Radiocommunications Amendment Act 2000

35 New sections 106-109C substituted
  • The principal Act is amended by repealing sections 106 to 109, and substituting the following sections:

    106 Definitions for sections 108-109C
    • (1) For the purposes of sections 108 to 109C,—

      arbitral tribunal has the same meaning as in the Arbitration Act 1996

      claimant means—

      • (a) the rightholder or holder of a radio licence claiming harmful interference in the protection area of the claimant's licence; or

      • (b) the owner of a radionavigation receiver or a safety receiver claiming that harmful interference with reception by that receiver would endanger the functioning of a radionavigation service or other safety service

      respondent means the person whose lawful transmission of radio waves is alleged to be causing harmful interference in the claimant's protection area.

      (2) Where a person holds a radio licence that does not specify an area as a protection area, that person may proceed as a claimant if there is harmful interference in the area that the person considers would be the protection area of the licence, and that area is the protection area for that radio licence until such time as the arbitral tribunal determines otherwise in accordance with section 109A(2).

      (3) Despite the lack of a radio licence or the lack of a protection area specified in that radio licence, where that radio licence is for a radionavigation or safety service, the owner of the radionavigation receiver or a safety receiver may proceed as a claimant if there is harmful interference with reception by that receiver that endangers the functioning of that radionavigation service or safety service.

    107 Sections 106-109C apply where transmissions not commenced
    • Where a radio licence or a spectrum licence has been granted and registered but lawful transmissions have not commenced, and a rightholder or holder of a radio licence believes that lawful transmissions made in accordance with that licence are very likely to cause harmful interference in the protection area of that licence, the provisions of sections 106 to 109C apply as though the lawful transmissions had commenced.

    108 Notice of harmful interference
    • (1) Where a respondent is lawfully transmitting radio waves under a registered spectrum licence or radio licence, and those transmissions cause or contribute to harmful interference in the protection area of another registered spectrum licence or radio licence, the claimant may serve on the respondent a notice concerning that interference.

      (2) Where both the claimant and the respondent are holders of radio licences and the provisions of subsections (3) to (7) and sections 109 to 109C do not apply, the matter may be referred to the Secretary by the claimant or the respondent, and the Secretary may take such action as the Secretary thinks fit.

      (3) Where the harmful interference which is the subject of the notice under subsection (1) endangers the functioning of the claimant's radionavigation service or other safety service, the claimant may also serve a copy of the notice on the Secretary, and the Secretary may, in his or her discretion, direct the claimant or the respondent, or both, to take action forthwith, including ceasing transmissions, until the matter is resolved in accordance with sections 108 to 109A and section 109C.

      (4) A notice given under subsection (1) must state—

      • (a) the nature of the harmful interference experienced; and

      • (b) the alleged cause of the harmful interference and the manner in which the respondent is believed to have caused or contributed to the harmful interference; and

      • (c) what action the claimant desires to be taken by the respondent to remedy the harmful interference; and

      • (d) that the respondent has 10 working days following the receipt of the notice within which to take 1 of the actions referred to in subsection (5) and that, if the action the claimant wishes to be taken to remedy the harmful interference is not taken within 10 working days following the receipt of the notice, the matter may be referred to arbitration under this section.

      (5) Every respondent who receives a notice properly given under subsection (1) must, within 10 working days of receiving that notice,—

      • (a) take the action to remedy the harmful interference specified in the notice; or

      • (b) notify the claimant that in the respondent's opinion the respondent's transmissions have not caused or contributed to, or are not causing or contributing to, harmful interference to the claimant or that the action specified in the notice which the claimant wishes to be taken to remedy the harmful interference is not justified; or

      • (c) agree with the claimant on a method of reaching an agreement to deal with the harmful interference; or

      • (d) agree with the claimant to refer the matter to arbitration to be determined in accordance with the Arbitration Act 1996.

