EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Broadcasting Services Act 1992
Variation to Licence Area Plan – Darwin Radio – 2019 (No.1)
Authority
The Australian Communications and Media Authority (the ACMA) has made the Variation to Licence Area Plan – Darwin Radio – 2019 (No.1) (the instrument) under subsection 26(2) of the Broadcasting Services Act 1992 (the Act).
The ACMA may, by legislative instrument, vary licence area plans (LAPs) under subsection 26(2) of the Act.
Purpose and operation of the instrument
LAPs determine the number and characteristics, including technical specifications, of broadcasting services that are to be made available in particular areas of Australia with the use of the broadcasting services bands.
The Australian Broadcasting Authority determined the Licence Area Plan – Darwin Area (Radio) – July 1995 (F2005B00950) (Darwin LAP) on 17 October 1995.
The instrument varies the Darwin LAP by inserting one new attachment into the LAP which makes spectrum available for an FM transmitter for the 8HOT AM commercial radio broadcasting service, enabling conversion of the service from AM to FM. It also makes changes to existing attachments. The attachments contain the technical specifications for transmitters that are used to provide broadcasting services in the Darwin area.
Further details regarding the instrument are set out in Attachment A.
The instrument is a disallowable legislative instrument for the purposes of the Legislation Act 2003 (the LA).
Document incorporated by reference
The instrument varies the Darwin LAP to incorporate the Broadcasting Services (Technical Planning) Guidelines 2017, as in force from time to time.
The Broadcasting Services (Technical Planning) Guidelines 2017 may be accessed from the Federal Register of Legislation: www.legislation.gov.au.
Consultation
Before the instrument was made, the ACMA was satisfied that consultation was undertaken to the extent appropriate and reasonably practicable, in accordance with section 17 of the LA.
Before making the decision to vary the Darwin LAP, on 31 January 2019, the ACMA published a consultation paper which provided the background on the proposal on the ACMA website. The ACMA also announced the release of the paper via social media and used social media platforms to engage with residents in the relevant radio licence area in relation to the proposed variations. Other stakeholders were separately notified about the release of the consultation paper: radio broadcasting licensees in Darwin RA1 and Katherine RA1 licence areas; licensees in adjacent radio licence areas; the peak bodies Commercial Radio Australia, Community Broadcasting Association of Australia and the Indigenous peak body Jawoyn Association; and the Katherine based Kalano Association. Civic bodies including local councils and libraries were also notified. Local state and federal politicians were contacted directly about the proposals.
The consultation period ended on 28 February 2019. The ACMA did not receive any submissions. However, social media engagement resulted in 227 ‘clicks’ through to the ACMA’s website and generated a discussion among nine members of the public about possible loss of coverage. The ACMA took those comments into account in making the instrument.
Regulatory impact assessment
The Office of Best Practice Regulation (OBPR), in a guidance note entitled “Carve-outs” (available at: https://www.dpmc.gov.au/resource-centre/regulation/carve-outs-guidance-note), has established a carve-out for variations to LAPs where those variations are unlikely to have more than a minor regulatory impact (OBPR reference number: 13301). A carve-out is a standing agreement between OBPR and a government agency which sets aside the requirement for a preliminary assessment to be sent to OBPR for certain types of proposed regulatory change. The ACMA has formed the opinion that the instrument falls within the terms of the carve-out.
Statement of compatibility with human rights
Subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the rule-maker in relation to a legislative instrument to which section 42 (disallowance) of the LA applies to cause a statement of compatibility with human rights to be prepared in respect of that legislative instrument.
The statement of compatibility set out below has been prepared to meet that requirement.
Overview of the instrument
The instrument varies the Licence Area Plan – Darwin Area (Radio) – July 1999. The instrument makes radiofrequency spectrum available for, and changes existing characteristics including technical specifications of, certain radio broadcasting services in the Darwin and Katherine RA1 licence areas.
Human rights implications
The ACMA has assessed whether the instrument is compatible with human rights, being the rights and freedoms recognised or declared by the international instruments listed in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 as they apply to Australia.
