Broadcasting (Charges) Amendment Determination 2022 (No.1)

EXPLANATORY STATEMENT

Approved by the Australian Communications and Media Authority

Australian Communications and Media Authority Act 2005

Broadcasting (Charges) Amendment Determination 2022 (No. 1)

Authority

The Australian Communications and Media Authority (the ACMA) has made the Broadcasting (Charges) Amendment Determination 2022 (No. 1) (the instrument) under subsection 60(1) of the Australian Communications and Media Authority Act 2005 (the Act).

Subsection 60(1) of the Act provides that the ACMA may, by written instrument, make determinations fixing charges for services provided by the ACMA and in relation to any matter in which expenses are incurred by the ACMA under the Act, and other specified Acts, including the Broadcasting Services Act 1992 (BSA).  The charges must not be such as to amount to taxation.

Section 33 of the Acts Interpretation Act 1901 relevantly provides that where an Act confers powers to make a legislative instrument, the power shall be construed as including a power exercisable in the like manner, and subject to the like conditions (if any), to repeal, rescind, revoke, amend or vary any such instrument.  The instrument amends the Broadcasting (Charges) Determination 2017 (F2017L00334) (the 2017 Determination).

Purpose and operation of the instrument

The 2017 Determination, made under subsection 60(1) of the Act, specifies the charges payable to the ACMA for considering and processing applications for the issue and renewal of a range of broadcasting licences, as well as charges payable for the preparing and giving of opinions on application under section 21 or section 74 of the BSA.

The instrument amends a number of the charges specified in the 2017 Determination. The changes to the charges resulted from the ACMA’s review of fees and charges across the agency, including broadcasting charges.  The review led to the updating of specific fees and charges, as well as the standard hourly rate applied by the ACMA when determining the fees and charges. All of the broadcasting charges in the 2017 Determination were reviewed and changes have been made to either the amount of the charge or to the way the charge is to be determined. In addition, one charge (for licences allocated under subsection 36(1) of the BSA) has been removed.

The purpose of the amendments is to implement the ACMA’s new broadcasting charges from 1 October 2022.

The instrument is a disallowable legislative instrument for the purposes of the Legislation Act 2003 (the LA).

A provision-by-provision description of the instrument is set out in the notes at Attachment A.

Attachment C sets out each charge item being amended by the instrument, the variance in comparison with the charges in the 2017 Determination, and the reasons for the variance.

Documents incorporated by reference

The instrument incorporates the following Acts (including by adoption of definitions), or otherwise refers to them:

-          the Act; and

-          the BSA.

The Acts listed above may be obtained from the Federal Register of Legislation (http://www.legislation.gov.au).  The Acts listed above are incorporated as in force from time to time, in accordance with section 10 of the Acts Interpretation Act 1901 and subsection 13(1) of the LA. 

Consultation

Before the instrument was made, the ACMA was satisfied that consultation was undertaken to the extent appropriate and reasonably practicable, in accordance with section 17 of the LA. 

The ACMA consulted the public, including industry stakeholders, on the making of the instrument.  Between 25 June 2022 and 25 July 2022, the ACMA conducted a consultation process inviting submissions on a number of proposed changes to fees for services determined under cost recovery arrangements.  The consultation was facilitated through the release of a consultation package which included draft instruments, including a draft of the instrument, and a draft Cost Recovery Implementation Statement (CRIS) on the ACMA’s website. 

The consultation package outlined the proposed changes to the 2017 Determination as well as to a number of other instruments relating to fees and charges set by the ACMA. The draft CRIS contained an explanation for the amendments made to the 2017 Determination, including reasons for the change in charges. Interested parties were invited to comment on the consultation package, including the proposed changes to the 2017 Determination.  

The ACMA received five submissions in response to the consultation paper. None of the submissions related to the changes proposed in this instrument. No changes were made to the instrument as a result of the consultation.

The submissions are available on the ACMA website.

Regulatory impact assessment

A preliminary assessment of the proposal was conducted by the Office of Best Practice Regulation (OBPR) based on information provided by the ACMA for the purposes of determining whether a Regulation Impact Statement (RIS) would be required.  OBPR considered that the proposal was unlikely to have more than a minor regulatory impact on business and advised that the preparation of a RIS was not required (see OBPR reference number 22-01877).

Statement of compatibility with human rights

Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule-maker in relation to a legislative instrument to which section 42 (disallowance) of the LA applies to cause a statement of compatibility with human rights to be prepared in respect of that legislative instrument. 

The statement of compatibility set out in Attachment B has been prepared to meet that requirement.

Attachment A

Notes to the Broadcasting (Charges) Amendment Determination 2022 (No. 1)

Section 1 Name

This section provides for the instrument to be cited as the Broadcasting (Charges) Amendment Determination 2022 (No. 1) (the instrument).

Section 2 Commencement

This section provides for the instrument to commence on 1 October 2022. 

The instrument will be registered on the Federal Register of Legislation, which may be accessed free of charge at www.legislation.gov.au.

Section 3 Authority

This section identifies the provision that authorises the making of the instrument, namely subsection 60(1) of the Australian Communications and Media Authority Act 2005 (the Act).

Section 4 Amendments

This section provides that the Broadcasting (Charges) Determination 2017 is amended as set out in the Schedule.

