EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Broadcasting Services Act 1992
Variation to Licence Area Plan – Remote Central and Eastern Australian Radio – 2022 (No. 1)
Authority
The Australian Communications and Media Authority (the ACMA) has made the Variation to Licence Area Plan – Remote Central and Eastern Australian 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 available in particular areas of Australia with the use of the broadcasting services bands.
The Australian Broadcasting Authority determined the Licence Area Plan – Remote Central and Eastern Australia Radio (the Remote LAP) on 14 October 1996.
The instrument varies the characteristics, including technical specifications, of remote commercial radio broadcasting services and community radio broadcasting services in five licence areas planned in the Remote LAP: the Remote Commercial Radio Service Central Zone RA1, the Remote Commercial Radio Service North East Zone RA1, the Milikapiti RA1, the Wujal Wujal RA1 and the Coonabarabran RA1 licence areas. The main variations are:
- amending technical specifications, including increasing the maximum effective radiated power (ERP), maximum antenna height and changing the antenna radiation pattern of the transmitter for the commercial radio broadcasting service with the callsign 8SAT at Padthaway East in South Australia, such that the service is improved in Bordertown and extends its coverage to serve the Willalooka, Wirrega, Wolsely, Frances and Kybybolite areas as well;
- making radiofrequency spectrum available for a new transmitter for the commercial radio broadcasting service with the callsign 4BRZ to serve the Urbenville, Muli Muli and Woodenbong areas in New South Wales;
- making radiofrequency spectrum available for a new transmitter for the commercial radio broadcasting service with the callsign 4RBL to serve the Urbenville, Muli Muli and Woodenbong areas in New South Wales;
- amending technical specifications including increasing the maximum ERP and reducing the maximum antenna height of the transmitter for the commercial radio broadcasting service with the callsign 4BRZ serving the Chinchilla area in Queensland, such that the coverage is improved in outlying areas;
- amending technical specifications including increasing the maximum ERP and reducing the maximum antenna height of the transmitter for the commercial radio broadcasting service with the callsign 4RBL serving the Chinchilla area in Queensland, such that the coverage is improved in outlying areas;
- amending technical specifications including varying the nominal location and coordinates of the transmitter for a community radio broadcasting service serving the Milikapiti area in the Northern Territory to accurately identify the location of the transmitter;
- replanning technical specifications for a transmitter for the community radio broadcasting service with the callsign 4ACR serving the Wujal Wujal area in Queensland, which had been omitted from the Remote LAP in 2018;
- amending technical specifications, including varying the nominal location, for the transmitter for a community radio broadcasting service with the callsign 2WCR serving the Coonabarabran area in New South Wales, to more accurately reflect the current implemented site location.
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 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 Legislation Act 2003 (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 incorporates 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 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 at the time the instrument commences. Gazette No. GN 35 can be accessed, free of charge, at: www.legislation.gov.au.
The instrument also refers to, but does not incorporate, the Licence Area Plan – Murray Bridge Radio. That plan may be accessed from the Federal Register of Legislation 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 Remote LAP, the ACMA published a consultation paper on the ACMA website on 8 December 2021 and invited comment on proposals to vary the Remote LAP, which included background to each individual proposal, proposed technical specifications for relevant attachments and maps of the affected licence areas.
The ACMA wrote to relevant stakeholders, notifying them that the consultation paper had been published, including peak bodies, the commercial radio broadcasting licensees, other broadcasting licensees and national broadcasters in the remote licence areas and adjacent radio licence areas, and others who had shown interest in one or more of the proposals previously, and invited comments.
The consultation period ended on 18 February 2022. The ACMA received no submissions and decided to proceed with the proposals.
Regulatory impact assessment
The Office of Best Practice Regulation (OBPR), in a guidance note entitled “Carve-outs” (available free of charge at: https://www.pmc.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 – Remote Central and Eastern Australia Radio. The instrument makes radiofrequency spectrum available and amends transmitter specifications for commercial radio broadcasting services and community radio broadcasting services in some remote licence areas. Most of the changes increase the areas served by some commercial radio broadcasting services.
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 – Remote Central and Eastern Australian Radio – 2022 (No. 1)
Section 1 Name
This section provides for the instrument to be cited as the Variation to Licence Area Plan – Remote Central and Eastern Australian Radio – 2022 (No. 1).
