Explanatory Statement
RADIOCOMMUNICATIONS (DURATION OF COMMUNITY TELEVISION TRANSMITTER LICENCES) DETERMINATION NO. 1 OF 2008
(Amendment No. 1 of 2013)
Issued by the authority of the Minister for Broadband, Communications and the Digital Economy
The effect of this Determination is that a transmitter licence issued under subsection 102(1) of the Radiocommunications Act 1992 (the Act), which is related to a CTV licence within the meaning of the Broadcasting Services Act 1992 (BSA), continues in force until 31 December 2014.
Background
In 2002, the Parliament amended the BSA to establish a new regulatory regime for community television broadcasters. Concurrent amendments were made to the Act in relation to the transmitter licences associated with “CTV licences” within the meaning of the BSA. Section 6 of the BSA defines “CTV licence” to mean “a community broadcasting licence under Part 6 to provide a service that provides television programs but is not targeted, to a significant extent, to one or more remote Indigenous communities”.
In particular, subsection 103(4A) was inserted into the Act. Paragraph 103(4A)(a) provides that, subject to paragraphs 103(4A)(b) and (c), a transmitter licence issued under subsection 102(1) of the Act continues in force while the related broadcasting licence referred to in that subsection remains in force. Paragraph 103(4A)(c) provides that if the related broadcasting licence is a CTV licence within the meaning of the BSA, the transmitter licence issued under subsection 102(1) of the Act does not have effect after the later of 31 December 2006 or the date specified in a written determination by the Minister.
Paragraph 103(4A)(c) was inserted to ensure that the spectrum used for community television broadcasting could continue to be used for analog community television transmission until at least 31 December 2006, which at the time, was the end date of the moratorium for the allocation of new commercial licences specified in the then section 28 of the BSA. The Explanatory Memorandum to the Broadcasting Legislation Amendment Bill (No.2) 2002 noted that the proposed amendments to the Act give the Government the ability to extend the date of expiration of transmitter licences related to CTV licences in case it should decide, closer to the time, that analog community television should continue. The end date was extended from 31 December 2006 to 31 December 2008 by the Radiocommunications (Duration of CTV Transmitter Licences) Determination (No.1) 2006 and extended again to 31 December 2013 by the Radiocommunications (Duration of Community Television Transmitters Licences) Determination No. 1 of 2008. Both determinations were made under subparagraph 103(4A)(c)(ii) of the Act.
The Australian Government is still considering appropriate long term arrangements for the digital carriage of community television services, so it is essential that the expiry date for CTV transmitter licences be extended again in order to ensure that those community television broadcasters can continue to operate using the digital spectrum intended for the sixth channel, also known as Channel A until at least 31 December 2014.
Regulation impact
The Prime Minister granted an exemption from the RIS requirements for this proposal on 11 August 2012. A post-implementation review will commence within two years from the date the proposal is implemented.
The Office of Best Practice Regulation (OBPR) confirmed on 8 April 2013 that these amendments are covered by the Prime Minister’s exemption for convergence review reforms of 11 August 2012. OBPR exemption for this proposal is ID 14908.
Notes on Clauses
Clause 1 provides the citation of the Determination.
Clause 2 provides that the Determination will commence on the day after it is registered on the Federal Register of Legislative Instruments.
Clause 3 specifies that Schedule 1 amends the Radiocommunications (Duration of Community Television Transmitter Licences) Determination No. 1 of 2008 and varies the end date for CTV transmitter licences from 31 December 2013 to 31 December 2014.
Compatibility with human rights and freedoms
The Determination 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
The Determination extends the end date of a CTV transmitter licence so that CTV licensees can use spectrum intended for the sixth channel for a further 12 months.
The Radiocommunications (Duration of Community Television Transmitters Licences) Determination No 1 of 2008 requires amendment to extend the right of community television operators to use the Channel A spectrum from 31 December 2013 until 31 December 2014.
Human rights implications
Australia is a signatory to the International Covenant on Civil and Political Rights (the ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These two conventions are listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Article 19(2) of the ICCPR protects freedom of expression, including the right to seek, receive and impart information and ideas of all kinds, and the means of their dissemination. Article 15(1) of the ICESCR protects the right of everyone to take part in cultural life.
The Determination extends the end date of CTV transmitter licences for a further 12 months. By continuing to provide CTV licensees with access to spectrum so that they can broadcast community television to viewers in Brisbane, Melbourne and Sydney this advances the audience’s freedom of expression. The United Nations Human Rights Committee has recognised the importance of ensuring a diversity of sources and views in the media to protect freedom of expression. This Determination promotes the expression of Australian perspectives through community television broadcasting services and therefore promotes a diversity of views in the media. Based on this, this instrument promotes the right of Australians to freedom of expression, consistent with Article 19(2) of the ICESCR.
The United Nations Committee on Economic, Social and Cultural Rights has noted that the right to take part in cultural life includes the right of everyone to share cultural knowledge and expressions with others and to know and understand his or her own culture. By continuing to provide CTV licensees with access to spectrum in order to continue broadcasting this promotes greater access by Australians to community television content that reflects a sense of Australian culture. This Determination therefore promotes the right of Australians to take part in a distinctly Australian cultural life, consistent with Article 15(1)(a) of the ICESCR.
This Determination positively engages the rights protected by Article 15(1) of the ICESCR and Article 19(2) of the ICCPR as it will enhance the viewing experience for Australian audiences.
Conclusion
This Determination 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. This Determination is compatible with human rights because it advances the rights to freedom of expression and participation in cultural life.
Consultation
The Department of Broadband, Communications and the Digital Economy (DBCDE) consulted the Australian Communications and Media Authority (ACMA) on the Minister’s behalf. The ACMA provided advice about the timing for the proposed amendment, having regard to the channel allotments in the Television Licence Area Plans.
The Australian Community Television Alliance or CTV licencees were not consulted because this amending instrument does not substantially alter the existing arrangements ahead of the government’s consideration of the longer-term future for community television broadcasters following the outcomes of the ACMA review into the possible longer-term uses for Channel A.