EXPLANATORY STATEMENT
Prepared by the Australian Communications and Media Authority
Broadcasting Services (Primary Commercial Television Broadcasting Service)
Amendment Declaration 2015 (No. 1)
Purpose
The Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2015 (No. 1) (the Amendment Declaration) amends the Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010 (the Principal Declaration)
The Amendment Declaration removes obsolete provisions and concepts from the Principal Declaration.
Legislative provisions
Clause 41G of Schedule 4 to the Broadcasting Services Act 1992 (the Act) provides that the Australian Communications and Media Authority (the ACMA) may declare certain SDTV multi-channelled commercial television broadcasting services (SDTV multi-channels) provided by a commercial television broadcasting licensee (licensee) to be the primary commercial television broadcasting service (primary service) of the licensee. In some cases, the ACMA was obliged to declare SDTV multi-channels to be primary services.
An instrument made under clause 41G of Schedule 4 to the Act is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (the LIA). Section 33(3) of the Acts Interpretation Act 1901 provides that the power to make an instrument includes the power to amend or revoke the instrument, unless the contrary intention appears.
Background
Transition to digital transmission
Schedule 4 to the Act sets out a regime for the transition from transmission of commercial and national television broadcasting services in analog mode to transmission in digital mode. Before the commencement of Schedule 4, each licensee provided a single[1] commercial television broadcasting service in its licence area, transmitted in analog mode (analog service).
A fundamental concept of the transition process was that of the ‘simulcast period’. Each licence area had its own simulcast period, during which the analog service was to be accompanied by a ‘digital simulcast’ – essentially, an identical transmission of the analog service, but in digital mode. Many of the obligations that applied to the analog service also applied to the digital simulcast.
During a simulcast period, a licensee was permitted to provide four services in the licence area (see sections 41A and 41B of the Act):
- the analog service
- the digital simulcast
- a single SDTV multi-channel
- a single HDTV multi-channelled commercial television broadcasting service (HDTV multi-channel)
Licence areas with fewer than three licensees
Before and during the transition process, some regional and remote areas of Australia did not receive the services of three licensees (the metropolitan areas of Australia generally received the services of three licensees). As mentioned, section 38A allowed the sole licensee in a licence area to be allocated a second licence. Section 38B allowed a third licence to be allocated in licence areas with only two licences. These provisions eventually resulted in each licence area receiving the services of three licensees.
However, all the licences allocated under section 38B, and some of the licences allocated under section 38A, authorised transmission in digital mode only, although they were eventually allowed to provide the same number of services in digital mode as a licensee of a licence allocated other than under section 38A or section 38B (standard licence), namely:
- two SDTV multi-channels
- a single HDTV multi-channel.
Although there was no analog service, and therefore no digital simulcast, Parliament intended for one of the SDTV multi-channels provided by the section 38A licensees and section 38B licensees to be subject to the same requirements as the digital simulcast provided by standard licensees. Accordingly, the Act obliged the ACMA to declare one of the SDTV multi-channels to be the primary service of the licence during the simulcast period.
The simulcast periods were all required to end by 31 December 2013 (clauses 6A and 6B of Schedule 4 to the Act).
Satellite licences
The Act also allowed the ACMA to allocate additional licences under section 38C. These licences authorised the transmission of services within a “satellite licence area” by satellite; the services authorised were, essentially, those transmitted terrestrially by standard licensees, section 38A licensees and section 38B licensees in the licence areas that were covered by the satellite licence area (see sections 38C and 41CA of the Act).
The Act also required the ACMA to declare up to three primary services for the section 38C licensees, with effect from the “start date” for the licence. Section 38C licensees were obliged to commence providing services from the start date, which was declared by the ACMA (see clauses 7B and 7H of Schedule 2 to the Act). The start dates declared by the ACMA have all passed (see the Broadcasting Services (Start Dates for Section 38C Licence Areas) Declaration 2010 (repealed)).
Operation
The Amendment Declaration removes from the Principal Declaration the declarations of primary services for section 38A licensees and section 38B licensees during the simulcast period. As the simulcast periods have all ceased, these declarations are obsolete and no longer required. Declarations of primary services that have effect after the simulcast periods continue unaffected.
