EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Broadcasting Services Act 1992
Variation to Licence Area Plan – Mount Gambier Radio – 2022 (No. 1)
Authority
The Australian Communications and Media Authority (the ACMA) has made the Variation to Licence Area Plan – Mount Gambier Radio – 2022 (No. 1) (the instrument) under subsection 26(2) of the Broadcasting Services Act 1992 (the Act).
The ACMA may, by legislative instrument, vary a licence area plan (LAP) 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 – Mount Gambier Radio – December 2001 (F2005B00700) (Mount Gambier LAP) on 6 December 2001.
The instrument primarily varies the characteristics, including technical specifications, of radio broadcasting services in the Mount Gambier area of South Australia and Victoria. The main variations are to convert a commercial radio broadcasting service to the FM frequency band and to vary the technical specifications of another commercial radio broadcasting service.
The instrument also makes minor variations including updates to some transmitter site nominal locations and replacing Australian Map Grid References for transmitters with co-ordinates using the Geocentric Datum of Australia 1994 (GDA94).
A provision-by-provision description of the instrument is set out in the notes at Attachment A.
The instrument is a disallowable legislative instrument for the purposes of the Legislation Act 2003 (the LA).
Item 13 of the table at regulation 12 of the Legislation (Exemptions and Other Matters) Regulation 2015 provides that licence area plans are not subject to the sunsetting provisions in Part 4 of Chapter 3 of the LA. According to the explanatory statement to that regulation:
Instruments made under section 26 of the Broadcasting Services Act include licence area plans … These instruments provide for the planning of broadcasting services. They are intended to be enduring to provide certainty for industry in making significant investment decisions concerning the provision of broadcasting services in the relevant licence areas.
The Explanatory Memorandum for the Legislative Instruments Bill 2003 stated that some of the rationales for exemption from sunsetting included:
- where the instrument is clearly designed to be enduring and not subject to regular review…
- where commercial certainty would be undermined by sunsetting. For example, the table includes plans of management made under the Fisheries Management Act 1991 – substantial investments are made in reliance on plans that are intended to be in force for substantially longer periods than 10 years.
There are a number of factors that point to the benefit of commercial certainty being undermined if licence area plans were to sunset every 10 years, and which suggest that licence area plans are intended to be enduring:
- Broadcasting services have been provided in Australia since the first half of the twentieth century, and continue to be a significant part of daily life in Australia.
- There is no express power to revoke a licence area plan. The bulk of the services provided are intended to be for long duration. Commercial and community broadcasting licences are allocated for five years, and are subject to regular renewal after that time. Under section 47 of the Act, the ACMA must renew commercial broadcasting licences unless it is satisfied that allowing the licensee to continue to provide commercial broadcasting services would lead to a significant risk of an offence or a breach of a civil penalty provision under the Act occurring, or a breach of the licence conditions occurring. The regulatory regime clearly intends that generally, once commenced, these services continue uninterrupted, where possible.
- A person must not be in a position to exercise control of more than two commercial radio broadcasting licences, or one commercial television broadcasting licence, in the same licence area (sections 53 and 54 of the Act). Particular considerations apply to overlapping licence areas (section 51 of the Act). A change to a licence area may cause section 51 of the Act to operate in circumstances where it did not previously operate, and place a person in breach of section 53 or section 54 of the Act.
- The provision of broadcasting services involves the deployment of significant infrastructure, especially the radiocommunications transmitters used to provide the service that are planned in licence area plans. As at 30 June 2021, there were 276 commercial radio broadcasting licences, 69 commercial television broadcasting licences and 360 community radio broadcasting licences in force. Combined with the national broadcasters and open radio narrowcasting services, this is a substantial group of stakeholders who would be compelled to make submissions to advance their interests and protect their significant investments if licence area plans were to sunset and be remade every 10 years.
Parliament continues to have oversight of variations to licence area plans, as these instruments are subject to disallowance under the LA. It also has oversight through other mechanisms (e.g., the relevant Senate Estimates Committee). The Minister has the power to give the ACMA a direction about the exercise of the ACMA’s powers to make or vary a licence area plan for a particular area (see subsection 26(8) of the Act).
Documents incorporated by reference
In accordance with section 14 of the LA, the instrument amends the Mount Gambier 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, free of charge, at: www.legislation.gov.au.
The instrument also incorporates the Geodetic Datum of Australia known as GDA94, gazetted in the Commonwealth of Australia Gazette No. GN 35 on 6 September 1995, as existing on that date. Gazette No. GN 35 can be accessed, free of charge, at: www.legislation.gov.au.