Section 2 Commencement
This section provides for the instrument to commence at the start of the day after the day 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 Variation
This section provides for the Remote LAP (F2005B01472) to be varied as set out in Schedule 1 to the instrument.
Schedule 1–Variation
Item 1 amends clause 47 of the Remote LAP, which plans a community radio broadcasting service for the Wujal Wujal RA1 licence area, to include a reference to new Attachment 47.3.
Item 2 amends Schedule Two to the Remote LAP to insert the details of new technical specifications for new transmitters to be used for the commercial radio broadcasting services provided under commercial radio broadcasting licence SL10216 at Urbenville, New South Wales and under commercial radio broadcasting licence SL1150711 at Urbenville, New South Wales to permit the extension of the services into these areas.
Item 3 amends Schedule Forty Seven to the Remote LAP by replacing the current table in the schedule. The new table includes the details of a new technical specification that is being added to the Remote LAP, for a transmitter for the service provided under community radio broadcasting licence SL10207 in the Wujal Wujal RA1 licence area, in Queensland (SL10207 Wujal Wujal transmitter).
Item 4 amends Attachment 1.31 to the Remote LAP, which is the technical specification for the Padthaway East transmitter for the service provided under commercial radio broadcasting licence SL10147, to change the nominal location, increase the maximum antenna height, increase the maximum ERP and change the antenna radiation pattern. Item 4 also adds a special condition to the technical specification, stating that the specification of a commercial radio broadcasting service in Mount Barker is on the same frequency and in the event the Mount Barker licensee reports interference to its reception, the licensee of SL10147must take steps to modify its transmission to address the interference concern. These changes are intended to improve the reception of the commercial radio broadcasting service in Bordertown, South Australia, and allow reception to extend to Willalooka, Wirrega, Wolsely, Frances and Kybybolite, South Australia.
Item 5 amends Attachments 2.14 and 2.63 to the Remote LAP, which are the technical specifications for the Chinchilla transmitters of the services provided under commercial radio broadcasting licences SL10216 and SL1150711, to decrease the maximum antenna height and increase the maximum ERP. These changes are intended to improve coverage in outlying areas of Chinchilla, Queensland.
Item 6 inserts new Attachment 2.48A into the Remote LAP, planning a transmitter at Urbenville for the service provided under SL10216. New Attachment 2.48A is set out in Part 1 of Schedule 2 to the instrument. These changes will allow the service to be extended to Urbenville, New South Wales.
Item 7 inserts new Attachment 2.89A into the Remote LAP, planning a transmitter at Urbenville for the service provided under SL1150711. New Attachment 2.89A is set out in Part 2 of Schedule 2 to the instrument. These changes will allow the service to be extended to Urbenville, New South Wales.
Item 8 amends Attachment 28.2 to the Remote LAP, which is the technical specification for a transmitter used to provide a service under community radio broadcasting licence SL10123 for the Milikapiti RA1 licence area in the Northern Territory. The amendments change the nominal location and the nominal coordinates of the transmitter, to reflect the actual location of the transmitter.
Item 9 amends Attachment 47.2 to the Remote LAP, which is the technical specification for a transmitter for the service provided under the community radio broadcasting licence SL10207 in the Wujal Wujal RA1 licence area, in Queensland. The amendments change the nominal location and nominal coordinates of the transmitter to better reflect the location of the transmitter and provide that the technical specification is only available once the transmission in accordance with the technical specification in Attachment 47.3 has ceased.
Item 10 inserts new Attachment 47.3 into the Remote LAP, planning the SL10207 Wujal Wujal transmitter. New Attachment 47.3 is set out in Part 3 of Schedule 2 to the instrument. The transmitter used to provide the service under SL10207 is currently operating in accordance with this technical specification. It is intended that the transmitter will eventually be operated in accordance with the technical specification in Attachment 47.2. Once that occurs, the technical specification in Attachment 47.3 will no longer be available to the licensee of SL10207.
Item 11 amends Attachment 53.2, which is the technical specification for a transmitter for the service provided under community radio broadcasting licence SL1150830 in the Coonabarabran RA1 licence area, in New South Wales. The amendments change the nominal location and the nominal coordinates of the transmitter to better reflect the location of the transmitter.
Schedule 2–New Attachments
This schedule sets out the three attachments to be inserted as mentioned in Schedule 1. They are new Attachment 2.48A, new Attachment 2.89A and new Attachment 47.3.