EXPLANATORY STATEMENT
Issued by the Australian Communications and Media Authority
Datacasting Charge (Amount) Determination 2015
Datacasting Charge (Imposition) Act 1998
Purpose
The Australian Communications and Media Authority (the ACMA) made the Datacasting Charge (Amount) Determination 2015 (the 2015 Determination) to replace the Datacasting Charge (Amount) Determination 2001 (the 2001 Determination) without making any significant changes to the regulatory arrangements created by the 2001 Determination.
The ACMA made the 2015 Determination as the 2001 Determination was due to be automatically repealed on 1 April 2015, in accordance with Part 6 of the Legislative Instruments Act 2003 (the LIA).
Legislative provisions
The ACMA made the 2015 Determination under subsection 7(1) of the Datacasting Charge (Imposition) Act 1998 (the Imposition Act).
Section 6 of the Imposition Act imposes a charge, in respect of a financial year, on a transmitter licence issued under the Radiocommunications Act 1992 (the Radcomms Act) which authorises the holder to transmit datacasting services in digital mode, where the transmitter licence is held by a commercial (or community) television broadcasting licensee who used the transmitter to transmit datacasting services in digital mode under the authority of a datacasting licence issued under Schedule 6 to the Broadcasting Services Act 1992 (the BSA).
Under subsection 7(1) of the Imposition Act, the amount of charge imposed on a transmitter licence in respect of a financial year is the amount ascertained in accordance with a written determination made by the ACMA.
The 2015 Determination is a legislative instrument for the purposes of the LIA.
Subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make a legislative instrument, the power shall be construed to include 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. The 2015 Determination is made under subsection 7(1) of the Imposition Act and revokes the 2001 Determination.
Background
Under subsection 102(3) and paragraph 102(5)(a) of the Radcomms Act, a transmitter licence issued to a commercial television or community broadcaster which authorises the operation of one or more specified radiocommunications transmitters for transmitting the service in digital mode, is also taken to authorise the operation of the transmitter (or transmitters) for transmitting datacasting services in digital mode using those channels, provided the person also holds a datacasting licence issued under Schedule 6 of the BSA authorising the provision of that service.
If the person used the transmitter (or transmitters) concerned to transmit datacasting services in digital mode, section 6 of the Imposition Act imposes a charge on the transmitter licence in respect of the financial year. For the purpose of subsection 7(1) of the Imposition Act, the 2015 Determination sets out how the amount of charge is calculated in respect of a financial year.
The 2015 Determination operates in conjunction with the Datacasting Charge (Collection) Determination 2015 made under subclauses 51(2) and 51(3) of Schedule 4 to the BSA, which sets out when the charge is due and the circumstances in which a penalty for late payment of the charge will apply.
Following review of the 2001 Determination, and consultation with external stakeholders (see below), the ACMA formed the view that the 2001 Determination was operating effectively and efficiently, and continued to form a necessary and useful part of the legislative framework. Accordingly, the ACMA made the 2015 Determination without any significant changes to the regulatory arrangements under the 2001 Determination, in order to preserve the ongoing effect of that instrument.
Operation
The 2015 Determination largely replicates the 2001 Determination by setting out the formula for calculating the amount of charge imposed on a transmitter licence in respect of a financial year. The formula is unchanged, however, the ACMA has made some minor stylistic and drafting changes to improve the readability of the instrument and remove redundant information.
Details of the Determination are set out in Attachment A.
Public 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.
The ACMA consulted publicly between 22 October 2014 and 3 December 2014 by publishing a consultation paper on its website. The ACMA also contacted stakeholders by email about the proposal on 22 October 2014. The consultation paper explained the sunsetting process and the ACMA’s preliminary view that the existing arrangements remain relevant and should be continued in any replacement determination without significant changes. Interested parties were invited to comment.
No submissions were received during the consultation period.
Regulation Impact Statement
The ACMA determined that the existing instrument was operating efficiently and effectively, and should be remade without any significant changes. The Office of Best Practice Regulation (OBPR) has determined that the regulatory change is minor or machinery in nature and has verified that no Regulation Impact Statement is required. The OBPR reference number is 17280.
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 LIA applies to cause a statement of compatibility to be prepared in respect of that legislative instrument.
This statement has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
For the purposes of subsection 7(1) of the Imposition Act, the 2015 Determination sets out how the amount of datacasting charge is calculated for a licensee in respect of a financial year. The 2015 Determination replaces the 2001 Determination which is due to be automatically repealed on 1 April 2015.
The ACMA has considered whether the 2015 Determination engages any applicable human rights or freedoms and has formed the view that it does not. The 2015 Determination does not raise any human rights issues and 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.
Attachment A
DETAILS OF THE Datacasting Charge (Amount) Determination 2015
Section 1 – Name of Determination
Section 1 provides that the name of the Determination is the Datacasting Charge (Amount) Determination 2015.
Section 2 – Commencement
Section 2 states that the Determination commences on 1 April 2015.
Section 3 – Revocation
Section 3 has the effect of revoking the Datacasting Charge (Amount) Determination 2001.
Section 4 – Definitions
Section 4 sets out some key terms used in the Determination. The definitions are the same as those used in the Datacasting Charge (Imposition Act) 1998 other than the term “last charge calculation period” which refers to the Television Licence Fees Act 1964 (the Fees Act). The Fees Act defines a number of concepts which are necessary to identify in order to apply the formula in section 5.
Section 5 – Amount of charge
Section 5 sets out, for the purposes of subsection 7(1) of the Imposition Act, the formula for calculating the amount of charge in respect of a financial year.