EXPLANATORY STATEMENT
Issued by the Australian Communications and Media Authority
Broadcasting Services (Start Dates for Section 38C Licence Areas) Amendment Declaration 2012 (No. 1)
Broadcasting Services Act 1992
Purpose
The purpose of the Broadcasting Services (Start Dates for Section 38C Licence Areas) Amendment Declaration 2012 (No. 1) (the Amendment Declaration) is to declare, under clause 7H of Schedule 2 to the Broadcasting Services Act 1992 (the Act), a specified day to be the start date for a licence area of a licence allocated under section 38C of the Act (section 38C licence). It does this by amending the Broadcasting Services (Start Dates for Section 38C Licence Areas) Declaration 2010 (the Principal Declaration).
Legislative Provisions
Subclause 7H(4) of Schedule 2 to the Act provides, among other things, that the Australian Communications and Media Authority (the ACMA) may declare a specified day to be the start date for the Western Australia TV3 (WA TV3) licence area.
Subclause 7H(5) requires that the start date for the WA TV3 licence area must be no later than 3 months before the end of the earliest applicable terrestrial digital television switch-over date for the licence area. Currently, the earliest applicable terrestrial digital television switch-over date for the WA TV3 licence area is 30 June 2013 (see the Broadcasting Services (Simulcast Period for Metropolitan Licence Areas) Determination (No. 1) 2009.
The declaration of a start date must be made by legislative instrument.
Background
In January 2010, the government announced an initiative to provide access to a suite of metropolitan equivalent broadcasting services to people in remote areas and terrestrial digital television ‘black spots’, who would not otherwise be able to receive commercial television broadcasting services when analog services are switched off in their licence area. This service, the Viewer Access Satellite Television (VAST) service, will provide commercial and national broadcasting services, including multi-channels.
Commercial television broadcasting services provided on the VAST service are authorised under licences allocated in accordance with section 38C of the Act.
WA Satco Pty Limited, a joint venture company of WIN and Prime Television, was allocated a section 38C licence for the WA TV3 licence area, with effect from 1 July 2011.
From the start date as declared by the ACMA, a section 38C licensee is required to provide a suite of commercial television broadcasting services, including digital multi-channels, that are the same or substantially the same as those services provided by the remote commercial broadcasting licensees within the licence area. Where the remote commercial broadcasting licensees provide fewer services than are provided in the metropolitan licence areas, the section 38C licensee will be required to replace the ‘missing’ services with services the same or substantially the same as those provided in metropolitan licence areas as provided before the end of the simulcast period for that metropolitan licence area.
WA Satco Pty Ltd has been providing the full suite of digital commercial television broadcasting services on the VAST service to the WA TV3 licence area on an interim basis since 31 July 2011. As such, the date declared by the ACMA as the start date for the WA TV3 licence area will have no practical impact on the services being provided by WA Satco Pty Ltd.
Operation
The Amendment Declaration provides that the start date for the WA TV3 licence area is the date specified in the Schedule to the Amendment Declaration, that is, 10 February 2012.
The start date for the WA TV3 licence area must be no later than three months before the end of the earliest applicable terrestrial digital television switchover date (currently 30 June 2013) within the licence area.
Consultation
Section 17 of the Legislative Instruments Act 2003 (the LIA) requires the ACMA to be satisfied that any consultation it considers to be appropriate and that is reasonably practicable to undertake has been undertaken.
Consultation with industry and the public has been undertaken. A consultation paper for public and industry comment on the proposed start date for the WA TV3 licence area was released on 15 December 2011. In addition, a copy of the consultation paper and invitation to comment was sent to Free TV and WA Satco Pty Ltd. A period of approximately 7 weeks was provided for public and industry comment (to 2 February 2012).
Statement of Compatibility
As the declaration of a start date for the WA TV3 licence area involves the preparation of a disallowable instrument, the following Statement of Compatibility with Human Rights is included:
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Broadcasting Services (Start Dates for Section 38C Licence Areas) Amendment Declaration 2012 (No. 1)
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
In the continuing transition to digital television, the government’s policy is to ensure all television viewers in Australia are able to receive free-to-air digital television broadcasting services following the switch-off of analog transmission, and to improve choice and quality of television services for people in remote and regional areas.
A key element of this strategy is the Viewer Access Satellite Television (VAST) service. The VAST service is a government-funded digital television broadcasting service delivered by satellite that provides access to a suite of metropolitan-equivalent free-to-air digital television broadcasting services to people in remote areas and in terrestrial digital television ‘black spots’.
The commercial television broadcasting services which form part of the VAST service are licensed under section 38C of the Broadcasting Services Act 1992 (the BSA). Under subclause 7H(4) of Schedule 2 to the BSA, the Australian Communications and Media Authority (the ACMA) may declare that a specified day is the ‘start date’ for the commercial television broadcasting licence allocated under section 38C for satellite delivered services in the Western Australia TV3 licence area.
The Broadcasting Services (Start Dates for Section 38C Licence Areas) Amendment Declaration 2012 (No. 1) declares the start date for the licence allocated under section 38C for satellite delivered services in the Western Australia TV3 licence area as 10 February 2012.
Human rights implications
This legislative instrument does not engage any of the applicable rights or freedoms.
Conclusion
This legislative instrument is compatible with human rights as it does not raise any human rights issues.
The rule-maker for this legislative instrument is the ACMA.
Regulatory Impact
The ACMA has considered whether a regulatory impact analysis process is required by undertaking a preliminary assessment. Based on this preliminary assessment, the Office of Best Practice Regulation (OBPR) has determined that the proposed regulatory change in this submission is minor or machinery in nature and, therefore, no further regulatory impact analysis is required – OBPR reference number 2010/12069.
Attachment
Details of the Amendment Declaration are in the Attachment.
Attachment
NOTES ON SECTIONS
Section 1 – Name of Declaration
This section provides that the name of the Amendment Declaration is the Broadcasting Services (Start Dates for Section 38C Licence Areas) Amendment Declaration 2012 (No. 1).
Section 2 – Commencement
This section provides that the Amendment Declaration commences the day it is registered on the Federal Register of Legislative Instruments.
Section 3 – Amendment of the Broadcasting Services (Start Dates for Section 38C Licence Areas) Declaration 2010
This provides that the Schedule to the Amendment Declaration amends the Principal Declaration.
Schedule 1 –Amendment
Item 1 – Section 3, after the definition of South Eastern Australia TV3 licence area and before the note
This item inserts a definition of “Western Australia TV3 licence area” into section 3 of the Principal Declaration. The definition defines the licence area to be the area specified in subsection 38C(1) of the Act.
Item 2 – Schedule 1, table 1, after item 2
This item inserts a new item 3 into table 1 in Schedule 1 to the Principal Declaration. This new item 3 effectively provides that, for the purposes of Division 2 of Part 3 of Schedule 2 to the Act, the ACMA declares that the start date for the WA TV3 licence area is 10 February 2012.