The ACMA has also assessed the impact on the local Indigenous communities in the context of Article 27 of the International Convention on Civil and Political Rights. Article 27 provides that “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.” There is a possibility that some indigenous communities in the Katherine region may potentially suffer some radio coverage loss of the 8HOT commercial service. as part of the changes to the radio services. These radio services provide general commercial content sourced out of Darwin. The communities will continue to have access to a range of indigenous radio and television broadcasting services through the VAST satellite system. Therefore the ACMA considers article 27 has not been infringed.
Having considered the likely impact of the instrument and the nature of the applicable rights and freedoms, the ACMA has formed the view that the instrument does not engage any of those rights or freedoms.
Conclusion
The instrument is compatible with human rights as it does not raise any human rights issues.
Attachment A
Notes to the Variation to Licence Area Plan – Darwin Radio – 2019 (No.1)
Section 1 Name
This section provides for the instrument to be cited as the Variation to Licence Area Plan – Darwin Radio – 2019 (No.1).
Section 2 Commencement
This section provides for the instrument to commence at the start of the day after it is registered on the Federal Register of Legislation.
Section 3 Authority
This section identifies the provision of the Act that authorises the making of the instrument, namely subsection 26(2) of the Act.
Section 4 Amendments
This section varies the Darwin LAP as set out in paragraphs 4(a) to 4(zn).
Paragraph 4(a)
Paragraph 4(a) omits paragraph (6) at page 3 of the Darwin LAP and replaces it with a new paragraph (6).
Paragraph 4(b)
Paragraph 4(b) deletes wording from page 3 of the Darwin LAP about when the LAP was made.
Paragraph 4(c)
This paragraph makes a change to Schedule Two in the Darwin LAP to insert a reference to new Attachment 2.3A discussed below under paragraph 4(g).
Paragraphs 4(d), 4(z) and 4(zg)
These paragraphs amend Attachments 2.1, 3.1 and 5.1 that describe the Darwin RA1, Darwin RA1 and Katherine RA1 licence areas respectively. The same changes are made to each attachment to ensure consistency across licence area descriptions. In each case, the licence area identification number is removed as this is considered no longer necessary.
Paragraph 4(e)
This paragraph relates to Attachment 2.2 which is the technical specification for the 8HOT commercial radio broadcasting service that serves Darwin. The paragraph makes a change to the ‘Nominal location’ to provide clarity about the address. It also makes numbering changes in the special conditions following the making of the Broadcasting Services (Technical Planning) Guidelines 2017.
Paragraphs 4(f) and 4(g) and Schedule 1
These provisions relate to the AM-FM conversion by the commercial radio broadcasting service 8HOT. Paragraph 4(f) amends Attachment 2.3 which is the technical specification for the service’s AM transmitter by making changes to the ‘Nominal location’ to provide clarity about the address. Further, a special condition about maximum cymomotive force is added to the attachment. Additional details are added about the continued operation of the AM transmitter for a finite period once FM transmission commences.
Paragraph 4(g) inserts Attachment 2.3A into the Darwin LAP. This is the new technical specification for the FM transmitter for the 8HOT service.
Paragraph 4(h)
This paragraph makes a change to the ‘Nominal location’ of Attachment 2.4.
Paragraph 4(i)
Paragraph 4(i) makes two small changes to Attachment 2.5. The paragraph provides a small wording change to the ‘Nominal location’ and changes the maximum antenna height to align with the maximum antenna height in new Attachment 2.3A discussed above.
Paragraph 4(j)
This paragraph makes small changes to Attachments 2.6 and 2.7. In each case, the ‘Nominal location’ and ‘Australian Map Grid’ references are amended.
Paragraph 4(k)
Paragraph 4(k) corrects a small numerical error in the technical specification number in Attachment 2.8.
Paragraph 4(l)
This paragraph makes changes to Attachments 2.8 and 2.9. In each case, the ‘Nominal location’ and ‘Australian Map Grid’ references are amended.
