Explanatory Statement
Radiocommunications Act 1992
Radiocommunications (Duration of Community Television Transmitter Licences) Determination (No. 1) 2008 (Amendment No. 1 of 2015)
Issued by the authority of the Minister for Communications
Authority
Subparagraph 103(4A)(c)(ii) of the Radiocommunications Act 1992 (the Radcomms Act) enables the Minister, by written determination, to specify a date after which a transmitter licence issued under subsection 102(1) of the Radcomms Act for a related CTV licence issued under the Broadcasting Services Act 1992 (BSA) will no longer have effect. A determination under subparagraph 103(4A)(c)(ii) is a legislative instrument (subsection 103(4B) of the Radcomms Act).
Purpose
The Radiocommunications (Duration of Community Television Transmitters Licences) Determination (No. 1) of 2008 (Amendment No.1 of 2015) (the Amending Determination) amends the Radiocommunications (Duration of Community Television Transmitter Licences) Determination (No. 1) 2008 (the Principal Determination).
There are currently four transmitter licences issued under subsection 102(1) of the Radcomms Act, which are related to CTV licences within the meaning of the BSA. By operation of the Amending Determination, three of the transmitter licences will continue in force until 31 December 2016. This represents a one year extension from the current end date of 31 December 2015. This change is required in order to ensure that the relevant community television broadcasters can continue to access spectrum intended for the sixth channel until 31 December 2016. The remaining transmitter licence will remain in force until 31 December 2015, as currently determined.
Background
The BSA 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 of the BSA).
Paragraph 103(4A)(a) of the Radcomms Act provides that, subject to paragraphs 103(4A)(b) and (c), a transmitter licence issued under subsection 102(1) 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 Radcomms 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 BSA. 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.
There are currently three community television broadcasters licenced under Part 6 of the BSA, providing services in Brisbane, Melbourne and Sydney. Under the Principal Determination, the related transmitter licences issued under subsection 102(1) of the Radcomms Act remain in force until 31 December 2015. This Amending Determination will provide community television broadcasters in Brisbane and Melbourne 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. The same extension is not necessary for the CTV broadcaster in Sydney, as it will be ready to transition to exclusive online delivery after 31 December 2015.
Consultation
The Department of Communications and the Arts consulted with the Australian Communications and Media Authority (ACMA) in relation to implementing the Minister’s decision to extend access to spectrum for a further 12 months, including the making of this determination. The Minister for Communications consulted with the affected CTV broadcasters regarding the extension of certain CTV transmitter licences until 31 December 2016.
Regulation Impact Statement
The Office of Best Practice Regulation (OBPR) confirmed on 18 November 2015 that no Regulation Impact Statement was required for this amendment. OBPR regulation impact statement exemption for this proposal is ID: 20035.
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 2015)
Clause 1 - Name
Clause 1 provides the citation of the Amending Determination.
Clause 2 - Commencement
Clause 2 provides that the Amending Determination will commence on the day after it is registered on the Federal Register of Legislative Instruments.
Clause 3 - Amendments
Clause 3 provides that the Principal Determination is amended as set out in the Schedule.
Schedule – Amendments
Item 1 of the Schedule to the Amending Determination repeals section 4 of the Principal Determination and substitutes with a new section 4. New section 4 specified two dates for the purposes of subparagraph 103(4A)(c)(ii) of the Radcomms Act:
- 31 December 2015 for the transmitter licence related to the CTV licence in Sydney (see paragraph 4(a)). This maintains the current end date for that transmitter licence;
- 31 December 2016 for the transmitter licences related to the CTV licences in Brisbane and Melbourne (see paragraph 4(b)). This gives effect to the one year extension for those licences.
The relevant transmitter licences are identified by reference to their transmitter licence numbers:
- transmitter licence number 1921845 for Sydney;
- transmitter licence number 1922138 for Brisbane;
- transmitter licence numbers 1922136 and 1922137 for Melbourne.
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 2015)
The Radiocommunications (Duration of Community Television Transmitters Licences) Determination (No. 1) of 2008 (Amendment No.1 of 2015) (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 amends the Radiocommunications (Duration of Community Television Transmitters Licences) Determination (No. 1) of 2008 (the Principal Determination) to extend the end date of specified transmitter licences issued under subsection 102(1) of the Radiocommunications Act 1992 by one year, from 31 December 2015 to 31 December 2016. This will allow the related community television broadcasters to continue to use spectrum intended for the sixth channel until 31 December 2016, so that those broadcasters can complete their transition to exclusive online delivery of their services. The remaining transmitter licence will remain in force until 31 December 2015, as currently determined, as the related community television broadcaster will be ready to transition to exclusive online delivery after that time.
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 certain transmitter licences by one year. By continuing to provide access to spectrum so that the related community television broadcasters can broadcast community television to viewers in Brisbane and Melbourne, this advances their audiences’ 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. The community television broadcaster in Sydney will transition to online delivery after 31 December 2015, with audiences continuing to have access to their services through a different platform (online).
Based on this, the Amending Determination promotes the right of Australians to freedom of expression, consistent with Article 19(2) of the ICCPR.
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 community television broadcasters in Brisbane and Melbourne 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. Viewers in Sydney will be able to continue to access to this content through a different platform (online) and new viewers in other locations in Australia will now have access to its services. Therefore, the Amending Determination promotes the right of Australians to take part in a distinctly Australian cultural life, consistent with Article 15(1)(a) of the ICESCR.
This Amending Determination positively engages the rights protected by Article 19(2) of the ICCPR and Article 15(1) of the ICESCR and 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.