Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
BROADCASTING LEGISLATION AMENDMENT (2021 MEASURES NO. 1) BILL
2021
ADDENDUM TO THE EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications, Urban Infrastructure, Cities
and the Arts, the Hon Paul Fletcher MP)
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BROADCASTING LEGISLATION AMENDMENT (2021 MEASURES NO. 1) BILL
2021
This addendum responds to two matters. The first regards concerns about captioning
obligations (Schedule 2) raised by the Senate Standing Committee for the Scrutiny of Bills in
Scrutiny Digest No. 7, dated 12 May 2021. The second regards clearer articulation of the
context for the sunsetting of grandfathering arrangements (Schedule 4).
In Notes on clauses Schedule 2 - Captioning Obligations, after the heading insert:
The core objectives of the proposed reforms to the captioning requirements for subscription
television (STV) licensees are maximising flexibility, simplicity and transparency, while
aiming to ensure that the most popular programming attracts the most captioning.
Reform in this area is desirable for the following reasons:
the existing rules are highly complex to administer and comply with and are opaque to
viewers that rely on captions;
consultations have been conducted in relation to the existing captioning regime and the
STV industry, consumer representatives and the regulator (the Australian
Communications and Media Authority) all support a more simplified and transparent
framework;
the industry has changed significantly as a result of digital disruption since the current
arrangements in the Broadcasting Services Act 1992, which were introduced in 2012. The
introduction of subscription video on demand services (such as Netflix, Stan, Amazon
Prime, Disney Plus, Binge and Optus Sport) has led to significantly reduced audiences
and revenue for licensed STV services. It is expected that the industry will continue to
rapidly evolve; and
the size and complexity of the existing framework is arguably excessive for an industry
sector in decline. The power to make a legislative instrument for the STV captioning
scheme allows flexibility to consult on and respond in a timely and efficient way to new
and emerging issues associated with, or changes affecting, STV and the needs and
interests of viewers who rely on captions.
Prescription of the scheme though primary legislation could not provide the same level of
flexibility and may result in captioning requirements no longer remaining fit for purpose or
becoming out of date as time progresses. The delegated legislation approach adopted in the
Bill will help ensure the scheme remains proportionate to the STV industry's role and
remains adaptable to the needs of captioning users.
The scheme would be a legislative instrument for the purposes of the Legislation Act 2003,
and therefore subject to parliamentary scrutiny and the disallowance regime of that Act.
The Bill sets out at proposed subsection 130ZV(1) a non-exhaustive list of the matters likely
to be covered by an STV captioning scheme established by Ministerial determination. The list
comprises matters which are familiar elements of the current regime:
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annual captioning targets for subscription television services, including methods for
working out the targets;
applications for partial or total exemptions from annual captioning targets, including who
may make such applications, the information or documents that must accompany
applications and the making of decisions in relation to applications;
reporting and record-keeping obligations of subscription television licensees; and
the publication of information relating to the scheme, including decisions made under the
scheme.
Consultation will be undertaken to consider:
whether the existing annual captioning targets for different categories of content remain
appropriate or should be simplified, including whether captioning targets should be
subject to annual increases or paused at current levels;
the introduction of more objective grounds for exemptions, such as those based on
audience share for channels and exemptions for racing channels; and
appropriate measures to ensure customers are able to access information about captioning
levels in a more timely way.
In Notes on clauses Schedule 2 - Captioning Obligations, after the text at item 9, insert:
Proposed subsection 130XV(5), which would enable the incorporation of material as in force
or existing from time-to-time, will allow the scheme to include references to certain technical
and industry specific matters that may change from time to time. For example, the proposed
scheme could establish an exemption which had regard to a certain level of audience share as
set out in particular written industry reports or data. An example of industry standard data for
television audience share data is OzTAM data which is available both online and in bespoke
reports which can be commissioned and purchased. However, industry arrangements for
measuring audiences may change from time to time, and it would be important that these
sources remain relevant if audience share becomes a criterion for captioning exemptions.
Should such information be incorporated into the scheme, mechanisms for making this
material publicly and freely available (such as posted on a website) will be explored. The
mechanisms for making incorporated documents publicly available and publicly clarifying
their legal status will be an area for consultation before the scheme is made.
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In Notes on clauses Schedule 4 - Grandfathering arrangements with regard to population
determinations made by ACMA, remove item 2 and replace with:
Item 2 adds a new subsection 43C(4A) which provides that section 43C(4) as amended by
this Bill, ceases to have effect 5 years after the date of the amendment's commencement
(being the day after the Act receives the Royal Assent). The effect of this is that after the
sunsetting date, licensees would no longer be protected from inadvertently breaching the
local content rules under section 43C once ACMA determines new licence area populations.
The Government recognises the value that the exemption gives to radio broadcasters to
manage their commercial interests and ability to meet regulatory requirements. Nevertheless,
it is appropriate that significant fluctuations in populations, particularly in regional areas, may
be taken into account in considering the market in which affected licensees operate and the
needs of the communities they service. This sunsetting provision provides a legislative
mechanism to prompt a review of the exemption in subsection 43C(4) within 5 years to
ensure that the exemption remains appropriate and relevant. The review would inform a
future decision of Government as to whether the sunsetting arrangement remains appropriate
or whether alternative action should be taken, such as the modification or removal of the
sunsetting arrangement. It is anticipated that subsection 43C(4) will remain as drafted in the
absence of significant population changes relating to a section 30 determination.
In Notes on clauses Schedule 4 - Grandfathering arrangements with regard to population
determinations made by ACMA, remove item 5 and replace with:
Item 5 adds a new subsection 52(2) which provides that section 52, as amended by this Bill,
ceases to have effect 5 years after the date of the amendment's commencement (being the day
after the Act receives the Royal Assent). The effect of this is that after the sunsetting date,
licensees would no longer be protected from inadvertently breaching the statutory and control
rules under Part 5: Division 2 and 3, once ACMA determines new licence area populations.
The Government recognises the value that the exemption gives to radio broadcasters to
manage their commercial interests and ability to meet regulatory requirements.
Similarly to Item 2, this sunsetting provision is intended to ensure that the exemption remains
appropriate and relevant through a review of the exemption in section 52 within 5 years. The
review would lead to an assessment of how any changes to population determinations over
time affect the market, licensees and the community; and articulate any further legislative
change that would be required to support the policy intent and objects of the Act, with respect
to section 30 (population determinations). It is anticipated that subsection 52(2) will remain
as drafted in the absence of significant population changes relating to a section 30
determination.
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