EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Broadcasting Services Act 1992
Variation to Licence Area Plan – Mudgee Radio – 2023 (No. 1)
Authority
The Australian Communications and Media Authority (the ACMA) has made the Variation to Licence Area Plan – Mudgee Radio – 2023 (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 – Mudgee (Radio) – June 1997 (F2005B00622) (Mudgee LAP) on 26 June 1997.
The instrument primarily varies the characteristics, including the technical specifications, of radio broadcasting services in the Mudgee area of New South Wales. The main purpose of the variations is to enable the 2MG commercial radio broadcasting service to convert from AM to FM transmission. The variations include two new technical specifications for an FM main transmitter to serve Mudgee and an FM repeater to serve Kandos.
The instrument also makes minor variations including updates to transmitter site nominal locations and replaces Australian Map Grid References with Geocentric Datum of Australia 1994 (GDA94) co-ordinates.
The instrument also renames the Mudgee LAP.
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 section 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 Legislation Act 2003. 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 2022, there were 276 commercial radio broadcasting licences, 69 commercial television broadcasting licences and 366 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 Mudgee 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.
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 Mudgee LAP, the ACMA published a consultation paper on its website on 25 March 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 the national broadcasters in the Mudgee RA1 and Kandos RA1 licence areas and in adjacent radio licence areas;
- peak industry bodies Commercial Radio Australia, Community Broadcasting Association of Australia, Australian Narrowcast Radio Association, and First Nations Media Australia;
- State and federal members of parliament whose electorates include Mudgee and the surrounding areas, as well as civic bodies and community associations.
The consultation period ended on 29 April 2022.
The ACMA received one submission from a commercial radio broadcasting services licensee. The submission objected to draft technical specifications in the consultation paper for the AM to FM conversion of the 2MG commercial radio broadcasting service and suggested alternative technical specifications. After considering the submission, the ACMA made the instrument in the same format as that consulted upon as it was not satisfied that the alternative technical specifications proposed in the submission would provide adequate coverage to the target areas.
Regulatory impact assessment
The Office of Impact Analysis (OIA), in a guidance note entitled “Carve-outs” (available at: https://oia.pmc.gov.au/resources/guidance-oia-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 (reference number: 13301). A carve-out is a standing agreement between OIA and a government agency which sets aside the requirement for a preliminary assessment to be sent to OIA 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 Mudgee LAP. The instrument facilitates the AM to FM conversion of the 2MG commercial radio broadcasting service with a main FM transmitter to serve the Mudgee area and an FM repeater to serve the Kandos area. The arrangements involve the use of a frequency planned for a community radio broadcasting service to serve Mudgee, which never operated. The instrument therefore removes the planning of that community service from the Mudgee LAP as well as the description of the licence area designated as the licence area for that community service. In addition, the instrument makes changes to the existing characteristics, including technical specifications, of other radio broadcasting services in the Mudgee area of New South Wales.
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 – Mudgee Radio – 2023 (No.1)
Section 1 Name
This section provides for the instrument to be cited as the Variation to Licence Area Plan – Mudgee Radio – 2023 (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).
Section 4 Amendments
This section explains that the Mudgee LAP is amended by the items specified in Schedule 1 of the instrument.
Schedule 1–Amendments
Item 1 changes the name of the Mudgee LAP to the ‘Licence Area Plan – Mudgee Radio’.
Item 2 reflects the name change of the Mudgee LAP on its title page.
Item 3 replaces some headings in the Mudgee LAP to reflect its name change.
Item 4 repeals and replaces clause 1 to replace historical redundant text about the making of the Mudgee LAP. The replacement text specifies the provision of the Act under which the Mudgee LAP is made.
Item 5 repeals and replaces clause 2 to include a reference to an additional national radio broadcasting service in the clause.
Item 6 repeals clause 3, which removes a reference to a community radio broadcasting service that was made available in the Mudgee RA2 licence area. This item is connected to items 12 and 24 below.
Items 7 and 8 replace the word ‘Determination’ with the word ‘plan’ throughout clause 4 and 5.
Item 9 repeals and replaces clause 6, which ensures that a reference to a schedule or an attachment is a reference to a schedule or an attachment to the Mudgee LAP, that a reference to a legislative instrument in the Mudgee LAP is a reference to that instrument as in force from time to time, and that a reference to any other kind of instrument or writing refers to it as in force or existence at the time the reference was included in the Mudgee LAP.
Item 10 omits redundant text after clause 6 about the making of the Mudgee LAP.
Item 11 repeals and replaces Schedule One of the Mudgee LAP. Schedule One specifies the characteristics of broadcasting services to be available in the Mudgee RA1 licence area.
Item 12 repeals Schedule Two of the Mudgee LAP, which specifies the characteristics of the community radio broadcasting service that was made available in the Mudgee RA2 licence area. This item is connected to item 6 above and item 24 below.
