Explanatory Statement
Broadcasting Services Act 1992
Broadcasting Services (Digital-Only Local Market Areas for Northern New South Wales TV1) Determination (No. 1) 2012 (Amendment No. 2 of 2012)
Issued by the Authority of the Minister for Broadband, Communications
and the Digital Economy
Purpose
The Broadcasting Services (Digital-Only Local Market Areas for Northern New South Wales TV1) Determination (No. 1) 2012 (Amendment No. 2 of 2012) (the Determination) is made by the Minister for Broadband, Communications and the Digital Economy (the Minister) under subclause 5F(5) 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 vary the Broadcasting Services (Digital-Only Local Market Areas for Northern New South Wales TV1) Determination (No. 1) 2012 (the Principal Determination), made under subclause 5F(1) of Schedule 4 to the BSA. The effect of this Determination is that the area within the Northern New South Wales TV1 licence area that is within a 15km radius of the Ocean Shores Transmission Site would become a digital-only local market area from and including 13 September 2012.
This would require television broadcasters in these digital-only local market areas 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 areas.
Background
Legislative background
The BSA allows 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 (unless an area is a digital-only local market area). 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 local 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 (subclause 5F(5)) subject to the limitation set out in subclause 5F(6). 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 Northern New South Wales TV1 licence area
The Northern 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 determined that the simulcast period for the Northern New South Wales TV1 licence area will run until and including 3 December 2013 (the Broadcasting Services (Simulcast Period for Northern New South Wales TV1) Determination (No. 1) 2012 refers).
Separately, under subclause 5F(1) of Schedule 4 to the BSA, the Minister determined that the area within the Northern New South Wales TV1 licence area, other than the areas that overlap with the Brisbane TV1 licence area and the Sydney TV1 licence area, is to become a digital-only local market area from and including 27 November 2012 (the Principal Determination refers). This area includes the Ocean Shores Transmission Site.
This Determination amends the Principal Determination to determine that the area within the Northern New South Wales TV1 licence area that is within a 15km radius of the Ocean Shores Transmission Site would become a digital-only local market area from an earlier date, that is, from and including 13 September 2012 (rather than from and including 27 November 2012). The date on which the remaining area would become a digital-only local market area would not change (ie. 27 November 2012).
Results in the Digital Tracker report released quarterly by the Digital Switchover Taskforce within the Department of Broadband, Communications and the Digital Economy indicate that, in the first quarter of 2012, 94 per cent of households in Northern New South Wales were aware of switchover and 85 per cent had already converted at least their main television set.
The DOLMA will enable digital transmissions at the Ocean Shores Site to commence on their final channels, thereby avoiding the need to disrupt services in the area at a later date.
Notes on Clauses
Clause 1 provides that the name of the Determination is the Broadcasting Services (Digital-Only Local Market Areas for Northern New South Wales TV1) Determination (No. 1) 2012 (Amendment No. 2 of 2012).
Clause 2 provides that the Determination takes effect on the day after it is registered on the Federal Register of Legislative Instruments.
Clause 3 is a definitions clause.
Clause 4 is the main operative clause.
Subclause 4.1 of this Determination omits paragraph 4.1(a) of the Principal Determination and substitutes it with a new paragraph 4.1(a).
New paragraph 4.1(a) provides that, for the purposes of Schedule 4 to the BSA, the Northern New South Wales TV1 licence area except for:
(i) the area that overlaps with the Brisbane TV1 licence area;
(ii) the area that overlaps with the Sydney TV1 licence area; and
(iii) the area specified under new paragraph 4.1(c);
is a local market area. This area would become a digital-only local market area from and including 27 November 2012 (paragraph 4.2(a) of the Principal Determination refers).
The effect of new paragraph 4.1(a) is that the area within a 15km radius of the Ocean Shores Transmission Site would be carved out from the local market area specified in that paragraph, as this area would be dealt with under new paragraph 4.1(c).
New paragraph 4.1(c) (inserted into the Principal Determination by subclause 4.2 of this Determination) provides that the area within the Northern New South Wales TV1 licence area that is within a 15km radius of the Ocean Shores Transmission Site is a local market area for the purposes of Schedule 4 to the BSA. This area would become a digital-only local market area from and including 13 September 2012, in accordance with new paragraph 4.2(c) (inserted into the Principal Determination by subclause 4.4 of this Determination).
Ocean Shores Transmission Site is the location at 28 degrees 31 minutes 35 seconds south latitude and 153 degrees 32 minutes and 05 seconds east longitude, which is known as the Broadcast Site Tongarra Reservoir OCEAN SHORES, with the Site Identification Number 41091, as identified in the Register of Radiocommunications Licences. Details of the Ocean Shores Transmission 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 (subclause 3.1 refers).
Subclause 4.3 of this Determination makes an amendment to the Principal Determination that is consequential to the amendment in subclause 4.4 of this Determination.
The new digital-only local market area related to the Ocean Shores Transmission Site is illustrated in the map at Attachments A. The map identifies the location of the Ocean Shores Transmission Site and the area within the specified distance. The digital-only local market area is illustrated in blue.
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.
The effect of this Determination is that analog transmissions cease once the area that is within a 15km radius of the Ocean Shores Transmission Site becomes a digital-only local market area. Transmission in this area becomes digital only. The change in the mode of transmission does not limit the fundamental human right to freedom of expression as the viewer continues to have free access to television broadcasting services, albeit in digital mode only.
The move to digital television is reasonably accessible to all Australians and where vulnerable Australians need support to access digital television they are provided practical assistance by the Australian government through various programs.
The cessation of analog mode television is a necessary technological change, which has been occurring around the world. Digital television is more spectrally efficient and delivers television programs using a higher quality of transmission service and thus enhances the viewing experience for Australian audiences.
Based on this, this Determination is compatible with the rights protected by Article 15(1) of the ICESCR and Article 19(2) 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.