Legislation (Deferral of Sunsetting—Broadcasting Services (Events) Notice (No. 1)) Certificate 2021

 Legislation (Deferral of Sunsetting—Broadcasting Services (Events) Notice (No. 1)) Certificate 2021

EXPLANATORY STATEMENT

INTRODUCTION

The Legislation (Deferral of Sunsetting—Broadcasting Services (Events) Notice (No. 1)) Certificate 2021 (the Certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003. It is a legislative instrument for the purposes of the Legislation Act and must be registered on the Federal Register of Legislation. The Certificate is subject to the disallowance provisions of the Legislation Act as the deferred sunsetting day specified in the Certificate is after the first anniversary of the originally scheduled sunsetting day, which means that subsection 51(4) of that Act (which provides an exemption from disallowance for deferrals of 12 months or less) does not apply.

OUTLINE

Sunsetting is the automatic repeal of legislative instruments after a fixed period. The Australian Government’s sunsetting framework is established under Part 4 of Chapter 3 of the Legislation Act. The purpose of the sunsetting framework is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed.

Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration, unless it was registered on 1 January 2005. Legislative instruments registered on 1 January 2005 are subject to the staggered sunsetting timetable set out in subsection 50(2) of the Legislation Act.

Under paragraph 51(1)(c) of the Legislation Act the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of either six, 12, 18 or 24 months. In this instance, the Assistant Minister to the Attorney-General is performing the functions of the Attorney-General under the Legislation Act. The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.

This allows instruments to continue to be in force for a further but limited period of time when they would otherwise sunset. This removes the administrative burden of remaking instruments which would have a limited duration prior to their repeal and potential replacement, or where circumstances prevent the making of replacement instruments prior to the sunsetting day.

The Certificate defers the sunsetting date of the Broadcasting Services (Events) Notice (No. 1) 2010 (the anti-siphoning list) by 24 months from 1 April 2021 to 1 April 2023.

PROCESS BEFORE CERTIFICATE WAS MADE

Regulatory impact analysis

Certificates of deferral of sunsetting are machinery of government instruments, and are therefore not subject to the regulatory impact assessment requirements set out by the Office of Best Practice Regulation (OBPR). The OBPR reference for this standing exemption is ID19633.

Consultation before making

Before the Certificate was issued, the Assistant Minister to the Attorney-General considered the general obligation to consult imposed by section 17 of the Legislation Act.

The Minister for Communications, Urban Infrastructure, Cities and the Arts, the Hon Paul Fletcher MP, is the relevant rule-maker for the instrument for the purposes of section 6 of the Legislation Act. The Minister prepared an application to the Attorney-General setting out the reasons in support of issuing the Certificate. In this instance, the application was considered by the Assistant Minister to the Attorney-General.

Certificates of deferral are machinery in nature and enable legislative instruments that would otherwise sunset to remain in force for a further, but strictly limited, period of time. Deferrals are most commonly used to enable an effective review of whether the deferred instrument continues to be fit for purpose taking into account anticipate policy or legislative changes.

The anti-siphoning scheme was established in 1992 to lower the risk of subscription television broadcasters obtaining exclusive rights to televise events of national importance and cultural significance that had traditionally been televised to the public by free-to-air television broadcasters. The Broadcasting Services Act 1992 (BSA) provides that the Minister for Communications, Urban Infrastructure, Cities and the Arts may give notice, by legislative instrument, specifying an event or the kind of events the televising of which should, in the Minister’s opinion, be available free to the general public. The anti-siphoning list is the legislative instrument made for these purposes.

The Government is currently seeking views on the measures outlined in the Media Reform Green Paper: Modernising television regulation in Australia (the Green Paper) which was released on 27 November 2020. Although the Government is currently focused on reforming the television broadcasting framework, it is expected that the anti-siphoning list, and the broader anti-siphoning scheme, will be reviewed before 1 April 2023. A 24 month deferral of the sunsetting day will avoid the need to remake the anti-siphoning list for a short period of time before any broader reform is considered and the instrument is remade. As such, the Certificate is consistent with the policy intent of the sunsetting regime and does not significantly alter existing arrangements.

As the deferral certificate is machinery in nature, further consultation in relation to the deferral was considered unnecessary. This will minimise the administrative burden on stakeholders associated with consultation on the deferral. Any replacement instrument will be subject to parliamentary oversight including whether adequate consultation occurred with persons likely to be affected by the replacement instrument.

Statutory preconditions relevant to the Certificate

If the statutory conditions in section 51 of the Legislation Act are met, an instrument’s sunsetting day can be deferred for six, 12, 18 or 24 months by means of a certificate made under that section. In terms of process, the Legislation Act requires:

(a)    the responsible rule-maker to apply to the Attorney-General in writing, and

(b)    the Attorney-General to be satisfied that:

(i)     the instrument would (apart from the operation of the sunsetting provisions) be likely to cease to be in force within 24 months after its sunsetting day

(ii)   the proposed replacement instrument will not be able to be completed before the sunsetting day for reasons that the rule-maker could not have foreseen and avoided

(iii) the dissolution of expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make a replacement  instrument before a new government is formed, or

(iv) the Attorney-General has approved Part 4 of Chapter 3 of the Legislation Act (Sunsetting) not applying to that instrument, and

(c)    the Attorney-General to issue a certificate. The explanatory statement for the certificate must include a statement of reasons for the issue of the certificate.

The rule-maker for the instrument, the Minister for Communications, Urban Infrastructure, Cities and the Arts, the Hon Paul Fletcher MP, provided a written application to the Attorney‑General seeking a deferral of sunsetting for the instrument. In this instance, the application was considered by the Assistant Minister to the Attorney-General. On the basis of the information contained in the statement of reasons below, the Assistant Minister to the Attorney-General is satisfied that the instrument would, apart from the operation of Part 4 of Chapter 3 of the Legislation Act, be likely to cease to be in force within 24 months after its sunsetting day. As such, the criterion in subparagraph 51(1)(b)(i) of the Legislation Act is met.