The Amendment Declaration also removes from the Principal Declaration references to the start dates for section 38C licensees. As all the start dates have passed, the references are no longer required. This does not affect the actual declaration of primary services for the section 38C licensees.
Consultation
Subsection 17(1) of the LIA requires that, before the ACMA makes a legislative instrument, it must be satisfied that any consultation that the ACMA considers is appropriate and reasonably practicable to undertake, has been undertaken. Section 18 gives examples of instruments where consultation may be unnecessary or inappropriate, including instruments that are of a minor or machinery nature and that do not substantially alter existing arrangements (paragraph 18(1)(a)).
As the Amendment Declaration removes obsolete sections and references to obsolete concepts, and has no substantive effect, the ACMA has not conducted any consultation on the Amendment Declaration.
Regulation impact
The Office of Best Practice Regulation (OBPR) considered the matter and formed the opinion that the making of the Amendment Declaration would have regulatory impacts that are minor or machinery in nature. Accordingly, OBPR advised that a Regulation Impact Statement was not required for the Amendment Declaration. The OBPR exemption number is 18356.
Detailed description of the Amendment Declaration
Details of the Amendment Declaration are in Attachment A.
Documents Incorporated in the Amendment Declaration by Reference
The Amendment Declaration does not incorporate any documents.
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 LIA applies to cause a statement of compatibility to be prepared in respect of that legislative instrument.
This statement has been prepared for that purpose.
The Amendment Declaration, which removes obsolete provisions and references to obsolete concepts from the Principal Declaration and which does not alter existing rights or obligations, 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.
The ACMA has considered whether the Amendment Declarations engages any applicable human rights or freedoms and has formed the view that it does not. The Amendment Declaration is compatible with human rights as it does not raise any human rights issues.
Attachment A
Notes on provisions of the Amendment Declaration
Section 1 Name of Declaration
Section 1 provides that the name of the Amendment Declaration is the Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2015 (No. 1).
Section 2 Commencement
Section 2 provides that the Amendment Declaration commences on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 Amendment
Section 3 provides that the Schedule to the Amendment Declaration amends the Principal Declaration.
Schedule
Clauses 1 to 6
Section 3 of the Principal Declaration defines terms used in the Principal Declaration. Clauses 1 to 6 omit the following terms, which are no longer used as a result of other changes made by the Amendment Declaration:
- end of the simulcast-equivalent period
- end of the simulcast period
- remote licence area
- simulcast-equivalent period
- simulcast period
- start date
Clauses 7 and 12
Clause 7 changes the heading of section 4 to remove references to simulcast periods, and to refer to the “broadcasting services bands”.
Clause 12 makes an equivalent change to the heading of Schedule 1.
Clauses 8, 9 and 14
Clause 8 removes subsection 4(2) of the Principal Declaration, because there is no further need for this reference to the simulcast period.
Section 5 of the Principal Declaration declares the primary services for those section 38A licensees and section 38B licensees that transmitted in digital mode only during the simulcast period. Clause 9 removes this section because the simulcast periods have all ceased. Clause 14 omits Schedule 2, which listed all the primary services for these licensees during the simulcast periods.
Clauses 10 and 15
Clause 10 changes the heading of section 6 of the Principal Determination, to remove a reference to start dates. Clause 15 makes an equivalent change to Schedule 3, which lists all the primary services for section 38C licensees.
Clause 11
Subsection 6(2) of the Principal Declaration limits the operation of section 6 to after the start dates for the section 38C licensees. Clause 11 removes this subsection, because there is no further need for reference to start dates – the remainder of section 6 has ongoing effect.
Clauses 13 and 16
These clauses make a grammtical correction to a note to each of Schedule 1 and Schedule 3 to the Principal Declaration.
[1] Before the commencement of Schedule 4, the licensee in a licence area with only one commercial television broadcasting licence was able to be allocated a second licence under section 38A of the Act, and therefore provide two services in analog mode.