EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Broadcasting Services Act 1992
Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2024
Authority
The Australian Communications and Media Authority (the ACMA) has made the Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2024 (the Instrument) under subsection 43(1) of the Broadcasting Services Act 1992 (the Act) and subsection 33(3) of the Acts Interpretation Act 1901 (the AIA).
Subsection 43(1) of the Act 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.
Subsection 33(3) of the AIA provides that where an Act confers a power to make a legislative instrument, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Purpose and operation of the Instrument
The Instrument repeals the Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2014 (the 2014 Licence Condition) and remakes a new licence condition in similar terms. The Instrument is made pursuant to subsection 43B(1A) of the Act and is made without substantive change to the repealed 2014 Licence Condition.
The ACMA has made the Instrument because the 2014 Licence Condition was due to ‘sunset’ (i.e. be automatically repealed) on 1 October 2024, in accordance with Part 4 of Chapter 3 of the Legislation Act 2003 (the LA). Following review, and consultation as described below, the ACMA formed the view that the 2014 Licence Condition was operating effectively and efficiently, and continued to form a necessary and useful part of the legislative framework.
Section 43B of the Act requires the ACMA to ensure there is in force, at all times, a licence condition that has the effect of requiring a regional commercial radio broadcasting licensee to maintain at least the existing level of local presence for the 24-month period following a ‘trigger event’.
Accordingly, the ACMA has remade the 2014 Licence Condition by making the Instrument, without any significant changes, so that its on-going effect is preserved.
Under section 61CB of the Act a ‘trigger event’ is defined as the transfer of the licence, change in control of the licence or the formation of a new, or change in control of an existing, registrable media group.
Section 43B of the Act specifies that a licence condition made by the ACMA in accordance with that section must define ‘existing level of local presence’ for the purposes of the licence condition in a way that deals with staffing levels related to the licence and the use of studios and other production facilities.
The Instrument is consistent with the requirements imposed by section 43B of the Act.
The Instrument does not apply to licences that are a remote area service radio licence, a regional racing service radio licence or a licence allocated under subsection 40(1) of the Act.
The Instrument requires the licensee of a regional commercial radio licence that is affected by a trigger event to provide the following reports to the ACMA:
- a report on the existing level of local presence at the time of the trigger event within 3 months after a trigger event; and
- a report on the licensee’s compliance with the requirement to maintain at least the existing level of local presence within 3 months after the end of the 24-month period following the trigger event.
A provision-by-provision description of the Instrument is set out in the notes at Attachment A.
The Instrument is a disallowable legislative instrument for the purposes of the LA.
Documents incorporated by reference
The Instrument incorporates the Act (including by the adoption of definitions), as in force from time to time, by reference. The Act is available free of charge from the Federal Register of Legislation (www.legislation.gov.au).
The following Acts are referred to in the instrument, but are not incorporated by reference:
- The Acts Interpretation Act 1901; and
- The Legislation Act 2003
Consultation
Before the Instrument was made, the ACMA was satisfied that consultation was undertaken to the extent appropriate and reasonably practicable, in accordance with section 17 of the LA.
As part of an initial review of the 2014 Licence Condition, the ACMA sought, and considered, comments from Commercial Radio and Audio (CRA) about the operation of that licence condition.
While subsection 43B(5) of the Act has the effect that the Instrument is not subject to notification requirements under subsection 43(2), the ACMA conducted a 4-week consultation process from 15 July 2024 to 12 August 2024 seeking comment on a draft of the Instrument from affected licensees, CRA and the public. As part of this process the ACMA published a draft of the proposed instrument (in materially the same form as the Instrument), and an explanatory consultation paper, on its website.
Regulatory impact assessment
A preliminary assessment of the proposal to make the Instrument was conducted by the Office of Impact Analysis (OIA), based on information provided by the ACMA, for the purposes of determining whether a Regulation Impact Statement (RIS) would be required.
OIA advised that a RIS would not be required because the Instrument contained no substantive changes and only minor amendments which will not change the effect or operation of the licence condition (OIA reference number – OIA24-07545).
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 LA applies to cause a statement of compatibility with human rights to be prepared in respect of that legislative instrument.
The statement of compatibility with human rights set out in Attachment B has been prepared to meet that requirement.
Attachment A
Notes to the Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2024
Part 1–Preliminary
Section 1 Name of Instrument
This section provides for the Instrument to be cited as the Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2024.
Section 2 Commencement
This section provides for the instrument to commence at the start of the day after the day it is registered on the Federal Register of Legislation.
The Federal Register of Legislation may be accessed free of charge at www.legislation.gov.au.
Section 3 Authority
This section identifies the provision of the Act that authorises the making of the Instrument, namely subsection 43(1) of the Broadcasting Services Act 1992 (the Act).
