EXPLANATORY STATEMENT
Prepared by the Australian Communications and Media Authority
Broadcasting Services Act 1992
Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2015 (No. 2)
Purpose
The Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2015 (No. 2) (the Amendment Declaration) amends the Broadcasting Service (Primary Commercial Television Broadcasting Service) Declaration 2010 (the Principal Declaration) so that the primary commercial television broadcasting service (primary service) of a commercial television broadcasting licensee (the licensee) can be provided either in high definition television (HDTV) or standard definition television (SDTV) format. In this regard the Amendment Declaration keeps the Principal Declaration consistent with recent amendments to a similar effect made to the Broadcasting Services Act 1992 (the Act) by the Broadcasting Legislation Amendment (Primary Television Broadcasting Service) Act 2015 (the Amending Act).
Legislative provisions
Clause 41G of Schedule 4 to the Act provides that the Australian Communications and Media Authority (the ACMA) may, by written instrument, declare a specified multi-channelled commercial television broadcasting service, provided by a licensee, to be the primary service of the licensee.
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). Subsection 33(3) of the Acts Interpretation Act 1901 (the AIA) has the effect that the power to make an instrument includes the power to amend or revoke the instrument, unless the contrary intention appears.
The ACMA has made the Amendment Declaration in accordance with clause 41G of Schedule 4 of the Act and subsection 33(3) of the AIA.
Background
The introduction of digital television in Australia has meant that broadcasters were given the technical capacity to transmit several channels simultaneously (multi-channelling). The requirement for commercial television broadcasting licensees to provide their primary television service in SDTV mode was introduced at the start of the digital switchover process to ensure viewers would have access to at least one digital channel per broadcaster. At the time not all consumer grade television receivers were capable of receiving HDTV.
The ACMA, under subclause 41G(2) of Schedule 4 to the Act, made the Principal Declaration, which declared that the SDTV multi-channelled commercial TV broadcasting services specified in the Declaration were the primary services of the corresponding commercial television broadcasting licensees specified in the Declaration. Under clause 41G of Schedule 4 of the Act, the ACMA could, at the time of making of the Principal Declaration, only declare a SDTV multi-channeled commercial television broadcasting service to be a licensee’s primary service. This meant that a licensee’s primary service could not be provided in HDTV mode.
Upon the completion of the switchover to digital television, and given the high proportion of household ownership of HDTV consumer grade TV receivers, there is no longer a need for the requirement of SDTV to be the mandatory mode for a licensee’s primary service.
On 16 September 2015, the Amending Act came into force and this allows licensees to provide their primary service in either SDTV or HDTV mode.
Operation
The Amendment Declaration removes the definition of a ‘SDTV multi-channelled commercial television broadcasting service’ in the Principal Declaration and replaces it with a definition of ‘multi-channelled commercial television broadcasting service’, which means either a SDTV multi-channelled commercial television broadcasting service as defined in clause 5A of Schedule 4 to the Act, or a HDTV multi-channelled commercial television broadcasting service as defined in clause 5B of Schedule 4 to the Act.
The Amendment Declaration also removes all references to ‘SDTV’ throughout the Principal Declaration.
The primary service of licensees declared in the Principal Declaration will remain unchanged.
This will permit licensees of terrestrial TV services and licensees of services on the Viewer Access Satellite Television Platform, to offer their primary service to viewers in either SDTV or HDTV mode.
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) of the LIA); or
- an instrument in relation to which appropriate consultation has already been undertaken by someone other than the rule‑maker (paragraph 18(1)(e) of the LIA).
As the Amendment Declaration has been made as a result of the amendment of the primary enabling legislative provision, namely clause 41G of Schedule 4 of the Act, the Amendment Declaration is considered to be machinery in nature.
In addition, the Explanatory Memorandum to the Amending Act noted that when the then Department of Communications released a consultation paper on Digital Television Regulation, it sought submissions on future arrangements for digital television regulation. The measure to permit licensees to provide their primary service in either SDTV or HDTV mode was strongly supported by the industry and members of the public. On this basis the ACMA considered that the appropriate consultation had already been undertaken by the Department in relation to the subject matter of the Amendment Declaration, as contemplated by paragraph 18(1)(e) of the LIA.
Therefore the ACMA concluded it was not necessary to conduct further consultation in relation to 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 19741.
Detailed description of the Amendment Declaration
Details of the Amendment Declaration are set out in Attachment A.
Documents Incorporated in the Amendment Declaration by Reference
The Amendment Declaration does not incorporate any documents by reference.
Statement of Compatibility with Human Rights
The Statement of Compatibility with Human Rights for the Amendment Declaration is set out in Attachment B.
Attachment A
Details of the Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2015 (No. 2)
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. 2).
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 of the Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010
Section 3 provides that the Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010 (the Principal Declaration) is amended as set out in Schedule 1 to the Amendment Declaration.
Schedule 1 to the Amendment Declaration
Item 1
Section 3 of the Principal Declaration defines terms used in the Principal Declaration.
Item 1 of Schedule 1 to the Amendment Declaration omits the term ‘SDTV multi-channelled commercial television broadcasting service’ and replaces it with the term ‘multi-channelled commercial television broadcasting service’. This expands the operation of the Principal Declaration so that the ACMA may, by written instrument, declare a specified multi-channelled commercial television broadcasting service, either a high definition television (HDTV) or a standard definition television (SDTV), provided by a commercial television broadcasting licensee to be the primary commercial television broadcasting service of that licensee.
Item 2
Section 4 of the Principal Declaration declares the primary service of each licensee authorised to operate commercial television broadcasting services.
Item 2 of Schedule 1 to the Amendment Declaration omits ‘SDTV’ from subsections 4(1), (3) and (4) of the Principal Declaration.
Item 3
Section 6 of the Principal Declaration declares the primary service of licensees, provided by the use of a satellite, allocated under section 38C of the Broadcasting Services Act 1992.
Item 3 of Schedule 1 to the Amendment Declaration omits the word ‘SDTV’ from subsections 6(1), (3) and (4) of the Principal Declaration.
Attachment B
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2015 (No.2)
The Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2015 (No.2) (the Amendment Declaration) 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 Amendment Declaration
The Amendment Declaration amends the Broadcasting Services (Primary Commercial Television Broadcasting Service) Declaration 2010 so that the primary commercial television broadcasting service (primary service) of a commercial television broadcasting licensee (the licensee) can be provided either in high definition television (HDTV) or standard definition television (SDTV) format. In this regard the Amendment Declaration keeps the Principal Declaration consistent with recent amendments to a similar effect made to the Broadcasting Services Act 1992 (the Act).
In effect, a licensee will now have greater flexibility to provide their primary service in either SDTV or HDTV mode.
Human rights implications
The Amendment Declaration was made pursuant to clause 41G of Schedule 4 of the Act, which was recently amended by the Broadcasting Legislation Amendment (Primary Television Broadcasting Service) Act 2015 (the Amending Act). The Amendment Declaration is of a minor or machinery nature, as it makes changes consequential upon the changes made by the Amending Act.
It is noted that the Statement of Compatibility with Human Rights for the Amending Act concluded that it was compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Conclusion
The Amendment Declaration is compatible with human rights as it does not raise any human rights issues separate to those arising under the Amending Act.