EXPLANATORY STATEMENT
Approved by the Australian Communications and Media Authority
Broadcasting Services Act 1992
Variation to Licence Area Plan – Tamworth Radio – 2023 (No. 1)
Authority
The Australian Communications and Media Authority (the ACMA) has made the Variation to Licence Area Plan – Tamworth 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 – Tamworth (Radio) – August 1998 (F2005B00629) (Tamworth LAP) on 27 August 1998.
The instrument primarily varies the characteristics, including technical specifications, of radio broadcasting services in the Tamworth area of New South Wales. The main variations are to convert a commercial radio broadcasting service to the FM frequency band and to vary the technical specifications of one commercial and one community 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).
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 service that are planned in licence area plans. As at 15 September 2023, there were 261 commercial radio broadcasting licences, 70 commercial television broadcasting licences and 361 community 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).
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).
Documents incorporated by reference
In accordance with section 14 of the LA, the instrument amends the Tamworth 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 Tamworth LAP, the ACMA published a consultation paper on its website on 3 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 and national broadcasters in the Tamworth RA1, Tamworth RA2 and in adjacent radio licence areas;
- the peak industry bodies Commercial Radio & Audio and the Community Broadcasting Association of Australia;
- State and Federal members of Parliament whose electorates include the Tamworth area, and civic bodies including local councils, shire libraries and community associations.
The consultation period ended on 27 January 2023.
The ACMA published an addendum to the consultation paper and revised draft instrument on its website on 12 July 2023, which identified a change to a proposed transmitter height. The consultation paper and draft instrument proposed a maximum antenna height of 40 metres for the main transmitters of both 2TM and 2TTT commercial radio broadcasting services as part of an AM–FM conversion. The addendum revised the maximum antenna height to 46 metres.
Stakeholders that were notified about the consultation paper were also notified about the release of the addendum by email, however certain State members of Parliament were substituted as a result of New South Wales State election processes.
The addendum consultation period ended on 26 July 2023.
The ACMA received submissions from a national, a commercial and a community radio broadcasting licensee within the Tamworth area in the original consultation period in December 2022/January2023. A further submission was received from the community radio broadcasting licensee in response to the addendum.
The national licensee submission raised concerns regarding the use of FM spectrum for the proposed AM-FM conversion. The commercial licensee submission raised concerns regarding the extent of potential signal overspill into neighbouring licence areas caused by the AM-FM conversion and suggested an alternate technical specification would reduce overspill. The community licensee submissions supported the proposals related to the community service and requested further variation to the Tamworth LAP.
The ACMA considers that the proposed AM-FM conversion would align with its stated broadcast planning priorities contained within the Five-Year Spectrum Outlook and Future delivery of radio report, namely, converting commercial, community and national services from AM to FM in areas where FM spectrum is readily available. The ACMA investigated the alternate technical specification proposed in the commercial licensee’s submission and found that it would not provide adequate coverage of the Tamworth RA1 licence area. After considering all submissions and subsequent engineering assessments, the ACMA made the instrument in the same format as that consulted upon. Further requests to vary the Tamworth LAP will be considered by the ACMA separately in line with its planning priorities.
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 Tamworth LAP. The instrument facilitates the AM to FM conversion of the 2TM commercial radio broadcasting service with a main FM transmitter to serve the Tamworth area and two FM repeaters to serve the Barraba and Manilla areas. In addition, the instrument makes changes to the existing characteristics, including technical specifications, of national, commercial and community radio broadcasting services in the Tamworth 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 – Tamworth Radio – 2023 (No.1)
Section 1 Name
This section provides for the instrument to be cited as the Variation to Licence Area Plan – Tamworth 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 Amendments
This section provides for the Tamworth LAP (F2005B00629) to be varied as set out in Schedule 1 to the instrument.
Schedule 1-Amendments
Item 1 renames the Tamworth LAP as the “Licence Area Plan – Tamworth Radio”.
Item 2 amends the title page to refer to the Tamworth LAP’s new title.
Item 3 omits the subheading, omits each occurrence of “Determination” and substitutes “plan” and inserts a fourth paragraph which provides for the interpretation of terms that appear in the licence area plan. Paragraph 4(a) specifies that a reference to a schedule or attachment is a reference to a schedule or attachment to the plan. Paragraph 4(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 4(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 4 omits a refence to the former authority and date of determination.
Item 5 omits text which is no longer relevant.
Item 6 substitutes Schedule One of the Tamworth LAP. The new Schedule One:
- inserts a new technical specification for a national service;
- inserts two new services for the commercial radio broadcasting service provided under licence SL4865;
- plans for the AM-FM conversion of the commercial radio broadcasting service provided under licence SL4134; and
- amends the technical specification number for the open narrowcasting service.
Item 7 substitutes Schedule Two of the Tamworth LAP. The new Schedule Two:
- amends technical specifications references for all community radio broadcasting services; and
- amends the frequency, technical specification number and area served for the community radio broadcasting service provided under licence SL3061.
Item 8 omits all the attachments to the Tamworth LAP and substitutes them with the attachments included in the instrument. The substantive changes to the attachments are to:
- insert a new Attachment 1.4A that plans the technical specification for transmission of a national radio broadcasting service;
- amend Attachment 1.5 to insert a special condition about the maximum cymomotive force of the planned transmitter;
- amend Attachment 1.6 to reduce the maximum antenna height and vary the Output Radiation Pattern;
- insert new attachments 1.6A and 1.6B that plan the technical specifications for transmission of a commercial radio broadcasting service provided under licence SL4865;
- amend Attachment 1.7 to insert special conditions about the maximum cymomotive force of the planned transmitter and the cessation of the AM transmission of the commercial radio broadcasting service provided under licence SL4197 after transmission of the FM service commences using the technical specification in new Attachment 1.7A;
- insert new attachments 1.7A, 1.7B and 1.7C that plan the technical specifications for transmission of a commercial radio broadcasting service provided under licence SL4197;
- amend Attachment 1.8 to vary the specification number, remove the ERP restriction and remove a special condition regarding Minimum Level of Service Requirement which is no longer relevant;
- omit Attachment 2.2 as it is no longer used for the transmission of a community radio broadcasting service;
- amend Attachment 2.3 to vary the specification number, remove the ERP restriction, remove the special conditions which are no longer relevant and renumber the Attachment as 2.2.
- insert a new Attachment 2.3 that plans the technical specification for transmission of a community radio broadcasting service provided under licence SL3061;
- amend Attachment 2.4 to vary the specification number, remove the ERP restriction and remove the special conditions which are no longer relevant.
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.