      (6) If, within 10 working days of a notice being properly given under subsection (1),—

      • (a) the action specified in the notice has not been taken; and

      • (b) the claimant continues to believe that the respondent's transmissions have caused or contributed to, or are causing or contributing to, harmful interference in the protection area of the claimant, and that the action which is specified in the notice is justified; and

      • (c) the claimant and the respondent have not agreed on a method of reaching an agreement to deal with the harmful interference or to refer the matter to arbitration,—

      the claimant may, following the expiry of that 10-working day period, by notice in the prescribed form to the Secretary, request the Secretary to refer the matter to arbitration under section 109.

      (7) Where the claimant and the respondent agree on a method of reaching an agreement to deal with the harmful interference under subsection (5)(c), but no agreement is reached within 20 working days of a notice properly given under subsection (1), the claimant may, following the expiry of that 20-working day period, by notice in the prescribed form to the Secretary, request the Secretary to refer the matter to arbitration under section 109.

    109 Reference to arbitration by Secretary
    • (1) Where the Secretary receives a request under section 108(6) or (7), and the Secretary is satisfied that—

      • (a) the alleged harmful interference is being caused in the protection area of a registered spectrum licence or radio licence; and

      • (b) the transmissions allegedly causing or contributing to the harmful interference are being lawfully made under a registered spectrum licence or radio licence; and

      • (c) there is prima facie evidence of harmful interference and that the harmful interference is being caused or contributed to by the respondent; and

      • (d) a notice was properly given under section 108(1) concerning that harmful interference; and

      • (e) the time limits specified in section 108 have expired; and

      • (f) the respondent has not taken the action specified in that notice,—

      the Secretary may refer the matter to arbitration and, except as provided in sections 109A and 109C, the provisions of the Arbitration Act 1996 apply as though the claimant and the respondent had agreed to refer the matter to arbitration.

      (2) The reference by the Secretary may specify the matters that would otherwise be included in an arbitration agreement, and that reference is an arbitration agreement for the purposes of the Arbitration Act 1996.

    109A Matters relevant to arbitration
    • (1) Clause 28(4) of the First Schedule of the Arbitration Act 1996 does not apply to matters referred to arbitration under section 108(5)(d) or section 109 of this Act; instead, the arbitral tribunal's decision must seek to balance the reasonable expectations, rights, and duties of the claimant and the respondent or other persons, without compromising public safety, and having regard to—

      • (a) the costs and effects of possible alternative solutions; and

      • (b) the technical compatibility between the claimant's receiver and the respondent's transmitter as determined by—

        • (i) the nature and characteristics of the rights described in the claimant's licence and the respondent's licence; and

        • (ii) the International Radio Regulations; and

        • (iii) the ITU-R reports and recommendations; and

        • (iv) Annex 10 to the Convention on International Civil Aviation; and

        • (v) the International Convention for the Safety of Life at Sea; and

        • (vi) any relevant reference standards issued by the Secretary; and

      • (c) which of the spectrum licences held by the parties to the dispute was registered first; and

      • (d) the desirability of minimising disruption to existing services; and

      • (e) the terms of the spectrum licences; and

      • (f) any other matters prescribed by regulations made under this Act or that the arbitral tribunal considers relevant.

      (2) Unless a person proceeds as a claimant in accordance with section 106(3), where the claimant is the holder of a radio licence that does not specify an area as a protection area, the arbitral tribunal must determine, from the technical details on the licence, whether the area considered by the claimant as the protection area for that licence is the protection area.

    109B Offence to transmit in breach of Secretary's direction
    • Every person who contravenes a direction given by the Secretary under section 108(3) commits an offence against this Act.

    109C Powers when deciding disputes
    • (1) In addition to the powers given to the arbitral tribunal by section 12 of the Arbitration Act 1996, the arbitral tribunal has the power to determine the cause of the harmful interference and has the power to direct the parties to the dispute or the Secretary to take action to reduce or eliminate harmful interference.

      (2) Where the arbitral tribunal directs that a spectrum licence or radio licence be modified or amended, then, despite any provision to the contrary in this Act or any spectrum licence, the manager or rightholder in the case of a spectrum licence, or the Secretary in the case of a radio licence, must modify or amend the licence as directed by the arbitral tribunal.