifying how lots are to be allocated between those persons up to the allocation limits.

 (3) The direction must be given:

 (a) jointly by the affiliated persons; and

 (b) to the ACMA within 5 working days after those persons received notification under section 71.

 (4) If an affiliated person is a set-aside participant, the direction must not affect the allocation of any set-aside lots to the participant.

 (5) If the ACMA receives a direction that complies with subsections (2) to (4), lots are allocated to the affiliated persons in accordance with the direction.

 (6) If the ACMA does not receive a direction that complies with subsections (2) to (4), the ACMA may, for any part of the spectrum where the lots of one or more products allocated to the affiliated persons exceed the allocation limits, at its discretion allocate lots of one or more of those products to each person up to those allocation limits, subject to subsection (7).

 (7) If an affiliated person is a set-aside participant, the ACMA’s decision under subsection (6) must not affect the allocation of any set-aside lots to the participant.

 (8) Spectrum in excess of the allocation limits that is not allocated under subsection (5) or (6) is taken to be unallocated.

 (9) A winning bidder must pay the full balance of the winning price:

 (a) calculated in relation to all lots for which the winning bidder was the primary winner or secondary winner, despite not being allocated all those lots as a result of this section; and

 (b) if the winning bidder is a set-aside participant – calculated in relation to each set-aside lot allocated to the participant; and

 (c) for all frequency ranges assigned to:

 (i) any lots which were allocated to the winning bidder as a result of this section; and

 (ii) if the winning bidder is a set-aside participant – each set-aside lot allocated under Schedule 1.

Note: See section 7 of the spectrum licence limits direction.

Part 6—Procedures after auction

Division 1 Notices and refunds to withdrawn applicants and unsuccessful bidders

73  Notice and refunds to withdrawn applicants

 (1) As soon as practicable after the end of the auction period, the ACMA must notify each applicant that withdrew, or was taken to have withdrawn, its application that the applicant’s confidentiality obligation under section 19 has ended.

 (2) If an applicant that withdrew, or was taken to have withdrawn, its application made an eligibility payment, the ACMA must refund the eligibility payment no later than 6 months after giving the notice under subsection (1).

 (3) Subsection (2) does not apply if the ACMA has made a decision to retain the eligibility payment under section 85.

Note: Section 85 enables the ACMA to retain an eligibility payment if it is satisfied certain breaches of this instrument have occurred.

74  Notice and refunds to unsuccessful bidders

 (1) As soon as practicable after the end of the auction period, the ACMA must notify each bidder that is not a winning bidder (unsuccessful bidder) that:

 (a) the bidder was unsuccessful in the auction; and

 (b) the bidder’s confidentiality obligation under section 19 will end when the ACMA announces or publishes the information mentioned in subsection 79(1).

 (2) If an unsuccessful bidder made an eligibility payment, the ACMA must refund the eligibility payment no later than 6 months after giving the notice under subsection (1).

 (3) Subsection (2) does not apply if the ACMA has made a decision to retain the eligibility payment under section 85.

Note: Section 85 enables the ACMA to retain an eligibility payment if it is satisfied certain breaches of this instrument have occurred.

Division 2 Winning prices, payment and issue of spectrum licences

Note: This Division is made under section 294 of the Act, and is disallowable under section 42 of the Legislation Act 2003.

75  Winning price and balance of winning price

 (1) For a winning bidder, the winning price is the total of:

 (a) the primary price for all lots allocated to the bidder in the primary stage; and

 (b) the secondary price for all lots allocated to the bidder in the secondary stage (if there is one); and

 (c) for a bidder that is a set-aside participant – the set-aside price for each set-aside lot allocated to the bidder; and

 (d) the total assignment price (if any) for all frequency ranges assigned to those lots in the assignment stage.

Note: The winning price is the total spectrum access charge fixed under section 294 of the Act, payable by a licensee for the issuing of spectrum licences to the licensee.

 (2) For a winning bidder, the balance of the winning price is the winning price minus any eligibility payment made by the bidder under, or for the purposes of, section 42.

76  Results of the auction

 (1) After the winning bidders and winning prices are determined, the auction manager must, by notice in writing, tell each winning bidder:

 (a) the number of lots of each product allocated to the winning bidder (including any set-aside lots allocated under Schedule 1); and

 (b) the frequency ranges assigned to the lots allocated; and

 (c) whether the winning bidder was allocated the downshift metropolitan lot or the downshift regional lot under Schedule 4; and

 (d) the winning price to be paid by the winning bidder.

Note 1: The allocation of spectrum licences is complete when frequency ranges are assigned to lots of a product (allocated to a bidder in the primary stage or secondary stage, or allocated to a set-aside participant under Schedule 1) at the end of the assignment stage.

Note 2: However, spectrum in a spectrum licence may be taken to be unallocated in some circumstances: see sections 85 and 86, and clause 5 of Schedule 5.