Schedule - Amendments

Item 1 repeals and substitutes section 9 of the instrument which specifies when a charge is payable and by whom.  All charges relating to an application for a broadcasting licence of a kind specified in Part 1 of Schedule 1 are payable by the applicant for the licence, when the application is made. The same applies to the deposit payable on application for an international broadcasting licence under section 121FA of the Broadcasting Services Act 1992 (BSA). Charges for the provision of opinions under sections 21 and 74 of the BSA are payable by the applicant for an opinion, by the due date specified in an invoice issued by the ACMA to the applicant.

Item 2 inserts new sections 10 and 11 after section 9 of the instrument. Section 10 specifies the hourly rate of charge for each person providing a service or matter to which the rate applies. The hourly rate for a completed hour is $226, or for part of an hour, the proportion of $226 equal to the proportion of an hour for which charge is to be made.

Section 11 relates to applications for an international broadcasting licence under section 121FA of the BSA, and provides the rules applicable where a deposit for the charge specified in item 1 of Part 3 of Schedule 1 is paid. Section 11 provides that if:

(a)    the aggregate of any further charges payable under item 2 of Part 3 of Schedule 1 is less than the deposit, then the ACMA will deduct the additional charges from the deposit and refund the balance to the applicant; or

(b)    the aggregate of any further charges payable under item 2 of Part 3 of Schedule 1 is more than the deposit, then the applicant must pay the difference of the charge by the due date specified in an invoice issued by the ACMA to the applicant for the charge (as set out in paragraph 9(c) of the instrument).

Item 3 repeals and substitutes Part 1 of Schedule 1 to the 2017 Determination to amend charges applicable for applications for various broadcasting licences. The charges applicable are for considering and processing applications for:

-          an additional television licence in a one or two station market under section 38A or 38B of the BSA;

-          a non-broadcasting services bands commercial television broadcasting licence or commercial radio broadcasting licence under section 40 of the BSA;

-          renewal of a commercial television broadcasting licence or commercial radio broadcasting licence under section 46 of the BSA;

-          a subscription television broadcasting licence under section 96 of the BSA; or

-          a datacasting licence under clause 7 of Schedule 6 to the BSA.

All these charges have been reduced. The reasons for the reduction in charges is further explained in Attachment C.

For the calculation of charges, the ACMA applied its standard hourly rate and monthly survey information obtained in the 2020-21 financial year and estimated the average time taken by a proficient officer to perform an activity. The ACMA’s standard hourly rate has been updated to reflect its current costs. The figure of $226 is based on the cost of services incurred by the ACMA in executing its functions for the 2020–21 financial year. This rate was established by taking the net cost of services of the ACMA’s business units for 2020–21, including an attribution of all corporate and support costs, and dividing this cost by the total number of productive hours for the 2020–21 financial year.  The main reason for the decrease in charges (despite the increase in the hourly rate) is due to greater efficiency in the effort required by the ACMA to provide the services concerned.

The charge relating to considering and processing applications for a commercial television broadcasting licence or commercial radio broadcasting licence to be allocated using a price based allocation system under subsection 36(1) of the BSA, which was previously in item 1 of Part 1 of Schedule 1 to the 2017 Determination, has been removed.

The charge for application for an international broadcasting licence is now set out in new Part 3 of Schedule 1 (see item 6 below).

Items 4 and 5 amend the charges for preparing and giving an opinion on application under section 21 or section 74 of the BSA. The ACMA will no longer charge an upfront fee for preparing and giving an opinion on application under sections 21 and 74 of the BSA. The charges will now be based on the actual time taken to provide the service, determined using the ACMA’s standard hourly rate set out in new section 10. The change in the way the charge is determined accounts for the fact that the time taken to provide an opinion under section 21 or 74 can vary significantly depending on the merits of each application. Given this, the ACMA considered that a fee based on the actual time spent would be a more accurate way to charge for an opinion under section 21 or 74 of the BSA. Applicants will be required to pay the charges by the due date specified in an invoice issued by the ACMA to the applicant for the charge.

Item 6 inserts a new Part 3 in Schedule 1 to the 2017 Determination. Part 3 specifies the charges payable for considering and processing an application for an international broadcasting licence under section 121FA of the BSA. The previous fixed charge for the consideration of an application for an international broadcasting licence has been split into 2 components – a deposit payable on application for the licence (item 1 of Part 3 of Schedule 1), and the charge for processing the application based on the actual time taken to provide the service and determined using the ACMA’s standard hourly rate (item 2 of Part 3 of Schedule 1).

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Attachment B

Statement of compatibility with human rights

Prepared by the Australian Communications and Media Authority under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011

Broadcasting (Charges) Amendment Determination 2022 (No. 1)

Overview of the instrument

Subsection 60(1) of the Australian Communications and Media Authority Act 2005 (the Act) provides that the ACMA may, by written instrument, make determinations fixing charges for services provided by the ACMA and for any matter in relation to which expenses are incurred by the ACMA under various Acts, including the Broadcasting Services Act 1992. A charge must not be such as to amount to taxation. The Broadcasting (Charges) Amendment Determination 2022 (No. 1) (the instrument) amends the Broadcasting (Charges) Determination 2017 which is made under subsection 60(1) of the Act. The amendments resulted from a review of broadcasting charges.

Human rights implications

The ACMA has assessed whether the instrument is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.

Having considered the likely impact of the instrument and the nature of the applicable rights and freedoms, the ACMA has formed the view that the instrument does not engage any of those rights or freedoms.

Conclusion

The instrument is compatible with human rights as it does not raise any human rights issues.

 Attachment C

Fees – Detailed explanation