Item 13 repeals and replaces Schedule Three of the Mudgee LAP, which specifies the characteristics of a commercial radio broadcasting service planned to serve the Kandos area.
Item 14 removes redundant text from the heading to Schedule Four of the Mudgee LAP.
Item 15 reorders the attachments in the Mudgee LAP in ascending numerical order.
Item 16 replaces the word ‘numbers’ with ‘number’ in Attachment 1.1, which is the description of the Mudgee RA1 licence area.
Item 17 makes changes to Attachment 1.2 to the Mudgee LAP. The Attachment includes the characteristics of the 2MG commercial radio broadcasting service and the technical specification for its AM transmitter. A minor change is made to the description of the general area served to specify the relevant State. The other changes are to the transmitter’s nominal location and its co-ordinates. In addition, the reference to a legislative instrument (Broadcasting Services (Technical Planning) Guidelines 2017) is corrected. A change is also made to the output radiation pattern table in the technical specification. Text referred to as a ‘note’ in the technical specification is changed to a ‘special condition’ to reflect its obligatory nature. Further, text is included in the Attachment about the cessation of the technical specification on the commencement of the 2MG service’s FM transmission.
Item 18 inserts two new Attachments (Attachments 1.3 and 1.4 at Schedule 2 to the instrument) in the Mudgee LAP. The Attachments include the technical specifications for the main FM transmitter and the FM repeater for the AM to FM conversion of the 2MG service.
Item 19 makes changes to Attachment 1.5 to the Mudgee LAP. The Attachment includes the characteristics of a national broadcasting service and the technical specification for its transmitter. A small formatting change is made to the general area served. Other changes to the technical specification are to the nominal location and its co-ordinates. The reference to the legislative instrument mentioned in Item 17 is corrected. A change is also made to the maximum antenna height specified.
Item 20 makes changes to Attachment 1.6 to the Mudgee LAP. The Attachment includes the characteristics of an open narrowcasting service and the technical specification for its transmitter. A minor formatting change is made to the general area served. Other changes to the technical specification are to the nominal location and its co-ordinates, and to the reference to the legislative instrument mentioned in Item 17.
Item 21 makes changes to Attachment 1.7 to the Mudgee LAP. The Attachment includes the characteristics of a national broadcasting service and the technical specification for its transmitter. The changes made are to the nominal location and its co-ordinates, and to the reference to the legislative instrument mentioned in Item 17. A change is also made to the maximum antenna height specified.
Item 22 makes changes to Attachment 1.8 to the Mudgee LAP. The Attachment includes the characteristics of a national broadcasting service and the technical specification for its transmitter. The changes made are identical to those in item 21.
Item 23 inserts a new Attachment (Attachment 1.9 at Schedule 3 to the instrument) in the Mudgee LAP. The Attachment includes the characteristics of a national broadcasting service and the technical specification for its transmitter.
Item 24 repeals Attachments 2.1 and 2.2 to the Mudgee LAP. The item removes the licence area description of the Mudgee RA2 licence area and the characteristics and technical specification for a community radio broadcasting service that was to be available in that licence area, but never operated. The carrier frequency for that service is reused and included in the technical specification in Attachment 1.3 as the carrier frequency for the main transmitter for the 2MG conversion.
Item 25 replaces the word ‘numbers’ with ‘number’ in Attachment 3.1. Attachment 3.1 is the description of the Kandos RA1 licence area.
Item 26 makes changes to Attachment 3.2 to the Mudgee LAP. The Attachment includes the characteristics of a community radio broadcasting service and the technical specification for its transmitter. The changes made are to the nominal location and its co-ordinates, and to the reference to the legislative instrument mentioned in Item 17.
Item 27 replaces the word ‘numbers’ with ‘number’ in Attachment 4.1, which is the description of the Mudgee RA3 licence area.
Item 28 makes changes to Attachment 4.2 to the Mudgee LAP. The Attachment includes the characteristics of the 2GEE commercial radio broadcasting service and the technical specification for its main transmitter. The changes made are to the nominal location and its co-ordinates, and to the reference to the legislative instrument mentioned in Item 17. A change is also made to the maximum antenna height specified.
Item 29 makes changes to Attachment 4.3 to the Mudgee LAP. The Attachment includes the technical specification for a repeater for the same service as that referred to in item 28. The changes made are to the co-ordinates of the nominal location, and to the reference to the legislative instrument mentioned in Item 17. A change is also made to the maximum antenna height specified.
Schedule 2–Attachments 1.3 and 1.4
Schedule 2 includes the new Attachments 1.3 and 1.4. to the Mudgee LAP.
Schedule 3–Attachment 1.9
Schedule 3 includes the new Attachment 1.9 to the Mudgee LAP.