Section 4 Repeal of the Broadcasting Services (Regional Commercial Radio– Local Presence) Licence Condition 2014
This section provides that the Broadcasting Services (Regional Commercial Radio–Local Presence) Licence Condition 2014 (F2014L01264) is repealed.
Section 5 Purpose and Application
This section sets out the purpose and application of the Instrument. Its purpose is to impose conditions on certain regional commercial radio broadcasting licences pursuant to subsection 43B(1A) of the Act. Its application is to regional commercial radio licences that are not remote area service radio licences, regional racing service radio licences, or licences allocated under subsection 40(1) of the Act.
Part 2–Terms used in this Instrument
Section 6 Definitions
This section defines a number of key terms used throughout the Instrument. The definitions for metropolitan licence area and regional licence area that were in the 2014 Licence Condition have not been included, as reliance is now placed on the term regional commercial radio broadcasting licence, which was inserted into section 6 of the Act after the 2014 Licence Condition was made.
A number of other expressions used in the Instrument are defined in the Act.
Section 7 Definition of existing level of local presence
This section sets out the meaning of existing level of local presence in the Instrument.
Levels of local presence are established by reference to staffing levels and to the use of studios and other productions facilities. The existing levels of local presence for each are determined using the calculation methods provided in subsections 7(2) and 7(3) of the Instrument.
Part 3 – Licence Conditions
Section 8 Licensee must maintain existing level of local presence after trigger event
This section creates the obligation that, if a trigger event for a relevant 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.
Section 9 Reporting to the ACMA
This section sets out reporting requirements for an affected licensee. After a trigger event for a licence occurs, the licensee must report to the ACMA in writing on the existing level of local presence and must do so within 3 months of the trigger event occurring.
The provision also requires a licensee to report to the ACMA within 3 months after the end of the ‘relevant period’ during which a licensee must comply with the obligation to maintain at least the existing level of local presence.
A 'relevant period' is defined in section 6 of the Instrument and 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 the same as those in the repealed 2014 Licence Condition.
Part 4 – Measuring Compliance
Section 10 Measuring compliance with section 8
This section sets out how the ACMA will measure a licensee’s compliance with the obligation at section 8 of the Instrument to maintain at least the existing level of local presence after a trigger event.
In respect of staffing levels, the existing level of local presence is maintained if, at the conclusion of the ‘relevant period’, there has been no material reduction in the average monthly staffing level compared with the staffing levels determined by subsection 7(2) (subsection 10(1) of the Instrument).
In respect of studios and other production facilities, the existing level of local presence is maintained if, at the conclusion of the ‘relevant period’, there has been no material reduction in the number of average monthly broadcast hours produced using studios and other production facilities in the licence area compared with the number of average monthly hours produced using studio and other production facilities determined by subsection 7(3) (subsection 10(2) of the Instrument).
In determining what constitutes a ‘material reduction’ in each circumstance, the ACMA will generally have regard to relevant standards published by the Australian Accounting Standards Board.
Attachment B
Statement of compatibility with human rights
Prepared by the Australian Communications and Media Authority under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011
Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2024
Overview of the Instrument
The Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2024 (the Instrument) replaces the Broadcasting Services (Regional Commercial Radio – Local Presence) Licence Condition 2014 (the 2014 Licence Condition).
The Australian Communications and Media Authority (the ACMA) is required to make the Instrument under sections 43 and 43B of the Broadcasting Services Act 1992 (the Act).
The Instrument ensures there are licence conditions in force, at all times, that have the effect of requiring the licensees of relevant regional commercial radio broadcasting licences to maintain at least the existing level of local presence in the licence area after a trigger event occurs for the licence (the local presence licence obligation).
‘Trigger event’ is defined in section 61CB of the Act and the ACMA has defined 'existing level of local presence' in the Instrument and how it will be measured.
The Instrument defines the ‘existing level of local presence’ by reference to staffing levels related to the licence and the use of studios and other production facilities in the licence area by the former licensee.
The Instrument is substantially unchanged from the 2014 Licence Condition which was scheduled to sunset on 1 October 2024.
Human Rights Implications
The ACMA has assessed whether the Instrument is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.
Having considered the likely impact of the Instrument and the nature of the applicable rights and freedoms, the ACMA has formed the view that the Instrument engages human rights recognised under the International Covenant on Economic, Social and Cultural Rights (the ICESCR).
Under 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 at least maintain the existing level of local presence in the licence area for 24 months; this includes maintaining the same staffing levels as 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 may also have the effect of limiting, 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.
Conclusion
The Instrument is compatible with human rights, and to the extent that it may limit human rights, those limitations have a clear legal basis and are reasonable, necessary, and proportionate in achieving a legitimate objective.