Paragraph 4(m)
Paragraph 4(m) omits wording from the ‘Nominal location’ in Attachment 2.10. It also inserts a special condition about maximum cymomotive force.
Paragraph 4(n)
This paragraph makes the same change to the ‘Nominal location’ in Attachments 2.11-2.14 and 2.17.
Paragraph 4(o)
Paragraph 4(o) amends Attachment 2.15 by amending the ‘Nominal location’ and ‘Australian Map Grid’ references. It also inserts a special condition about maximum cymomotive force.
Paragraphs 4(p)
This paragraph changes the ‘Nominal location’ in the description of the transmitter site in Attachment 2.16.
Paragraph 4(q)
Paragraph 4(q) amends Attachment 2.18 to omit wording in the ‘Nominal location’. It also changes the special condition to an advisory note of similar wording which is about the coverage area of the transmission. The paragraph also inserts a special condition about maximum cymomotive force.
Paragraphs 4(r) and 4(s)
These paragraphs amend Attachments 2.19 and 2.20. In each case, the special condition in the attachment is changed to an advisory note of similar wording, dealing with the coverage area of the transmission.
Paragraph 4(t)
This paragraph changes the ‘Nominal location’ specified in Attachment 2.21 and changes the special condition in the attachment to an advisory note of similar wording. The note is about the coverage area of the transmission.
Paragraphs 4(u) and 4(v)
Paragraphs 4(v) and 4(w) change the reference to special conditions in Attachments 2.22 and 2.23 to be ‘advisory notes’.
Paragraph 4(w)
This paragraph changes the ‘Nominal location’ in the description of the transmitter site in Attachment 2.24.
Paragraph 4(x)
The paragraph changes the ‘Nominal location’ in Attachment 2.25 to reflect the transmitter location at Shoal Bay.
Paragraph 4(y)
This paragraph makes changes to the nominal location in Attachments 2.26 and 2.27 to better describe the transmitter location.
Paragraph 4(za)
Paragraph 4(za) makes changes to Attachments 3.2 and 3.3 to better describe the nominal locations in those Attachments
Paragraph 4(zb)
Paragraph 4(zb) makes two changes to Attachment 4.1. The licence area identification number is removed and a small formatting change is made.
Paragraph 4(zc)
This paragraph makes a number of changes to Attachment 4.2. The changes are intended to reflect the actual conditions under which the transmitter is operating. There are four changes to the specification which are: a change to the ‘Nominal location’ and ‘Australian Map Grid’ reference; a change in the maximum antenna; a change to the ‘Output Radiation Pattern’ table; and an omission of wording concerning field strength, effective radiated power and minimum level of service.
Paragraphs 4(zd) and 4(ze)
These paragraphs make changes to the ‘Nominal location’ and ‘Australian Map Grid’ references for Attachments 4.3 and 4.4.
Paragraph 4(zf)
Paragraph 4(zf) makes a small numerical change to the ‘Nominal location’ in Attachment 4.5 to better describe the transmitter location.
Paragraph 4(zh)
This paragraph amends Attachment 5.2. The paragraph makes a change to the ‘Nominal location’ to better describe the location.
Paragraph 4(zi)
Paragraph 4(zi) makes a change to Attachment 5.3. The paragraph makes a change to the ‘Nominal location’ and the ‘Australian Map Grid’ references to better describe the transmitter location.
Paragraphs 4(zj)
This paragraph makes a change to the ‘Polarisation’ of the antenna in Attachments 5.3 and 5.4.
Paragraphs 4(zk), 4(zl) and 4(zm)
These paragraphs correct typographical errors affecting a number of Attachments.
Paragraph 4(zn)
This paragraph makes the same change to the following attachments: 2.2, 2.4, 2.11-2.14, 2.17, 2.25 3.2 and 3.3. The change is to the number of a guideline which is a consequence of the making of the Broadcasting Services (Technical Planning) Guidelines 2017 .