Explanatory Statement
Radiocommunications Act 1992
Radiocommunications (Duration of Community Television Transmitter Licences) Determination (No. 1) 2008 (Amendment No. 1 of 2017)
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 2017) (the Amending Determination) amends the Radiocommunications (Duration of Community Television Transmitter Licences) Determination (No. 1) 2008 (the Principal Determination).
There are currently two 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, one of these transmitter licences will continue in force until 31 December 2017. This represents a six month extension from the current specified end date of 30 June 2017. This change is required in order to ensure that the relevant community television broadcaster can continue to access spectrum intended for the sixth channel until 31 December 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 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. One licensee is in Melbourne and currently operates a terrestrial service. The other licensee is in Brisbane and ceased operating its terrestrial service on 28 February 2017. Under the Principal Determination, the related transmitter licences issued under subsection 102(1) of the Radcomms Act remain in force until 30 June 2017. This Amending Determination will provide the community television broadcaster in Melbourne with an additional six months of terrestrial broadcasting, which will allow more time for the broadcaster to manage its transition to exclusively online delivery. This transition may involve strategies such as the broadcaster reconfiguring its business model, programming methods and production practices to better suit the online environment. The broadcaster will also need to take steps to ensure that it can maintain audience members and sponsors during the migration to a new transmission format. This Amending Determination will also remove reference to the transmitter licence that is in force in Brisbane until 30 June 2017. As the terrestrial service associated with this licence is no longer operating, the licence is no longer required and lapses on 30 June 2017.
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 six months, including the making of this determination.
Regulation Impact Statement
The Office of Best Practice Regulation (OBPR) confirmed on 26 June 2017 that no Regulation Impact Statement was required for this amendment. The OBPR regulation impact statement exemption for this proposal is ID: 22524.
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 2017)
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 to the Amending Determination.
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 that has the effect of specifying a new date for the purposes of subparagraph 103(4A)(c)(ii) of the Radcomms Act, being 31 December 2017 for the transmitter licences (number 1922136 and 1922137) related to the CTV licences in Melbourne. This amendment gives effect to the six month extension for those two transmitter licences.
The replacement section 4 does not contain a reference to the transmitter licence related to the CTV licence in Brisbane, as the end date for that transmitter licence was 30 June 2017.
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 2017)
The Radiocommunications (Duration of Community Television Transmitters Licences) Determination (No. 1) of 2008 (Amendment No.1 of 2017) (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 30 June 2017 to 31 December 2017. This will allow the related community television broadcaster to continue to use spectrum intended for the sixth channel until 31 December 2017, so that the broadcaster can complete the transition to exclusive online delivery of its services. The Amending Determination also removes reference to a transmitter licence that is no longer operating.
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 two transmitter licences by six months. By continuing to provide access to spectrum so that the related community television broadcaster can broadcast community television to viewers in Melbourne, this advances its 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 will transition to online delivery after 31 December 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 the community television broadcaster in Melbourne with access to spectrum until 31 December 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.