 (2) After the winning bidders and winning prices are determined, the auction manager must tell all bidders in writing:

 (a) the names of all winning bidders; and

 (b) the frequency ranges in relation to the lots allocated under this instrument (including any set-aside lots allocated under Schedule 1); and

 (c) the winning price paid, or to be paid, by each winning bidder; and

 (d) the posted price for the lots of each product in the final clock round.

 (3) Unless all bidders agree in writing, the ACMA must not provide to all bidders any further information regarding the results of the auction other than that mentioned in subsection (2), and in subclause 18(2) of Schedule 2, unless required by law.

Note: For information about the auction that is announced or published after the end of the auction period, see subsection 79(1).

 (4) In this section, final clock round and posted price each has the meaning given by subclause 2(1) of Schedule 2.

77  Sufficient eligibility payment – issue of spectrum licence without further payment

 (1) If the balance of the winning price for a winning bidder is an amount less than zero:

 (a) the ACMA must refund the eligibility payment in excess of the winning price no later than 6 months after giving the notice under subsection 76(1); and

 (b) the bidder is entitled to be issued:

 (i) a spectrum licence for each part of the spectrum assigned to the lots, other than the downshift metropolitan lot and the downshift regional lot, allocated to the bidder; and

 (ii) if the bidder was allocated the downshift metropolitan lot – a spectrum licence for the downshift metropolitan lot; and

 (iii) if the bidder was allocated the downshift regional lot – a spectrum licence for the downshift regional lot;

  without further payment.

 (2) If the balance of the winning price for a winning bidder is zero, the bidder is entitled to be issued:

 (a) a spectrum licence for each part of the spectrum assigned to the lots, other than the downshift metropolitan lot and the downshift regional lot, allocated to the bidder; and

 (b) if the bidder was allocated the downshift metropolitan lot – a spectrum licence for the downshift metropolitan lot; and

 (c) if the bidder was allocated the downshift regional lot – a spectrum licence for the downshift regional lot;

  without further payment.

Note: In accordance with the marketing plan, a spectrum licence for the downshift metropolitan lot, and a spectrum licence for the downshift regional lot, will be issued to the relevant winning bidder as a separate spectrum licence to any other spectrum licence issued to that winning bidder as a result of this instrument.

 (3) Subsections (1) and (2) do not apply if the ACMA has made a decision to retain the eligibility payment under section 85.

Note: Section 85 enables the ACMA to retain an eligibility payment if it is satisfied certain breaches of this instrument have occurred.

78  Payment of balance of winning price

  If the balance of the winning price for a winning bidder is an amount greater than zero, it must be paid by the winning bidder to the ACMA in accordance with Schedule 5.

79  Publication of auction results

 (1) The ACMA must announce or publish the following information about the auction after the end of the auction period:

 (a) the names of the winning bidders;

 (b) the spectrum allocated to each winning bidder;

 (c) the winning price paid, or to be paid, by each winning bidder;

 (d) the posted price of the lots of each product in the final clock round.

 (2) Before the ACMA announces or publishes the information in subsection (1), the auction manager must notify each winning bidder, in writing, that:

 (a) the ACMA will announce or publish the information; and

 (b) the winning bidder’s confidentiality obligation under section 19 will end when the ACMA announces or publishes the information.

 (3) Unless all bidders agree in writing, the ACMA will not announce or publish any further information regarding the results of the auction, unless required by law.

 (4) In this section, final clock round and posted price each have the meaning given by subclause 2(1) of Schedule 2.

Part 7—Miscellaneous

80  Unallocated spectrum

  Parts of the spectrum that are available in the auction but not allocated under Schedule 1, or in the primary stage or secondary stage (if any), or taken to be unallocated under section 72 or 86, or under clause 11 of Schedule 4, or not allocated as a result of clause 5 of Schedule 5, may be later made available for allocation by a procedure to be determined by the ACMA.

Note: The ACMA may make determinations under section 60 of the Act about allocations by auctions or by other procedures.

81  Applicants and bidders must not misuse auction system

 (1) An applicant or bidder must only access and use the auction system in accordance with the information about access and use provided under section 32, section 39, section 49 or paragraph 54(2)(d) or (e).

 (2) An applicant or bidder must not attempt to interfere with, disrupt or damage the auction system.

 (3) An applicant or bidder must not use or attempt to use the auction system to breach a law of the Commonwealth.

82  The ACMA may obtain information from applicants and bidders

 (1) If the ACMA has reason to believe that an applicant or bidder has information or documents that are relevant to the performance of any of the ACMA’s functions or exercise of its powers under this instrument, the ACMA may, by written notice, require the applicant or bidder:

 (a) to give to the ACMA, within the period and in the manner and form specified in the notice, any such information; or

 (b) to produce to the ACMA, within the period and in the manner and form specified in the notice, any such documents.

Note: If a requirement in a notice given under this subsection is breached, the ACMA may take action under section 85.

 (2) The ACMA may vary a notice given under subsection (1).

