Explanatory Statement
Radiocommunications Act 1992
Radiocommunications (Duration of Community Television Transmitter Licences) Determination (No.1) 2008 (Amendment No. 1 of 2014)
Issued by the authority of the Minister for Communications
Authority
Subparagraph 103(4A)(c)(ii) of the Radiocommunications Act 1992 (the Act) enables the Minister, by written instrument, to specify a date by which a Community Television Transmitter (CTV) licence will no longer have effect.
Purpose
The Radiocommunications (Duration of Community Television Transmitters Licences) Determination No. 1 of 2008 (Amendment No.1 of 2014) (the Amending Determination) amends the Radiocommunications (Duration of Community Television Transmitter Licences) Determination (No.1) 2008 (the Principal Determination) to extend the end date for CTV transmitter licences by one year, from 31 December 2014 to 31 December 2015.
By operation of the Amending Determination, a transmitter licence issued under subsection 102(1) of the Act, which is related to a CTV licence within the meaning of the Broadcasting Services Act 1992 (the Act), continues in force until 31 December 2015. These changes are required in order to ensure that those community television broadcasters can continue to spectrum intended for the sixth channel until 31 December 2015.
Background
The Act provides a regulatory regime for the licensing of community television broadcasters. A CTV licence is 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 (section 6, 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 Act, 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. These provisions were designed to ensure that the spectrum used for community television broadcasting could continue to be used for analogue 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 Act. As the Australian Government has been considering appropriate long term arrangements for digital CTV services, the statutory date of 31 December 2006 has been extended several times:
- to 31 December 2008 by the Radiocommunications (Duration of CTV Transmitter Licences) Determination (No.1) 2006;
- to 31 December 2013 by the Radiocommunications (Duration of Community Television Transmitters Licences) Determination No. 1 of 2008; and
- to 31 December 2014 by the Radiocommunications (Duration of Community Television Transmitters Licences) Determination No. 1 of 2008 (Amendment 1 of 2013.)
On 10 September 2014, the Minister for Communications announced that the Australian Government would allow community television broadcasters to continue using the sixth channel spectrum for an additional 12 months, until 31 December 2015. This Amending Determination gives effect to that announcement. This will provide community television broadcasters with an additional year of terrestrial broadcasting which will allow more time for them to manage their transition to exclusively online delivery. This transition may involve strategies such as broadcasters reconfiguring their business models, programming methods and production practices to better suit the online environment. Broadcasters will also need to take steps to ensure that they can maintain audience members and sponsors during the migration to a new transmission format.
Consultation
The Department of Communications consulted with the Australian Communications and Media Authority (ACMA) in relation to implementing the Government’s decision including the making of this determination. The Minister for Communications consulted with the Australian Community Television Alliance prior to making the announcement to extend the CTV transmitter licences until 31 December 2015.
Regulation Impact Statement
The Office of Best Practice Regulation (OBPR) confirmed on 3 November 2014 that no Regulation Impact Statement was required for this amendment. OBPR regulation impact statement exemption for this proposal is ID: 17856.
Other Details
Details of the Amending Determination are set out in Attachment 1.
Statement of Compatibility with Human Rights
A statement of compatibility with human rights for the purposes of Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is set out in Attachment 2.
Attachment 1
Details of the Radiocommunications (Duration of Community Television Transmitters Licences) Determination No. 1 of 2008 (Amendment No.1 of 2014)
Clause 1 - Name of Determination
Clause 1 provides the citation of the Determination.
Clause 2 - Commencement
Clause 2 provides that the Determination will commence on the day after it is registered on the Federal Register of Legislative Instruments.
Clause 3 - Variation
Clause 3 specifies that the Schedule 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 2014 to 31 December 2015.
Clause 4 - Expiry
Once the Amending Determination has come into effect, it will have fulfilled its purpose (i.e. amended section 4 of the Principal Determination). Therefore, the amending instrument itself can be removed from the Federal Register of Legislative Instruments. Accordingly, a self‑expiry provision has been included in the Amending Determination.
Schedule to the Determination
Item 1 of the Schedule amends section 4 of the Principal Determination by removing the date of ‘31 December 2014’ and substituting it with ’31 December 2015’. This is change is necessary to give effect to the further 12 month extension.
Attachment 2
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Radiocommunications (Duration of Community Television Transmitters Licences) Determination No. 1 of 2008 (Amendment No.1 of 2014)
The Amending 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 Amending Determination extends the end date of a Community Television (CTV) transmitter licence so that CTV licensees can continue to use spectrum intended for the sixth channel until 31 December 2015.
The Radiocommunications (Duration of Community Television Transmitters Licences) Determination No 1 of 2008, as in force, requires amendment to extend the right of community television operators to use the sixth channel spectrum from 31 December 2014 until 31 December 2015.
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 Amending 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 Amending 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. The effect of the extension will mean that the right of Australians to take part in a distinctly Australian cultural life, consistent with Article 15(1)(a) of the ICESCR is promoted.
This Amending 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 Amending 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, and also compatible with human rights because it advances the rights to freedom of expression and participation in cultural life.