5G regulation and law in Australia

5G coverage is now at least partially available in the capital cities of each state and territory and many major regional centres. A broad range of providers offer 5G mobile plans, with some also offering 5G broadband plans for home internet. 5G saturation continues to grow, with over 85% of the population able to access 5G mobile networks.

Models for recuperating investments made in 5G networks differ between carriers. Some carriers offer 5G connectivity on their flagship plans for no added cost, while others require customers to subscribe to more expensive plans to access 5G networks with uncapped speeds.

5G projects have launched for a range of specific industrial use cases, particularly in the healthcare, mining, transport, manufacturing, and utility sectors. While many projects in these sectors are in trial stages, certain sectors have already seen 5G utility for industrial purposes.

There is currently no policy or practice of reserving mobile frequencies for use by industrial companies or operators other than carriers participating in spectrum auctions.

The Australian Communications and Media Authority (ACMA) is the independent statutory body responsible for planning and managing spectrum.

Carriers obtain spectrum licences through spectrum auctions rather than public tenders. These auctions take a variety of different formats, depending on the characteristics of the spectrum on offer and the anticipated demand, ranging from ‘simple clock auctions’ to ‘enhanced simultaneous multi-round ascending auctions’. The results of the past spectrum auctions, as well as plans for future spectrum auctions, are publicly available via the ACMA website.

The ACMA is also responsible for reorganising and optimising use of spectrum. For example, starting in 2017, it undertook a process of reallocating the 3.6 GHz band, then used for fixed satellite services, for use by 5G mobile networks.

Criteria for awarding a spectrum licence is outlined in the relevant legislative instruments as well as directions from the Minister for Communications. This can differ depending on the spectrum to which the auction relates. There may be specific limits relating to the allocation of a particular spectrum, such as a limit to the spectrum band a bidder can acquire.

Application for an auction requires completing an application form, a Deed of Acknowledgement form, a Deed of Confidentiality form and paying an application fee to the ACMA. Additionally, there are requirements to complete an eligibility nomination form and pay an eligibility payment or give a deed of financial security or some combination of both to the ACMA. Parties may be required to declare their affiliation with other bidders.

Finally, there is an initial eligibility points scheme, which differs between auctions. Notably, there is typically no express requirement to be a carrier to participate.

Conditions of spectrum licences differ between licences. Generally, however, licences have a maximum expiry period of 20 years, and do not renew automatically.

Licences contain core conditions (imposed under s 66 of the Telecommunications Act), statutory conditions (imposed under sections 67 to 69A of the Telecommunications Act) and other conditions which may be imposed under section 71 of the Telecommunications Act. Core conditions include specifying the area of operation, the frequency band of operation, outside-the-area emission limits and outside-the-band emission limits. Statutory conditions include taxes and charges, third-party authorisation requirements, requirements to register transmitters which use the licensed spectrum, residency requirements, details concerning the tenure of a spectrum licence and circumstances under which licence sanctions (suspending and cancelling spectrum licences) will apply.

The price of the spectrum licence is determined through the auction process, depending on the format of the relevant auction. As an example, in the ACMA’s most recent spectrum auction, the ACMA raised a total of A$2,091,618,000 from two carriers following the sale of 16 lots of frequencies in the 850/900 MHz band, allowing licensees to run both 4G and 5G networks. This was equivalent to an average of A$1.21/MHz/pop.

The Australian Radiofrequency Spectrum Plan outlines allocated uses for different frequency bands within the Australian radiofrequency spectrum. It is a legal instrument that specifies the general purpose and use for each band and is publicly available on the Australian Federal Register of Legislation.

Potential future changes to the Spectrum Plan, including reallocating frequencies and conducting new spectrum auctions, are outlined in the ACMA’s ‘Five-year spectrum outlook 2022–27 and 2022–23 work programme’ and includes bands undergoing different phases of planning: monitoring, initial investigation and implementation. Announcements for future tenders or auctions are also publicly available on the ACMA website.

There are no rules that apply exclusively to 5G mobile networks, although general telecommunications legislation continues to apply to 5G mobile networks.

In our view, the most significant obstacle to the rollout of 5G mobile networks is under-servicing of regional and rural areas due to these areas’ low population density and the significant capital investment required to deploy 5G infrastructure. The lower expected returns on investments in 5G infrastructure in these areas means there is reduced commercial incentive to expand or develop existing service offerings.

We are not aware of any decisions that have been made regarding non-compliance with 5G obligations imposed by spectrum licences for use in 5G mobile networks.

There is limited regulation concerning the sharing of spectrum, and no regulation that specifically relates to the sharing of 5G network.

Some spectrum sharing arrangements are subject to approval by the Australian Competition and Consumer Commission (ACCC). Specifically, where a holder of spectrum licences authorises another carrier to use its licensed spectrum, such authorisation will be treated as an acquisition of assets subject to clearance by the ACCC. The authorisation will be prohibited if it has, or is likely to have, the effect of substantially lessening competition in any market.

There have been proposals led by some state governments to fund active sharing initiatives, particularly in regional and rural areas, where low population density sees lower numbers of carriers offering services. For example, the New South Wales government’s Gig State program includes a trial currently underway to fund the design and build of Multi-Operator Core Networks (MOCN), which enable active sharing between carriers.

Currently, there are no active sharing agreements in place between major carriers providing 5G mobile services.

Under a proposed arrangement, Telstra and TPG Telecom agreed to share active mobile network infrastructure and spectrum in certain parts of regional Australia. This arrangement is currently undergoing the ACCC merger clearance processes.

Sharing of passive physical infrastructure such as transmission towers is commonplace, particularly in regional areas where the cost of building carrier-exclusive infrastructure is prohibitive considering the relatively low customer base. This is enabled through a facilities access regime set out in telecommunications legislation and codes which requires carriers to provide access to other carriers to install telecommunications facilities on or in their physical infrastructure, subject to mandatory conditions of access, including queuing policies.

As above, there are no obligations for carriers to share access to 5G active. 

There has been limited public commentary on cybersecurity surrounding 5G networks specifically.

However, in mid-2018, the government provided 5G security guidance to carriers. This included an acknowledgment that: “the Government considers that the involvement of vendors who are likely to be subject to extrajudicial directions from a foreign government that conflict with Australian law, may risk failure by the carrier to adequately protect a 5G network from unauthorised access or interference”.  This has largely been interpreted as an effective ban in the involvement of China-based telecommunications equipment manufacturers Huawei and ZTE from involvement in 5G networks.  This has been effected through the Telecommunications Sector Security Reforms (TSSR), a package of reforms that enable the government to give action directions to carriers to do or not do a specified thing, including engaging a supplier of equipment, on the basis of national security advice it receives.