EXPLANATORY STATEMENT
Prepared by the Australian Communications and Media Authority
Broadcasting Services Act 1992
Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2016 (No.1)
Purpose
The Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2016 (No. 1) (the Amendment Declaration) amends the Broadcasting Service (Primary Commercial Television Broadcasting Service) Declaration 2010 (the Principal Declaration) to change the declaration of primary commercial television broadcasting service (primary service) of commercial television broadcasting licensees associated with the WIN Network (WIN), Southern Cross Austereo (SCA), Prime Media Group (Prime) and NBN Television (NBN) in the Principal Declaration, to reflect:
- changes in affiliations between these licensees and metropolitan commercial television broadcasting licensees;
- changes in certain services being declared from standard definition to high definition multi-channelled commercial television broadcasting services; and
- changes to the on air identification tag of services.
Legislative provisions
Subclause 41G(2) of Schedule 4 to the Broadcasting Services Act 1992 (the Act) provides that the Australian Communications and Media Authority (the ACMA) may, by legislative instrument, declare a specified multi-channelled commercial television broadcasting service (multi-channel) provided by a commercial television broadcasting licensee to be the primary service of the licensee. Subclause 41G(4) provides that the ACMA may, by legislative instrument, declare one or more specified multi-channels provided by a commercial television broadcasting licensee whose licence was allocated under section 38C (a satellite licence). Declarations under subclause 41G(2) or (4) must be in force at all times (subclauses 41G(3) and (6)).
An instrument made under clause 41G of Schedule 4 to the Act is a legislative instrument for the purposes of the Legislation Act 2003 (the LA). 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 to the Act and subsection 33(3) of the AIA.
Background
Under the Act, commercial television broadcasting licensees are authorised to deliver multiple commercial television broadcasting services in digital mode under a single commercial television broadcasting service licence. This is referred to as ‘multi-channelling’.
The ACMA, under clause 41G of Schedule 4 to the Act, made the Principal Declaration in 2010. The Principal Declaration declares one of each commercial television broadcasting licensees’ multi-channelled services as their primary service in a specified licence area; in relation to satellite licensees, the Principal Declaration declares three multi-channelled services to be the licensees’ primary services.
A primary service is used to identify the service to which certain regulatory provisions of the Act and the Commercial Television Industry Code of Practice 2015 apply.
On 29 April 2016 Nine Entertainment Co. (Nine) and SCA announced the signing of a new regional television affiliation agreement. The agreement allows commercial television broadcasting licensees controlled by SCA to broadcast content from Nine’s metropolitan commercial television broadcasting licensees into regional Queensland, southern New South Wales and regional Victoria from 1 July 2016. Previously, SCA was affiliated with Network Ten (Ten) in these markets.
On 23 May 2016 Ten and WIN announced the signing of a new regional television affiliation agreement. The five year agreement allows commercial television broadcasting licensees controlled by WIN to broadcast Ten’s content across its regional network from 1 July 2016. Previously, WIN was affiliated with Nine.
Under the Principal Declaration the primary service for each commercial broadcasting service, in each of the licence areas where the service is provided, is specified by reference to its on-air identification tag. As a result of the change in affiliations of SCA and WIN with the metropolitan commercial networks (Nine and Ten), those regional television broadcasters have changed the on-air identification tag of their multi-channels to reflect the change in affiliation and content.
In addition, in most licence areas WIN has asked for the HD multi-channel tagged on air as WINHD to be declared as the primary service.
The Amendment Declaration specifies a new on-air identification tag for each of the affected commercial television broadcasting licensees in Column 4 of Schedules 1 (terrestrial television services) and 3 (satellite television services) to the Principal Declaration.
Operation
The Amendment Declaration declares new primary services in Column 4 of Schedules 1 and 3 to the Principal Declaration for each affected licensee: a multi-channel that is identified with a new on-air identification tag.
The Amendment Declaration ensures that the Principal Declaration, in Column 4 of Schedules 1 and 3, identifies a multi-channel provided by a commercial television broadcasting licensee as the primary service(s) for that licensee in its licence area. The Amendment Declaration affects the declaration of primary services in relation to licence areas in which commercial television broadcasting licensees are controlled by WIN and SCA (including licensees that are joint venture companies controlled by WIN or SCA and another commercial television broadcasting licensee).
Additionally the Amendment Declaration updates the on-air identification tag for certain Prime services and for the NBN service. These changes to not represent a substantive change to the primary channel declared.
These changes will ensure the regulatory obligations under the Act, pertaining to the primary services, will remain enforceable.
Consultation
Subsection 17(1) of the LA requires that, before the ACMA makes a legislative instrument, it must be satisfied that any consultation that is considered by the ACMA to be appropriate, and that is reasonably practicable to undertake, has been undertaken.
