Legislative Instruments Act 2003
Section 26 - Explanatory Statement
Broadcasting Services (Commercial Radio Advertising) Standard Revocation 2013 made under the Broadcasting Services Act 1992
Issued by the Australian Communications and Media Authority
Purpose and Legislative Basis
On 11 March 2013, the Australian Communications and Media Authority (the ACMA) determined the Broadcasting Services (Commercial Radio Advertising) Standard Revocation 2013 (the Revocation Instrument). The Revocation Instrument revokes the Broadcasting Services (Commercial Radio Advertising) Standard 2012 (the 2012 Advertising Standard).
The 2012 Advertising Standard was determined by the ACMA in 2012, under subsection 125(1) of the Broadcasting Services Act 1992 (the BSA), which requires the ACMA to determine a program standard in relation to a matter referred to in subsection 123(2) where:
(a) the ACMA is satisfied that there is convincing evidence that a code of practice registered under section 123 of the BSA is not operating to provide appropriate community safeguards in relation to that matter; and
(b) the ACMA is satisfied that it should determine a standard in relation to that matter.
The ACMA's power to revoke the 2012 Advertising Standard is recognised in sections 126 and 127 of the BSA, and derives from subsection 33(3) of the Acts Interpretation Act 1901 (Cth).
The ACMA has made the Revocation Instrument because the commercial radio industry has submitted an industry code of practice dealing with the same matters covered by the 2012 Advertising Standard. The ACMA has agreed to register this code.
Under subsection 123(4) of the BSA, the ACMA must include a code in the Register of Codes of Practice if:
(a) a group representing a particular section of the broadcasting industry develops a code of practice to be observed in the conduct of the broadcasting operations of that section of the industry; and
(b) the ACMA is satisfied that:
(i) the code of practice provides appropriate community safeguards for the matters covered by the code; and
(ii) the code is endorsed by a majority of the providers of broadcasting services in that section of the industry; and
(iii) members of the public have been given an adequate opportunity to comment on the code.
Background
The 2000 Advertising Standard
As part of the Commercial Radio Inquiry 2000, one of the ACMA's predecessor agencies, the Australian Broadcasting Authority (the ABA), formed the view that the commercial radio industry’s codes of practice were not operating to provide appropriate community safeguards. In response, the ABA determined three program standards including the Broadcasting Services (Commercial Radio Advertising) Standard 2000 (the 2000 Advertising Standard) which dealt with advertising on commercial radio.
The 2000 Advertising Standard required commercial radio licensees to ensure that all advertisements broadcast were clearly distinguishable from other program material. Complaints from the public about compliance with this obligation could be made directly to the ACMA because compliance with program standards is a licence condition under clause 8(1)(b) of Schedule 2 to the BSA.
ACMA review
In 2008, the ACMA commenced a review of the commercial radio standards which considered the effectiveness, efficiency and appropriateness of the regulatory arrangements under the three commercial radio standards. In November 2011, the ACMA released its report Review of the Commercial Radio Standards, and decided to continue to regulate advertising on commercial radio through a program standard until such time as the commercial radio industry had in place an appropriate code of practice dealing with advertising.
The 2012 Advertising Standard
In early 2012, the ACMA made the 2012 Advertising Standard (which revoked and replaced the 2000 Advertising Standard) under section 125 of the BSA.
A key difference between the 2012 Advertising Standard and the previous standard was the requirement under the 2012 Advertising Standard for licensees to ensure all advertisements were distinguishable, at the time of broadcast, from other program material.
Intended impact and effect of the Revocation Instrument
The Revocation Instrument revokes the 2012 Advertising Standard on the day after the Revocation Instrument is registered on the Federal Register of Legislative Instruments.
The revocation of the 2012 Advertising Standard means there will no longer be a requirement under a licence condition for commercial radio licencees to ensure that advertisements are distinguishable, at the time of broadcast, from other program material.
To avoid any regulatory gap in respect of commercial radio advertising, the ACMA has registered an industry code of practice that requires licensees to ensure that all advertisements on commercial radio are distinguishable, at the time of broadcast, from other program material. All complaints about compliance with the code will need to be made to the licensee in the first instance, with complainants being able to later refer the matter to the ACMA for investigation if they consider the licensee’s response to the complaint is inadequate, or if no response has been received from the licensee within 60 days after making the complaint.