83  Use of information and documents by the ACMA

 (1) The ACMA may use information or documents it obtains in the performance of its functions or exercise of its powers under this instrument:

 (a) for the purposes of this instrument, including disclosing or publishing information or documents as provided for in this instrument; or

 (b) in relation to a spectrum licence to be issued, or issued, as a result of the auction.

 (2) The ACMA may retain possession of a document or other item given to the ACMA for the purposes of this instrument for as long as necessary for the performance of the ACMA’s functions and exercise of its powers under this instrument or the Act.

 (3) The ACMA may disclose information or documents in accordance with Part 7A of the ACMA Act or as otherwise authorised by law.

84  The ACMA to provide information to ACCC on request

 (1) The ACCC may request information from the ACMA in relation to the auction, or in relation to an applicant or bidder.

 (2) The ACMA must provide the requested information to the ACCC if the ACMA has the information.

 (3) Without limiting subsection (1), information that the ACCC may request includes the following:

 (a) completed application forms;

 (b) completed updated application forms;

 (c) completed eligibility nomination forms;

 (d) completed updated eligibility nomination forms;

 (e) deeds of confidentiality;

 (f) information about an applicant’s associates and affiliations (including statutory declarations and statements made under this instrument);

 (g) information about any breaches of confidentiality obligations;

 (h) information about bidding during the auction;

 (i) information about whether a set-aside applicant is a set-aside participant;

 (j) information about the outcomes of the procedures in Part 6.

85  Retention of eligibility payment or enforcement of deed of financial security for breach of auction procedures

 (1) The ACMA, on behalf of the Commonwealth, may retain an eligibility payment made by an applicant or bidder, or enforce a deed of financial security given by an applicant or bidder, if:

 (a) the ACMA is satisfied that:

 (i) the applicant or bidder, or a related person of the applicant or bidder, or a contractor of the applicant or bidder, breached a provision of this instrument; and

 (ii) the breach affected, or may have affected, the outcome of the auction; or

 (b) the ACMA is satisfied that the applicant or bidder, or a related person of the applicant or bidder, or a contractor of the applicant or bidder, breached the confidentiality obligation under section 19 before the confidentiality obligation came to an end; or

 (c) the ACMA is satisfied that the bidder breached section 66; or

 (d) the bidder is a primary winner, secondary winner or set-aside participant who failed to give the statement, if required, under section 70; or

 (e) the bidder is a winning bidder who failed to pay the balance of the winning price in accordance with Schedule 5; or

 (f) the applicant or bidder failed to comply with a requirement in a notice given under subsection 82(1).

Note: A set-aside participant is a winning bidder.

 (2) The ACMA must, in writing, notify the applicant or bidder of a decision under subsection (1), and the nature of the breach of failure, before the later of:

 (a) 6 months after the end of the auction period; or

 (b) 6 months after the day on which the breach or failure mentioned in subsection (1) occurred, or first occurred.

 (3) An eligibility payment retained under this section, or an amount obtained through enforcement of a deed of financial security under this section, is forfeited to the Commonwealth unless the Federal Court orders the return of the amount under section 87.

86  Effect of retention on winning bidders

  If the ACMA makes a decision under subsection 85(1) in relation to a winning bidder:

 (a) despite section 77 and clause 4 of Schedule 5, the ACMA must not issue a spectrum licence to the bidder; and

 (b) the following parts of the spectrum are taken to be unallocated:

 (i) the spectrum assigned to the lots allocated to the bidder at auction; and

 (ii) if the downshift metropolitan lot was allocated to the bidder– both the following parts of the spectrum in the downshift metropolitan area:

 (A) 824 MHz to 825 MHz;

 (B) 869 MHz to 870 MHz; and

 (iii) if the downshift regional lot was allocated to the bidder – both the following parts of the spectrum in the downshift regional area:

 (A) 824 MHz to 825 MHz;

 (B) 869 MHz to 870 MHz.

Note: A set-aside participant is a winning bidder.

87  Application to Federal Court for return of retained amount

 (1) An applicant or bidder who has been notified by the ACMA under subsection 85(2) may, within 1 year of receiving the notice, apply to the Federal Court for return of all or part of an eligibility payment or an amount obtained through enforcement of a deed of financial security (relevant amount).

 (2) On application, the Federal Court may:

 (a) if the Court is not satisfied that the breach identified in the notice was committed – order the return of all of the relevant amount; or

 (b) if the Court is satisfied that the breach identified in the notice was committed, but considers that it would be disproportionate for the Commonwealth to keep the relevant amount – order the return of part of the relevant amount.

 (3) This section does not enable the Federal Court to order that a spectrum licence be issued to an applicant or bidder.

 (4) This section does not remove any existing jurisdiction of a court.

88  No liability of the ACMA, etc

  None of the ACMA, the Commonwealth or the auction manager is liable to pay damages or costs arising from an act or omission of any person in relation to the auction procedures set out in this instrument.

89  Other rights not affected

  This instrument does not limit any other right of action or remedy which the ACMA or the Commonwealth has against a person.