Explanatory Statement
Broadcasting Services Act 1992
Broadcasting Services (Digital-Only Local Market Area for the Southern New South Wales TV1 Licence Area) Determination (No. 1) 2012
Issued by the authority of the Minister for Broadband, Communications
and the Digital Economy
Purpose
The Broadcasting Services (Digital-Only Local Market Area for the Southern New South Wales TV1 Licence Area) Determination (No. 1) 2012 (the Determination) is made by the Minister for Broadband, Communications and the Digital Economy (the Minister) under subclause 5F(1) of Schedule 4 to the Broadcasting Services Act 1992 (the BSA). The Determination is a legislative instrument for the purposes of section 5 of the Legislative Instruments Act 2003.
The purpose of the Determination is to determine that a specified area within the Southern New South Wales TV1 licence area is to become a digital-only local market area from a specified time. This Determination determines that the area within the Southern New South Wales TV1 licence area that is within a 10km radius of the Thredbo Transmission Site is to become a digital-only local market area from and including 17 April 2012.
This would require commercial television broadcasting licensees and national broadcasters in this digital-only local market area to cease transmitting their services in analog mode from the specified time. After that time, television broadcasts may only be transmitted in digital mode in the digital-only local market area.
Background
Legislative background
The BSA enables the Minister to implement a phased, region-by-region digital television switchover timetable for metropolitan and regional licence areas. The dates for digital television switchover are set through a transitional period, known as the ‘simulcast period’, during which national and commercial television broadcasters are required to transmit simultaneously in analog and standard definition digital mode. At the end of the simulcast period, or at a time an area becomes a digital-only local market area, analog transmissions must cease. Only digital television transmissions are permitted after that time.
Clause 5F of Schedule 4 to the BSA gives the Minister the power to determine, by legislative instrument, ‘digital-only local market areas’ for a licence area. The instrument has two components: the specification of a local market area and the specification of the time the local market area becomes a digital-only market area. This facilitates a switchover timetable based on geographical areas other than licence areas, recognising that a single licence area may contain a variety of local geographic, technical and market circumstances. In practice, clause 5F allows multiple switchover dates to be determined in a single licence area. Any part of a licence area that is not determined to be a digital-only local market area will switchover at the end of the simulcast period for the licence area or coverage area.
The making of a digital-only local market area is subject to the condition that the local market area be wholly included within a licence area (subclause 5F(2) of Schedule 4 to the BSA refers) and a time specified for a local market area to become a digital-only local market area must fall within the simulcast period for the licence area concerned (subclause 5F(3)). Once made, a determination is irrevocable (subclause 5F(4)), although it may be varied subject to the limitations set out in subclauses 5F(5) to (10). The Minister must consult the Australian Communications and Media Authority (ACMA) before making or varying a determination (subclause 5F(11)).
Simulcast period and establishment of digital-only services in the Southern New South Wales TV1 licence area
The Southern New South Wales TV1 licence area is a regional licence area for the purposes of Schedule 4 to the BSA. In accordance with subclause 6A(2) of Schedule 4 to the BSA, the Minister for Broadband, Communications and the Digital Economy has determined that the simulcast period for the Southern New South Wales TV1 licence area will run until and including 5 June 2012 (the Broadcasting Services (Simulcast Period for Southern New South Wales TV1 and Griffith and MIA TV1) Determination (No. 1) 2011 refers).
Broadcasters have advised that the Thredbo Transmission Site within that licence area may need to switch to digital-only television transmission before the end of the simulcast period on 5 June 2012, due to there being insufficient space for both analog and digital transmission equipment at the site.
This Determination would enable analog switchoff to take place and digital transmission to commence at the site on 17 April 2012. Licensees in the Remote Central and Eastern Australia TV1 licence area, part of which overlaps with the Southern New South Wales TV1 licence area, will continue to be able to transmit in analog after that date.
Notes on Clauses
Clause 1 provides that the name of the Determination is the Broadcasting Services (Digital-Only Local Market Area for the Southern New South Wales TV1 Licence Area) Determination (No. 1) 2012.
Clause 2 provides that the Determination takes effect on the day it is registered on the Federal Register of Legislative Instruments.
Clause 3 is a definitions clause.
Clause 4 is the main operative clause.
Clause 4 provides that a specified area within the Southern New South Wales TV1 licence area is a local market area for the purposes of Schedule 4 to the BSA (subclause 4.1 refers). This area is to become a digital-only local market area from and including the date specified under subclause 4.2.
Subclause 4.1 provides that the area within the Southern New South Wales TV1 licence area that is within a 10km radius of the Thredbo Transmission Site is a local market area. Subclause 4.2 provides that this local market area is to become a digital-only local market area from and including 17 April 2012. The Thredbo Transmission Site is the location at 36 degrees 29 minutes 41 seconds south latitude and 148 degrees 17 minutes 10 seconds east longitude, which is known as Eagles Nest Restaurant, Mount Crackenback, with the Site Identification Number 9734 (clause 3 refers).
Details of the site are contained in the Register of Radiocommunications Licences, which is established and maintained by the ACMA in accordance with section 143 of the Radiocommunications Act 1992 and the Radiocommunications (Register of Radiocommunications Licences) Determination 1997 (clause 3 refers).
The digital-only local market area determined by this Determination is illustrated in the map at Attachment A. The map identifies the location of the Thredbo Transmission Site and the area within the Southern New South Wales TV1 licence area that is within a 10km radius of that site. The digital-only local market area is illustrated in blue. The map also illustrates the interaction between the Southern New South Wales TV1 licence area and the Remote Central and Eastern TV1 licence area. Parts of these two licence areas overlap. The area in yellow represents part of the Remote Central and Eastern TV1 licence area. The area in light grey represents part of the Southern New South Wales TV1 licence area. The areas with the dark grey pattern represent some of the overlap between the Southern New South Wales TV1 and Remote Central and Eastern TV1 licence areas.
Statement of Compatibility with Human Rights (prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011)
This Determination 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. This is because the Determination does not engage any of the applicable rights or freedoms and does not raise any human rights issues.
Australia is a signatory to the International Covenant on Civil and Political Rights (one of the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011) (the ICCPR). Article 19 of the ICCPR deals with freedom of expression and Australia has made a reservation to paragraph 2 of Article 19.
This Determination is consistent with such reservation, which states that the regulation of television broadcasting in the public interest with the object of providing the best possible broadcasting services to the Australian people is compatible with Article 19 of the ICCPR.
Consultation
In accordance with subclause 5F(11) of Schedule 4 to the BSA, the Minister consulted with the ACMA before making this Determination. The ACMA raised no substantive concerns about the making of this Determination.