Explanatory Statement
Radiocommunications Act 1992
Radiocommunications (Duration of Community Television Transmitter Licences) Determination (No. 1) 2008 (Amendment No. 1 of 2016)
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 2016) (the Amending Determination) amends the Radiocommunications (Duration of Community Television Transmitter Licences) Determination (No. 1) 2008 (the Principal Determination).
There are currently three 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, these transmitter licences will continue in force until 30 June 2017. This represents a six month extension from the current end date of 31 December 2016. 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 30 June 2017.
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 two community television broadcasters licenced under Part 6 of the BSA, providing services in Brisbane and Melbourne. Under the Principal Determination, the related transmitter licences issued under subsection 102(1) of the Radcomms Act remain in force until 31 December 2016. This Amending Determination will provide community television broadcasters in Brisbane and Melbourne with an additional six months 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. This Amending Determination will also remove a spent provision in relation to a transmitter licence that was in force until 31 December 2015. This date has now passed and the determination date is no longer required.
Consultation
The Department of Communications and the Arts, on behalf of the Communications Minister, 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 6 months, including the making of this determination.
Regulation Impact Statement
The Office of Best Practice Regulation (OBPR) confirmed on 6 December 2016 that no Regulation Impact Statement was required for this amendment. OBPR regulation impact statement exemption for this proposal is ID: 21606.
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 2016)
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 it is registered on the Federal Register of Legislation.
Clause 3 – Authority
Clause 4 provides that the Determination is made under subparagraph 103(4A)(c)(ii) of the Radiocommunications Act 1992.
Clause 4 - Amendments
Clause 4 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 it with a new section 4. The amendment to section 4 has the effect of specifying a new date for the purposes of subparagraph 103(4A)(c)(ii) of the Radcomms Act:
- 30 June 2017 for the transmitter licences related to the CTV licences in Brisbane and Melbourne (see paragraph 4(b)). This gives effect to the six month extension for those licences.
The replacement section 4 no longer contains a reference to the transmitter licence related to the CTV licence in Sydney, as the end date for that transmitter licence has now passed.
The relevant transmitter licences are identified by reference to their transmitter licence numbers:
- transmitter licence number 1922138 for Brisbane; and
- 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 2016)
The Radiocommunications (Duration of Community Television Transmitters Licences) Determination (No. 1) of 2008 (Amendment No.1 of 2016) (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 six months, from 31 December 2016 to 30 June 2017. This will allow the related community television broadcasters to continue to use spectrum intended for the sixth channel until 30 June 2017, so that those broadcasters can complete their transition to exclusive online delivery of their services. The Amending Determination also removes a spent provision in relation to a transmitter licence end date that has now passed.
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 six months. 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. These community television broadcasters will transition to online delivery after 30 June 2017, 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 until 30 June 2017 in order to continue broadcasting, this promotes greater access by Australians to community television content that reflects a sense of Australian culture. After this time, viewers are expected to be able to continue to access this content through a different platform (online) and new viewers in other locations in Australia will 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 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.