The amendment to the Principal Declaration is minor and machinery in nature and is made as a consequence of:
- changes in commercial arrangements between the affected commercial television broadcasting licensees controlled by SCA or WIN, and their affiliated metropolitan television networks (TEN and Nine, respectively);
- consequential changes to on-air identification tags of the multi-channels provided by the licensees controlled by WIN and SCA, to reflect the new commercial affiliation agreements;
- changes to certain multi-channels being declared, that are controlled by WIN, to declare a high definition multi-channelled commercial television broadcasting service as the primary service; and
- changes to the on-air identification tags of other licensed services.
On 26 May 2016, the ACMA wrote to WIN and SCA requesting information about the changes to the primary services for the relevant licensees. The Amendment Declaration reflects the advice provided by WIN and SCA. A draft of the Amendment Declaration was also provided to Free TV Australia for comment.
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 20930.
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 2016 (No. 1)
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 2016 (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 Legislation.
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 to the Amendment Declaration
Item 1
Item 1 substitutes the existing Table 1 of Schedule 1 to the Principal Declaration with a new Table 1 that includes renamed on-air identification tags relating to declared primary services provided under 28 licences in the following licence areas:
> WINHD in the Mildura/Sunraysia TV1 licence area (item 1)
> PRIME7 in the Mildura/Sunraysia TV1 licence area (item 2)
> 9 in the Mildura/Sunraysia TV1 licence area (item 3)
> WINHD in the Mount Gambier/South East TV1 licence area (item 10)
> 9 in the Mount Gambier/South East TV1 licence area (item 11)
> 7HD in the Mount Gambier/South East TV1licence area (item 12)
> WINHD in the Riverland TV1 licence area (item 13)
> 9 in the Riverland TV1 licence area (item 14)
> 7HD in the Riverland TV1 licence area (item 15)
> PRIME7 in the Regional Victoria TV1 licence area (item 16)
> WINHD in the Regional Victoria licence area (item 17)
> 9 in the Eastern Victoria TV1 licence area (item 18)
> 9 in the Western Victoria TV1 licence area (item 19)
> WINHD in the Griffith & Murrumbidgee Irrigation Area (MIA) TV1 licence (item 20)
> 7HD in the Griffith & Murrumbidgee Irrigation Area (MIA) TV1 licence (item 21)
> 9 in the Griffith & Murrumbidgee Irrigation Area (MIA) TV1 licence (item 22)
> 9 in the Southern NSW TV1 licence area (item 23)
> WINHD in the Southern NSW TV1 licence area (item 25)
> WINHD in the Tasmanian TV1 licence area (item 29)
> 9 in the Tasmanian TV1 licence area (item 31)
> 9 in the Regional Queensland TV1 licence area (item 38)
> WINHD in the Regional Queensland TV1 licence area (item 40)
> 9 in the Geraldton TV1 licence area (item 42)
> 9 in the Kalgoorlie TV 1 licence area (item 44)
> 9 in the South West & Great Southern TV1 licence area (item 46)
> 9 in the Western Zone TV1 licence area (item 48)
> WINHD in the Remote & Regional Western Australia TV1 licence area (item 49)
> 9NBN in the Northern NSW TV1 licence area (item 53)
Item 2
Item 2 substitutes the existing Table 1 of Schedule 3 to the Principal Declaration (which lists all the primary services for satellite licensees) with a new Table 1 that includes renamed on-air identification tags relating to two of the declared primary services provided under one licence in the following licence area:
> 9 and WINHD in the Western Australia TV3 licence area
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 2016 (No.1)
The Broadcasting Services (Primary Commercial Television Broadcasting Service) Amendment Declaration 2016 (No.1) (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 to change the primary commercial television broadcasting service (primary service) of particular regional commercial television broadcasting licensees (the licensees), identified by the on-air identification tag referenced in Schedules 1 and 3 to the Principal Declaration. The amendments reflect changes in the multi-channelled commercial television broadcasting services provided by these licensees, as a result of changes in commercial agreements between these licensees and metropolitan commercial television broadcasting licensees.
Human rights implications
The Amendment Declaration was made pursuant to clause 41G of Schedule 4 to the Act. The Amendment Declaration is of a minor or machinery nature, as it only changes references to primary services consequential upon changes in commercial arrangements between the licensees and metropolitan commercial television broadcasting licensees. It changes the identity of the multi-channelled commercial television broadcasting service that is to be a licensee’s primary service to reflect: the changed commercial arrangements, updates to on-air identification tags and a request by WIN Network to declare its licensees’ HD multi-channel as their primary service in most licence areas. It does not otherwise alter the regulatory regime that applies to commercial television broadcasting services.
Conclusion
The ACMA has considered whether the Amendment Declaration 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.