Statement of Reasons for issuing of the Certificate

For the purposes of subsection 51(5) of the Legislation Act this section sets out the statement of the reasons for issuing the Certificate.

The anti-siphoning scheme was established in 1992 to lower the risk of subscription television broadcasters obtaining exclusive rights to televise events of national importance and cultural significance that had traditionally been televised to the public by free-to-air television broadcasters.

The regulatory framework for the anti-siphoning scheme is set out in the Broadcasting Services Act 1992 (BSA). The BSA provides that the Minister for Communications, Urban Infrastructure, Cities and the Arts may give notice, by legislative instrument, specifying an event or the kind of events the televising of which should, in the Minister’s opinion, be available free to the general public. The anti-siphoning list is the legislative instrument made for these purposes. To date, all events included on the list have been sporting events. Events are taken to be removed from the anti-siphoning list within a period specified in the BSA unless the Minister intervenes to retain an event on the list.

Subscription television broadcasters are subject to a licence condition preventing them from acquiring the right to televise an event included on the anti-siphoning list until a relevant free-to-air broadcaster or broadcasters (a national broadcaster or commercial television broadcasting licensees that reach more than 50 per cent of the Australian population) has or have acquired the right to televise the event on their service(s).

On 27 November 2020, the Government released the Media Reform Green Paper: Modernising television regulation in Australia (the Green Paper) for consultation. The Green Paper sets out several proposed reforms to support the television broadcasting sector and enhance the range and quality of services and content available to all Australians. The Government is currently seeking views on the measures outlined in the Green Paper, with the consultation period ending on 23 May 2021.

Although the Government is currently focused on reforming the television broadcasting framework, it is expected that the anti-siphoning list, and the broader anti-siphoning scheme, will be reviewed before 1 April 2023. A 24 month deferral of the sunsetting day will avoid the need to remake the anti-siphoning list for a short period of time before any broader reform is considered. As such, deferral of the sunsetting date of the instrument is consistent with the policy intent of the sunsetting regime, that legislative instruments should be kept up to date and only remain in force so long as they are needed. 

More information

Further details on the provisions of the Certificate are provided in Attachment A.

The instrument which is subject to the Certificate, and which will now sunset at a later day as specified in the Certificate, is available on the Federal Register of Legislation.

Further information may be requested from the Attorney-General’s Department about the operation of the Certificate, and from the Department of Infrastructure, Transport, Regional Development and Communications about the instrument.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The Legislation (Deferral of Sunsetting—Broadcasting Services (Events) Notice (No. 1)) Certificate 2021 (the Certificate) is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Human Rights Act).

Overview of the Certificate

This Certificate is made under paragraph 51(1)(c) of the Legislation Act 2003. Under that paragraph the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of either six, 12, 18 or 24 months. In this instance, the Assistant Minister to the Attorney-General is performing the functions of the Attorney-General under the Legislation Act. The instrument will then be repealed on the day specified in the Certificate instead of the scheduled sunsetting day. The instrument specified in this Certificate is the Broadcasting Services (Events) Notice (No. 1) 2010 (the anti-siphoning list).

It is expected that the anti-siphoning list, and the broader anti-siphoning scheme, will be reviewed before 1 April 2023. A 24 month deferral of the sunsetting day will avoid the need to remake the anti-siphoning list for a short period of time before any broader reform is considered and the instrument is remade. The instrument would be likely to cease to be in force within 24 months of its scheduled sunsetting day. The Certificate allows the instrument to continue to be in force for a further but limited period of time when it would otherwise sunset. This removes the administrative burden of remaking an instrument which would have a limited duration prior to its repeal and potential replacement, or where circumstances prevent the making of a replacement instrument prior to the sunsetting day.  

Human rights implications

The Statement of Compatibility for a certificate of deferral of sunsetting focuses on the effect of the deferral instrument, rather than the substantive effect of continuing the instrument that has been deferred.

Before issuing the Certificate, the Assistant Minister to the Attorney-General was satisfied that the instrument would, apart from the operation of the sunsetting provisions, be likely to cease to be in force within 24 months of its sunsetting day. Issuing a certificate of deferral therefore avoids the need to replace the instrument in its current form for a short period of time before it is expected to be repealed and possibly replaced.

Instruments that are replaced will be subject to parliamentary scrutiny and oversight through the disallowance processes unless otherwise exempt. The human rights impact of the instrument will be assessed at that time, including through the requirement to prepare a further Statement of Compatibility with Human Rights.
 

Conclusion

This Certificate is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights Act by ensuring that any proposal to make a replacement instrument that unduly limits human rights and freedoms will be subject to parliamentary oversight and scrutiny.

ATTACHMENT A

NOTES ON THE CERTIFICATE

Section 1  Name

This section provides that the Certificate is named the Legislation (Deferral of Sunsetting—Broadcasting Services (Events) Notice (No. 1)) Certificate 2021. The Certificate may be cited by this name.

Section 2  Commencement

This section provides for the Certificate to commence on the day after it is registered.

Section 3  Authority

This section provides that the Certificate is made under paragraph 51(1)(c) of the Legislation Act.

Section 4  Deferral of sunsetting

This section provides that the Broadcasting Services (Events) Notice (No. 1) 2010, for which the sunsetting day is 1 April 2021, is repealed under section 51 of the Legislation Act 2003 on 1 April 2023.

Section 5  Repeal of the instrument

This section provides that the Certificate is repealed at the start of 2 April 2023.