Legislative Instruments Act 2003
Section 26 – Explanatory Statement
Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2012 made under the Broadcasting Services Act 1992
Issued by the Australian Communications and Media Authority
Purpose and legislative basis
On 21 September 2012, the Australian Communications and Media Authority (the ACMA) determined the Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2012 (the Instrument). The Instrument replaces the Broadcasting Services (Additional Regional Commercial Radio Licence Condition – Local Presence) Notice 22 March 2007 (the 2007 Licence Condition).
The ACMA determined the Instrument under subsection 43(1) of the Broadcasting Services Act 1992 (the BSA) which provides that:
The ACMA may, by notice in writing given to a commercial television broadcasting licensee or a commercial radio broadcasting licensee, vary or revoke a condition of the licence or impose an additional condition on the licence.
Background
Since 2008, section 43B of the BSA has required the ACMA to ensure that there is in force under section 43 of the BSA a condition that has the effect of requiring that, if a trigger event for a regional commercial radio broadcasting licence occurs, then, after the occurrence of the event, the licensee must maintain at least the existing level of local presence.
In 2012, the Broadcasting Services Amendment (Regional Commercial Radio) Act 2012 (the Amending Act) amended the local presence obligation by exempting certain types of regional commercial radio broadcasting licences from the obligation and by requiring that, for licences still required to comply with the obligation, existing levels of local presence be maintained for 24 months only from the date of the trigger event.
The ACMA determined the Instrument under subsection 43(1) of the BSA in compliance with subsection 43B(1A).
Intended impact and effect of the Instrument
The ACMA intends that the Instrument is consistent with the local presence obligations under the BSA.
The Instrument applies only to those regional commercial radio broadcasting licences that have not been excluded by amendments to the BSA, and for those licences, the obligation is to maintain at least the existing level of local presence for 24 months from the date of occurrence of a trigger event.
Consultation
On 4 July 2012, the ACMA released a draft of the Instrument, seeking stakeholder and public comment on the proposed changes. The ACMA also published the proposed changes in the Gazette.
Consultation on the draft closed on 3 August 2012.
The ACMA is satisfied that this consultation meets the requirements of both subsection 43(2) of the BSA and section 17 of the Legislative Instruments Act 2003.
Regulatory Impact
A regulation impact statement titled Regulation Impact Statement – Amendments to Local Content and Local Presence Requirements for Regional Commercial Radio was prepared by the Department of Broadband, Communications and the Digital Economy (DBCDE) for the Review of the Local Content Requirements for Regional Commercial Radio. The Office of Best Practice Regulation (the OBPR) reviewed the regulation impact statement and assessed it as adequate under the Australian Government best practice regulation requirements - OBPR reference number 10943.
The OBPR advised that a separate Regulation Impact Statement on the Instrument was not required – OBPR reference number 13945.
As required under the Human Rights (Parliamentary Scrutiny) Act 2011, a Statement of Compatibility with Human Rights has been prepared by the ACMA and is attached.
NOTES ON INSTRUMENT
Section 1 – Name of instrument
Section 1 states that the name of the Instrument is the Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2012.
Section 2 – Commencement
This section provides that the Instrument commences on the day that Schedule 2 to the Amending Act commences.
Section 3 – Revocation
Section 3 revokes the Broadcasting Services (Additional Regional Commercial Radio Licence Condition – Local Presence) Notice 22 March 2007.
Section 4 – Purpose and application
This section sets out the purpose and application of the Instrument which is to impose additional conditions on a relevant regional commercial radio broadcasting licence. The concept of a ‘relevant’ regional commercial radio broadcasting licence reflects amendments to the BSA and means that the Instrument does not apply to remote area service radio licences, regional racing service radio licences, or licences allocated under subsection 40(1) of the BSA.
Section 5 – Definitions
Section 5 defines terms used throughout the Instrument.
The definition of ‘relevant period’ takes into account the effect of subsection 43B(1A) of the BSA which was inserted into the BSA by the Amending Act. The ‘relevant period’ for which a licensee must maintain at least the existing level of local presence is 24 months beginning when a trigger event for the licence occurs.
A ‘relevant regional commercial radio broadcasting licence’ is one which is not a remote area service radio licence, a regional racing service radio licence or a licence allocated under subsection 40(1) of the BSA. .
A note to the section explains that other terms used in the Instrument are defined in the BSA and have the same meaning as in the BSA.
Section 6 – Definition of existing level of local presence
This section sets out the meaning of 'existing level of local presence’. The way in which the existing level of local presence is assessed is unchanged from the 2007 Licence Condition.
