EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Broadcasting Services Act 1992
Variation to Licence Area Plan – Spencer Gulf North Radio – 2019 (No.1)
Authority
The Australian Communications and Media Authority (the ACMA) has made the Variation to Licence Area Plan – Spencer Gulf North 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 – Spencer Gulf North Radio – December 2001 (F2005B00712) (Spencer Gulf North LAP) in December 2001.
The instrument varies the characteristics, including technical specifications, of radio broadcasting services in the Spencer Gulf North area of South Australia. In relation to the 5AU commercial radio broadcasting service (5AU), the instrument makes spectrum available for a main FM transmitter to enable that service to transmit in FM as well as AM and makes spectrum available for an FM infill transmitter as part of that process. In relation to the 5AUU commercial radio broadcasting service (5AUU), the instrument makes spectrum available for an FM infill transmitter.
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 Spencer Gulf North 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 free of charge 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 Spencer Gulf North LAP, on 3 July 2019, the ACMA published on its website a consultation paper which provided the background to the proposal. 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 variation. The following stakeholders were notified separately about the release of the consultation paper: radio broadcasting licensees and national broadcasters in the Spencer Gulf North RA1 licence area and in adjacent radio licence areas; the peak bodies Commercial Radio Australia and Community Broadcasting Association of Australia; Airservices Australia; and state and federal politicians. Civic bodies including local councils and libraries were contacted.
The consultation period ended on 2 August 2019. The ACMA received two submissions. The first opposed the proposed simulcasting of the 5AU service at Port Pirie and also raised overspill concerns. The second raised a concern about the proposal to switch off the 5AU AM transmitter at Mambray Creek. These matters were considered, but the ACMA considered that the benefits of the simulcast outweighed any disadvantages, that the overspill was not significant, and that coverage should not be adversely affected by cessation of the transmitter at Mambray Creek.
The ACMA took all comments and submissions 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 – Spencer Gulf North Radio – December 2001. The instrument makes radiofrequency spectrum available for, and changes existing characteristics including technical specifications of, certain radio broadcasting services in the Spencer Gulf 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 – Spencer Gulf North Radio – 2019 (No.1)
Section 1 Name
This section provides for the instrument to be cited as the Variation to Licence Area Plan – Spencer Gulf North 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 Variation
This section varies the Spencer Gulf North LAP as set out in paragraphs 4(a) to 4(af).
Paragraph 4(a) renames the Spencer Gulf North LAP as the Licence Area Plan – Spencer Gulf North Radio.
Paragraph 4(b) makes a consequential change reflecting the renaming of the Spencer Gulf North LAP.
Paragraph 4(c) omits clause (1) and substitutes a new clause (1). The new clause (1) provides that the Spencer Gulf LAP is a plan for radio broadcasting services in the Spencer Gulf North area of South Australia and is made under subsection 26(1) of the Act.
Paragraph 4(d) omits each occurrence of the word “Determination” and substitutes the word “plan” in clauses (2) to (6) of the Spencer Gulf North LAP.
Paragraph 4(e) makes a consequential change to clause (2) of the Spencer Gulf North LAP as a result of the insertion of an additional attachment to the LAP.
Paragraph 4(f) omits clause (7) and substitutes a new clause (7) in the Spencer Gulf North LAP. The new clause (7) ensures that a reference to a schedule or an attachment is a reference to a schedule or an attachment to the Spencer Gulf North LAP, and that a reference to the Broadcasting Services (Technical Planning) Guidelines 2017 or another legislative instrument includes a reference to that legislative instrument as in force from time to time. New clause (7) also provides that a reference to any other kind of instrument or writing is a reference to that other kind of instrument or writing as in force or existence at that time the reference was included.
Paragraph 4(g) amends Schedule One to the Spencer Gulf North LAP to reflect the insertion of three new attachments, making spectrum available for FM transmission of 5AU and 5AUU.
Paragraph 4(h) removes the reference to Attachment 5.2 in Schedule Five of the Spencer Gulf North LAP, as the attachment is being omitted. It also inserts the word “Community” before an entry involving a Transmitter Specification Number in Attachment 5.3.
Paragraphs 4(i), (j), (k), (l), (m), (r), (s), (z), (aa), (ab) and (ad) make some minor amendments to the text of various Attachments to the Spencer Gulf LAP, to make the text consistent across the Attachments and with other licence area plans.
Paragraphs 4(n) to (q), and Schedules 1 and 2 to the instrument, make the following changes to several attachments:
- a change to the nominal location of the transmitter to provide a better description;
- a change from Australian Map Grid references to Geocentric Datum of Australia 94 coordinates; and
- updating the name of the Broadcasting Services (Technical Planning) Guidelines 2017.
Paragraph 4(t) inserts in Attachments 1.2 and 1.9 the same special condition about maximum cymomotive force for the transmitter specified in each attachment.
Paragraph 4(u) includes in Attachment 1.8 the same special condition that is referred to in paragraph 4(t). The paragraph also includes information about the cessation of the availability of the technical specification in Attachment 1.8 once transmission commences under Attachment 1.8A.
Paragraphs 4(v) and (w), and Schedules 3 and 4, insert new Attachments 1.8A and 1.10A into the Spencer Gulf North LAP, which makes spectrum available for the FM transmission of 5AU.
Paragraph 4(x) removes special conditions from Attachments 1.12 and 5.3 that are no longer needed.
Paragraph 4(y) and Schedule 5 insert new Attachment 1.13A into the Spencer Gulf North LAP, which makes spectrum available for the FM transmission of 5AUU.
Paragraph 4(ac) omits and replaces the Output Radiation Pattern table in Attachment 4.2 in order to increase the bearing or sectors specified from three to five entries and to include two additional maximum effective radiated powers for the two added entries.
Paragraph 4(ae) omits Attachment 5.2 which covers the technical specification for a community radio broadcasting service transmitter which is no longer needed.
Paragraph 4(af) changes the polarisation of the community radio broadcasting service transmitter covered by Attachment 5.3, from vertical to mixed.