Consultation
Before revoking a standard made under section 125 of the BSA, the ACMA must seek public comment on the proposed revocation as required by section 126 of the BSA. Section 17 of the Legislative Instruments Act 2003 (the LIA) also sets out consultation requirements that are relevant to revoking the 2012 Advertising Standard.
Consultation on the Revocation Instrument was conducted through the ACMA website and an 'Issues for Comment' notification was provided to a wide range or stakeholders and citizens through the ACMA media email update. Consultation was open for three weeks, with comments closing on Tuesday 19 February 2013.
This consultation process was conducted in accordance with the requirements of section 126 of the BSA and section 17 of the LIA. The ACMA considers the consultation was reasonable and appropriate, and that affected parties were given an adequate opportunity to comment on the Revocation Instrument.
Regulatory Impact
A regulation impact statement (RIS) titled Regulation Impact Statement – Review of the Commercial Radio Standards was prepared by the ACMA for the review of the commercial radio standards and the associated reforms. The Office of Best Practice Regulation (the OBPR) reviewed the RIS and assessed it as adequate under the Australian Government best practice regulation requirements – OBPR reference number 12308. This RIS remains relevant to the revocation of the 2012 Advertising Standard.
As required under the Human Rights (Parliamentary Scrutiny) Act 2011, a human rights compatibility statement has been prepared and is attached.
NOTES ON INSTRUMENT
Section 1 – Name of instrument
Section 1 provides that the name of the Revocation Instrument is the Broadcasting Services (Commercial Radio Advertising) Standard Revocation 2013.
Section 2 – Commencement
This section states that the Revocation Instrument commences the day after registration on the Federal Register of Legislative Instruments.
Section 3 – Revocation of the Broadcasting Services (Commercial Radio Advertising) Standard 2012
This section states that the Broadcasting Services (Commercial Radio Advertising) Standard 2012 is revoked.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Broadcasting Services (Commercial Radio Advertising) Standard Revocation 2013
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Broadcasting Services (Commercial Radio Advertising) Standard Revocation 2013 (the Revocation Instrument) revokes the Broadcasting Services (Commercial Radio Advertising) Standard 2012 (the 2012 Advertising Standard).
The revocation of the 2012 Advertising Standard means there will no longer be a requirement under a licence condition for commercial radio broadcasting licensees to ensure that all advertisements broadcast are distinguishable, at the time of broadcast, from other program material.
Following revocation of the 2012 Advertising Standard, commercial radio licensees will have to comply with an industry code of practice that requires that all advertisements are distinguishable, at the time of broadcast, from other program material.
Human Rights Implications
Freedom of expression
Under the International Covenant on Civil and Political Rights (the ICCPR), any measures that restrict freedom of expression must be necessary and proportionate to the legitimate aims being sought.
The Revocation Instrument revokes the 2012 Advertising Standard. The 2012 Advertising Standard engaged the right to freedom of expression in a limited way as it imposed (through a licence condition requiring compliance with the standard) on commercial radio licensees the obligation to ensure that all advertising was distinguishable, at the time of broadcast, from other program material. The imposition of this obligation on commercial radio licensees was considered proportionate and reasonable as it did not unduly restrict the form or content of the information licensees disseminate.
The 2012 Advertising Standard aimed to ensure there were sufficient safeguards in place to prevent the public being misled into believing that paid advertising material was program material. It did not interfere with the ability of commercial radio presenters, licensees or sponsors to impart information or ideas through radio advertising. In particular, it did not limit or restrict the right of commercial radio licensees or advertisers to broadcast commercial advertising.
The 2012 Advertising Standard was consistent with Article 19 of the ICCPR in that it did not impose any obligation or specifically restrict the right to freedom of expression, except to the extent reasonably necessary to serve the legitimate aim of ensuring the open dissemination of ideas.
The ACMA has agreed to revoke the 2012 Advertising Standard in favour of an industry code of practice which imposes obligations that are very close in language and effect to those imposed by the 2012 Advertising Standard. The key difference between an industry code and a program standard is that code complaints must be made in the first instance to the licensee, rather than to the ACMA.
The Revocation Instrument is consistent with Article 19 of the ICCPR in that the Revocation Instrument does not impose any obligation which restricts the right to freedom of expression.
Conclusion
The Revocation Instrument is compatible with human rights.