Section 7 – Licensee must maintain existing level of local presence after trigger event
This section sets out the obligation that, if a trigger event for a regional commercial radio broadcasting licence occurs, the licensee must maintain at least the existing level of local presence in the licence area throughout the 24 month period beginning on the date the trigger event occurs for the licence. This requirement modifies the previous requirement in the 2007 Licence Condition which was to maintain existing levels of local presence for an indefinite period after a trigger event had occurred for the licence.
Section 8 – Reporting to the ACMA
Section 8 sets out reporting requirements for affected licensees. After a trigger event for a licence occurs, licensees must report to the ACMA on the existing level of local presence and must do so within 90 days of the trigger event occurring (subsection 8(1)). A licensee must also report to the ACMA within 3 months of a ‘relevant period’ on its compliance with the obligation to maintain at least the existing level of local presence throughout the relevant period (subsection 8(2)). A ‘relevant period’ as defined in section 5 of the Instrument means the period beginning on the date a trigger event for the licence occurs and ending 24 months later. The reporting obligations in the Instrument are largely unchanged from the 2007 Licence Condition except that the obligation to report on the licence condition does not continue in perpetuity.
Section 9 – Records
This section requires a person who holds a relevant regional commercial radio broadcasting licence to make and keep certain records and to make those records available to the ACMA on request. A similar requirement existed in the 2007 Licence Condition.
However, different retention periods apply to a person who holds a relevant regional commercial radio licence depending on whether a trigger event has occurred for that licence. Before a trigger event occurs for a licence, records must be kept for a period of six months (subsection 9(4)). However, after a trigger event has occurred for a relevant regional commercial radio broadcasting licence, records must be kept for three years (subsection 9(5)). The ACMA may also give additional directions to a licensee about the keeping of records for the purposes of section 9 (subsection 9(6)).
Section 10 – Measuring compliance with section 7
Section 10 sets out how the ACMA will measure a licensee's compliance with the obligation at section 7 of the Instrument to maintain at least the existing level of local presence after a trigger event. This methodology remains unchanged from the 2007 Licence Condition.
Section 11 – The ACMA may conduct a review at any time
This section provides that the ACMA may review the operation and scope of the Instrument at any time. This provision remains unchanged from the equivalent provision in the 2007 Licence Condition.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2012
This Legislative Instrument 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 Legislative Instrument
Under the Broadcasting Services Act 1992 (BSA) licensees of regional commercial radio broadcasting licences must maintain at least the existing level of local presence in the licence area after a trigger event occurs for the licence. (‘Trigger event’ is defined in section 61CB of the BSA). The ACMA has defined the existing level of local presence and how it will be measured in a legislative instrument.
The Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2012 (the Instrument) replaces the Broadcasting Services (Additional Regional Commercial Radio Licence Condition – Local Presence) Notice 22 March 2007 (the 2007 Licence Condition).
The Instrument reflects amendments in 2012 to the BSA in that the obligations apply to fewer regional commercial radio broadcasting licences and for a shorter period of time.
Other changes from the 2007 Licence Condition effected by the Instrument are of a minor nature and are largely directed at reducing the compliance burden on licensees.
Human Rights Implications
The Instrument engages the following human rights:
Right to work
Under the International Covenant on Economic, Social and Cultural Rights (the ICESCR), economic, social and cultural rights (such as the right to work) may be subject to limitations but only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society' (see Article 4).
The Instrument engages the right to work, because it requires relevant regional commercial radio licensees affected by a trigger event to maintain the existing level of local presence in the licence area for 24 months; this includes the staffing levels calculated by reference to the three month period preceding the trigger event..
While the Instrument may protect the right to work of an affected licensee's local staff for 24 months after the trigger event, it also limits, to some extent, the licensee's ability to utilise staff located outside the licence area. This limitation is proportionate and reasonable as the local presence obligations are intended to ensure that commercial radio services in regional areas continue to maintain the same level of local presence in the licence area after the licence is subject to a trigger event (as defined in section 61CB of the BSA).
The Instrument is therefore consistent with Article 4 of the ICESCR, in that the obligation imposed by the Instrument, insofar as it may limit a licensee’s ability to utilise staff located outside the licence area, reflects Parliament’s intention, subsists in limited circumstances for a relatively short period of time (24 months), and is necessary to ensure that the rights of regional radio listeners are respected.
Conclusion
The Instrument is compatible with human rights and to the extent that it may limit human rights those limitations are reasonable, necessary and proportionate.