EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Broadcasting Services Act 1992
Broadcasting Services (Deemed Digital Radio Licence Areas) Amendment Determination 2019 (No. 1)
Authority
The Australian Communications and Media Authority (the ACMA) has made the Broadcasting Services (Deemed Digital Radio Licence Areas) Amendment Determination 2019 (No. 1) (the instrument) under subsection 8AD(3) of the Broadcasting Services Act 1992 (the Act) and subsection 33(3) of the Acts Interpretation Act 1901 (the AIA).
Subsection 8AD(3) of the Act provides that the ACMA may determine, by legislative instrument, that a specified licence area of a community radio broadcasting licence is taken to be the same as a specified licence area of a commercial radio broadcasting licence.
Subsection 33(3) of the AIA relevantly provides that where an Act confers a power 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.
Purpose and operation of the instrument
The instrument amends the Broadcasting Services (Deemed Digital Radio Licence Areas) Determination 2017 (F2017L01573) such that the specified community radio broadcasting licence area, Hobart RA3, is to be taken, for the purposes of digital radio, to be the same as the specified commercial radio broadcasting licence area, Hobart RA1. In deeming the Hobart RA3 licence area to be taken to be the same as the Hobart RA1 licence area, the community radio broadcasting licensee in the Hobart RA3 licence area becomes eligible to provide digital radio broadcasting services in the Hobart RA1 licence area, and may be able to access the foundation digital radio multiplex transmitters planned for the Hobart RA1 licence area.
Digital radio services have been introduced into Australia in accordance with the Act and the Radiocommunications Act 1992. Digital radio services from commercial radio broadcasters and national broadcasters have been operating in certain metropolitan areas (Sydney, Melbourne, Brisbane, Adelaide and Perth) since 1 July 2009.
Unlike analog radio, where each licensee or national broadcaster has one or more discrete transmitters for each service, DAB+ digital radio functions by combining the services from several broadcasting licensees into a ‘multiplex’, which is transmitted over a digital radio multiplex transmitter.
A provision-by-provision description of the instrument is set out in the notes at Attachment A.
The instrument is a legislative instrument for the purposes of the Legislation Act 2003.
Document incorporated by reference
In accordance with section 14 of the Legislation Act 2003, the instrument incorporates, by reference, the Licence Area Plan – Hobart Radio (F2005B00971), as in force from time to time. The Licence Area Plan – Hobart Radio is a legislative instrument that can be accessed, free of charge, on the Federal Register of Legislation at www.legislation.gov.au.
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 Legislation Act 2003.
In July 2019, the ACMA published a consultation paper on its proposal to make the instrument on the ACMA’s website for a period of 6 weeks, inviting comments from interested parties. The consultation period ended on 21 August 2019. The ACMA received three submissions to the consultation. Before making the instrument, the ACMA considered the submissions. One submission raised concerns about the community radio broadcasting licensee providing a digital service in an area larger than the licence area for its analog service. The ACMA considered that the benefits in providing the licensee with the opportunity to transmit in digital mode within the analog licence area outweighed any disadvantages that may arise from digital transmission in an area larger than the analog licence area.
Those benefits, which include allowing the licensee to provide its service in digital mode within its analog licence area, accord with the objects of the Act, including promoting the availability of a diverse range of radio services (paragraph 3(1)(a) of the Act), promoting the availability of radio programs of local significance (paragraph 3(1)(ea) of the Act) and promoting the provision of high quality and innovative programming (paragraph 3(1)(f) of the Act).
Regulatory impact assessment
In 2016, a preliminary assessment of the proposal to make legislative instruments for the purpose of expanding digital radio into regional Australia, which included determinations under subsection 8AD(3), 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 would be required. OBPR advised that a Regulation Impact Statement would not be required because the anticipated legislative instruments were considered machinery of government changes and were not expected to have a regulatory impact on businesses, community organisations or individuals (OBPR reference number 2138).
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 Legislation Act 2003 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 below has been prepared to meet that requirement.
Overview of the instrument
The instrument provides for a specified community radio broadcasting licence area to be taken, for the purposes of digital radio, to be the same as a specified commercial radio broadcasting licence area. In deeming these areas to be taken to be the same, a community radio broadcasting licensee becomes eligible to provide digital radio broadcasting services and to access a digital radio multiplex transmitter.
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 A
Notes to the Broadcasting Services (Deemed Digital Radio Licence Areas) Amendment Determination 2019 (No. 1)
Section 1 Name
This section provides for the instrument to be cited as the Broadcasting Services (Deemed Digital Radio Licence Areas) Amendment Determination 2019 (No. 1).
Section 2 Commencement
This section provides for the instrument to commence at the start of the day after it is registered on the Federal Register of Legislation.
The Federal Register of Legislation may be accessed free of charge at www.legislation.gov.au.
Section 3 Authority
This section identifies the provision of the Act that authorises the making of the instrument, namely subsection 8AD(3).
Section 4 Amendment
This section provides that the instrument specified in Schedule 1 is amended as set out in the item in that Schedule.
Schedule 1
Item 1
This item inserts references to the Hobart RA3 licence area and the Hobart RA1 radio licence area; under section 6 of the Broadcasting Services (Deemed Digital Radio Licence Areas) Determination 2017 (F2017L01573), the former is taken to be the same as the latter for the purposes of the application of certain provisions to digital community radio broadcasting services.