The instrument also incorporates areas defined by the Australian Bureau of Statistics (ABS) in its 5 August 2001 Census. As permitted by paragraph 14(1)(b) of the LA, these areas are incorporated as in force at the day the instrument commenced. The areas defined in the Census referred to above are available, free of charge, from the ABS website at: http://www.abs.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 Mount Gambier LAP, the ACMA published a consultation paper on its website on 16 February 2022, which provided the background to the proposal. The following stakeholders were notified by email about the release of the consultation paper:
- radio broadcasting licensees and national broadcasters in the Mt Gambier RA1, Mount Gambier RA2, and Millicent RA1 licence areas, and in adjacent radio licence areas;
- the peak industry bodies Commercial Radio Australia and Community Broadcasting Association of Australia;
- State and Federal members of Parliament whose electorates include the Mount Gambier area, and civic bodies including local councils, shire libraries and community associations.
The consultation period ended on 4 May 2022 and one submission was received. The submission raised concerns with the proposed location for the transmitter serving Mount Gambier. After consideration of the submission, the ACMA decided to proceed with the proposals.
Regulatory impact assessment
The Office of Best Practice Regulation (OBPR), in a guidance note entitled “Carve-outs” (available at:https://obpr.pmc.gov.au/resources/guidance-obpr-procedures/carve-outs), 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 Mount Gambier LAP. The instrument makes changes to the existing characteristics, including technical specifications, of certain radio broadcasting services in the Mount Gambier area of South Australia.
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.
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 – Mount Gambier Radio – 2022 (No.1)
Section 1 Name
This section provides for the instrument to be cited as the Variation to Licence Area Plan – Mount Gambier Radio – 2022 (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.
The Federal Register of Legislation may be accessed, free of charge, at www.legislation.gov.au.
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 provides for the Mount Gambier LAP (F2005B00700) to be varied as set out in Schedule 1 to the instrument.
Schedule 1 Amendments
Item 1 renames the Mount Gambier LAP as the “Licence Area Plan – Mount Gambier Radio”.
Item 2 amends the title page to refer to the Mount Gambier LAP’s new title.
Item 3 omits a date from the heading before the clauses of the Mount Gambier LAP.
Item 4 numbers each clause consecutively as they appear.
Item 5 amends clause (1) of the Mount Gambier LAP to make it consistent with other LAPs.
Items 6, 7 and 9 amend clauses (2), (3), and (4) of the Mount Gambier LAP by omitting each occurrence of “Determination” and substituting “plan”, to make it consistent with other LAPs.
Item 8 amends clause (3) of the Mount Gambier LAP to omit the reference to Attachment 2.2 (which is being repealed).
Item 10 inserts a new clause (5) of the Mount Gambier LAP which provides for the interpretation of terms that appear in the licence area plan. Paragraph 5(a) specifies that a reference to a schedule or attachment is a reference to a schedule or attachment to the plan. Paragraph 5(b) specifies that a reference to a legislative instrument in the plan is a reference to that instrument as in force from time to time. Paragraph 5(c) specifies that a reference to any other kind of instrument or writing in the plan is a reference to that instrument or writing as in force or in existence at the time the reference was included in the plan.
Item 11 amends the Mount Gambier LAP to omit the date it was first determined.
Item 12 amends the Mount Gambier LAP to omit some notes.
Item 13 repeals and replaces Schedule One of the Mount Gambier LAP. New Schedule One plans for the AM-FM conversion of the commercial radio broadcasting service provided under licence SL4197, and makes other minor drafting amendments.
Item 14 repeals and replaces Schedule Two of the Mount Gambier LAP. New Schedule Two plans a new technical specification for the community radio broadcasting service provided under licence SL3075, and makes minor drafting amendments.
Item 15 repeals and replaces Schedule Three of the Mount Gambier LAP to make minor drafting amendments.
Item 16 repeals all the attachments to the Mount Gambier LAP, and replaces them with the attachments included in the instrument. Apart from minor drafting amendments, , the substantive changes to the attachments are:
- omitting the technical specification in Attachment 1.2, as it is no longer used for the transmission of a national radio broadcasting service;
- making the technical specification in Attachment 1.9 only available for AM transmission of the commercial radio broadcasting service provided under licence SL4197 until 28 days after transmission of the services commences using the technical specification for FM transmission in new Attachment 1.9A;
- inserting new Attachments 1.9A and 1.9B that plan technical specifications for transmission of the commercial radio broadcasting service provided under licence SL4197;
- amending Attachment 1.10 to increase the maximum antenna height and to vary the Output Radiation Pattern for a transmitter used for the commercial radio broadcasting service provided under licence SL10312, which will provide consistent technical specifications for commercial radio broadcasting services in FM;
- omitting the technical specification in Attachment 2.2, as it is no longer used for the transmission of a community radio broadcasting service;
- omitting the Special Condition in Attachment 2.3 as the condition no longer has any effect.
In each of the attachments, the nominal location of transmitters has been updated, and their locations have been converted from Australian Grid Map references to a latitude and longitude format using GDA94.