EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Broadcasting Services Act 1992
Variation to Licence Area Plan – Remote Central and Eastern Australia Radio – 2023 (No. 1)
Authority
The Australian Communications and Media Authority (the ACMA) has made the Variation to Licence Area Plan – Remote Central and Eastern Australia 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 – Remote Central and Eastern Australia Radio (F2005B01472) (Remote LAP) on 14 October 1996.
Prior to changes made by the Territories Legislation Amendment Act 2020 (the TLA), broadcasting services on Norfolk Island were regulated under the Norfolk Island Broadcasting Act 2001. Following changes to the administration of Norfolk Island, broadcasting services on Norfolk Island are now regulated under the Act. Part 1 of Schedule 4 to the TLA, which commenced on 17 June 2021, contains transitional provisions, the effect of which are that the ACMA must be in a position to use its powers under Part 6 of the Act in respect of Norfolk Island community radio broadcasting services within 2 years of the commencement of Schedule 4 to the TLA. In order to be able to do so, the Remote LAP needs to be amended to include provision for services on Norfolk Island.
The instrument varies the Remote LAP to insert the characteristics, including technical specifications, of radio broadcasting services to be available on Norfolk Island. The main purpose of the variations is to include the two existing community radio broadcasting services on Norfolk Island in the Remote LAP and to add five national radio broadcasting services and two commercial radio broadcasting services to serve Norfolk Island.
The instrument otherwise varies the Remote LAP to correct a drafting error.
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 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 services 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 Remote 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.
As permitted by paragraph 14(1)(b) of the LA, 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 in existence at the day the instrument commenced; and
- areas defined by the Australian Bureau of Statistics (ABS) in its 5 August 2006 Census and in its 9 August 2016 Census, as in force at the day the instrument commenced.
Gazette No. GN 35 can be accessed, free of charge, at: www.legislation.gov.au. The areas defined in the Censuses 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 Remote LAP, the ACMA published a consultation paper on its website on 7 December 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 on Norfolk Island, the two commercial radio broadcasting licensees who serve the Remote LAP and the national broadcasting services;
- the peak industry bodies Commercial Radio Australia, Community Broadcasting Association of Australia and the Australian Narrowcast Radio Association;
- Federal members of Parliament whose electorates include the Norfolk Island, and civic bodies including the local council, local media and community associations.
The consultation period ended on 27 January 2023 and three submissions were received. The submissions raised no opposition to the plan to include Norfolk Island in the Remote LAP. One submission raised queries regarding frequency allocations for the radio services on the island and another raised the proposal of planning for a local commercial radio service and High Powered Open Narrowcasting (HPON) Service on the island, as opposed to allocating services to an incumbent mainland broadcaster. After consideration of the submissions, the ACMA decided to proceed with the proposals. ACMA engineering and policy assessments indicate the allocation of spectrum on the island meets the legislative requirements for the economic and efficient use of radio spectrum and there has been no indication of demand for a local commercial or HPON service from residents or organisations on Norfolk Island. A copy of the consultation paper and submissions are accessible on the ACMA website: www.acma.gov.au.
Regulatory impact assessment
The Office of Impact Analysis (OIA), 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 (OIA 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 Remote LAP. The instrument contains the characteristics, including technical specifications, of certain radio broadcasting services to be made available on Norfolk Island.
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 Australia Radio – 2023 (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 Australia 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.
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 4 of the Remote LAP by omitting the word “twelve” and substituting the word “seventeen”. This changes the number of national radio broadcasting services planned in the instrument. Five national radio broadcasting services are to be available in Norfolk Island.
Item 2 repeals clauses 46 to 58 (both inclusive) and substitutes the clauses in Part 1 of Schedule 2 to the instrument. This amendment corrects a previous error in the numbering of the clauses. New clause 57 has been added to reflect the addition of the two community radio broadcasting services on Norfolk Island to the instrument.
Item 3 amends Schedule Two to the Remote LAP to insert the details of two new commercial broadcasting services on Norfolk Island. New Attachments 2.37A and 2.81A that are being added to the Remote LAP contain the technical specifications for the two commercial radio broadcasting services.
Item 4 amends Schedule Three to the Remote LAP to insert the details of five new national broadcasting services on Norfolk Island. New Attachments 3.78A to 3.78E containthe technical specifications for the five national radio broadcasting services.
Item 5 inserts new Schedule Fifty Seven into the Remote LAP. Schedule Fifty Seven specifies the technical specifications for new Attachments 57.2, 57.3 and 57.4 which contain the technical specifications for the two community radio broadcasting services provided under licence SL 1180039 and SL 1180049, serving the Norfolk Island RA1 licence area described at Attachment 57.1.
Item 6 amends Attachment 2.1 to the Remote LAP by omitting the words “The licence area, in terms of areas defined by the Australian Bureau of Statistics at the Census of 8 August 2006, is:” and substituting “The licence area is the licence area defined in Attachment 57.1 (Norfolk Island RA1) and the following areas defined by the Australian Bureau of Statistics at the Census of 8 August 2006:” This amendment includes Norfolk Island (the licence area as defined in Attachment 57.1) as a part of the Remote Commercial Radio Service North East Zone RA1.
Item 7 inserts new Attachment 2.37A which contains the technical specifications for a new commercial radio broadcasting service on Norfolk Island.
Item 8 inserts new Attachment 2.81A which contains the technical specifications for a second new commercial radio broadcasting service on Norfolk Island.
Item 9 inserts new Attachments 3.78A, 3.78B, 3.78C, 3.78D and 3.78E. These Attachments contain the technical specifications for the five new national broadcasting services on Norfolk Island.
Item 10 inserts new Attachments 57.2, 57.3 and 57.4 which contain the technical specifications for two new community radio broadcasting services on Norfolk Island.
Schedule 2 to the instrument contains the clauses and Attachments referred to in items 2, 7, 8, 9 and 10 of Schedule 1.