Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
Broadcasting Legislation Amendment (Digital Dividend) Bill 2013
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Broadband, Communications
and the Digital Economy, Senator the Honourable Stephen Conroy)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE HOUSE TO THE BILL AS INTRODUCED
Broadcasting Legislation Amendment (Digital Dividend) Bill 2013
OUTLINE
The Broadcasting Legislation Amendment (Digital Dividend) Bill 2013 (the
Bill) would amend the Broadcasting Services Act 1992 (the BSA) and the
Radiocommunications Act 1992 (the Radcoms Act) with respect to the
datacasting licensing regime.
On 24 June 2010, the Minister for Broadband, Communications and the Digital
Economy (the Minister) announced that the Australian Government had decided
to release 126 Megahertz of broadcasting spectrum as a digital dividend.
This spectrum is expected to be cleared of all existing services by 31
December 2014. The auction of the digital dividend spectrum is scheduled
to take place in April 2013.
The Australian Communications and Media Authority (ACMA) may agree that the
successful bidders at the digital dividend auction can commence services in
particular geographic areas prior to the digital dividend spectrum being
redesignated out of the broadcasting services bands (BSBs). The ACMA will
assess on a case-by-case basis any applications from incoming spectrum
licensees seeking early access to the digital dividend spectrum.
To facilitate the potential early commencement of new services in the
digital dividend spectrum, while that spectrum remains in the BSBs, the
Bill would limit the application of datacasting regulation in Schedule 6 to
the BSA so that only commercial television broadcasting licensees,
commercial radio broadcasting licensees and national broadcasters providing
datacasting services would generally be required to hold a datacasting
licence under the BSA.
The Bill would achieve this by introducing the concept of 'designated
datacasting services'. A designated datacasting service will be defined as
a datacasting service that is provided by a commercial television
broadcasting licensee, a commercial radio broadcasting licensee or a
national broadcaster, or is of a kind specified by the Minister.
The Bill would empower the Minister to specify, by legislative instrument,
kinds of datacasting services that should be considered designated
datacasting services, and providers of those services will therefore be
required to hold a datacasting licence under Schedule 6 to the BSA. This
would empower the Minister to require a service provided in the BSB
spectrum (such as one provided by a successful bidder of the digital
dividend auction) to comply with datacasting regulation under Schedule 6 to
the BSA.
The Bill would also make a number of minor consequential amendments to the
BSA and the Radcoms Act in order to implement changes to the datacasting
regime.
The Bill would also repeal a spent provision in the BSA that refers to a
statutory review that has already been conducted and tabled in Parliament.
The Bill would require the Minister to direct the Australian Communications
and Media Authority (the ACMA) to review and report on the provision of
spectrum for low interference potential device class licences and provide a
transition pathway for such licences by 30 July 2013.
FINANCIAL IMPACT STATEMENT
The amendments in the Bill are not expected to have any direct financial
impact on Commonwealth revenue or expenditure.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
Broadcasting Legislation Amendment (Digital Dividend) Bill 2013
The Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011. The Bill promotes freedom of
expression by allowing certain datacasting services to be provided without
a datacasting licence.
Overview of Bill
The general purpose of the Bill is to amend the Broadcasting Services Act
1992 (BSA) and the Radiocommunications Act 1992 with respect to the
licensing of datacasting services. In particular, the Bill limits the scope
of datacasting regulation so that only certain datacasting services are
required to be provided in accordance with a datacasting licence under the
BSA.
The Bill also requires the Minister to direct the ACMA to review and report
on the provision of spectrum for low interference potential device class
licences and provide a transition pathway for such licences by 30 July
2013.
Human rights implications
Australia is a signatory to the International Covenant on Civil and
Political Rights (the ICCPR), one of the international instruments listed
in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Article
19(2) of the ICCPR protects freedom of expression, including the right to
seek, receive and impart information and ideas of all kinds, and the means
of their dissemination.
The datacasting measures in the Bill have no impact on any natural persons
in the capacity of licensee; only qualified companies are eligible to hold
datacasting licences. Nevertheless, by reducing the barriers to entry and
administrative burden associated with the provision of datacasting
services, the measures in the Bill may encourage additional services to
emerge, or to emerge more quickly. The Bill therefore promotes freedom of
expression by increasing the potential range of datacasting services
available to the public.
In addition, the requirement for the Minister to direct the ACMA to conduct
a review and provide a report on spectrum issues does not engage any of the
applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it promotes freedom of
expression in accordance with Article 19(2) of the ICCPR.
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
| | |
|ACMA: |Australian Communications and Media |
| |Authority |
| | |
|Bill: |Broadcasting Legislation |
| |Amendment (Digital Dividend) |
| |Bill 2013 |
| | |
|BSA: |Broadcasting Services Act 1992 |
| |(Cth) |
| | |
|Radcoms Act: |Radiocommunications Act 1992 |
| |(Cth) |
| | |
|Minister: |Minister for Broadband, |
| |Communications and the Digital |
| |Economy |
| | |
NOTES ON CLAUSES
Broadcasting Legislation Amendment (Digital Dividend) Bill 2013
Clause 1 - Short title
1. Clause 1 provides for the citation of the Broadcasting Legislation
Amendment (Digital Dividend) Act 2013 (the Act).
Clause 2 - Commencement
2. Clause 2 of the Bill provides clauses 1 to 3 and Item 25 of Schedule 1
would commence on the day after the Act receives the Royal Assent. Items
1 to 24 of Schedule 1 would commence on 1 October 2013. The delayed
commencement allows the Minister to consider the report provided by the
ACMA on low interference potential device class licences due 30 July
2013.
Clause 3 - Schedule (s)
3. Clause 3 of the Bill provides that each Act that is specified in a
Schedule to the Bill is amended or repealed as set out in the applicable
items in the Schedule concerned, and any other item in a Schedule to the
Bill has effect according to its terms.
Schedule 1 --Amendments
Broadcasting Services Act 1992
Item 1 - Subsections 34(5) and (6)
4. Item 1 of Schedule 1 to the Bill would repeal subsections 34(5) and
34(6) of the BSA.
5. Section 34 of the BSA allows the ACMA to make unused or unplanned
broadcasting services bands spectrum available for other purposes
(including for the transmission of datacasting services) for a specified
period of time. The ACMA makes spectrum available under section 34 by
making what is known colloquially as a 'drop through' determination.
6. Subsection 34(5) of the BSA deals with the availability of spectrum
before 1 January 2007, and is a spent provision.
7. Subsection 34(6) of the BSA sets out the meaning of 'datacasting
service' for the purposes of the application of section 34 to the
availability of the spectrum on or after 1 January 2007.
8. The Bill proposes to amend Schedule 6 to the BSA so that only those
persons who provide a designated datacasting service will be required to
hold a BSA datacasting licence (see item 5 below). As a result, Item 1
of this Bill repeals subsection 36(6) to ensure that the ACMA is able to
make part (or parts) of the broadcasting services bands spectrum
available for allocation for the purposes of datacasting services,
whether or not such services were provided under a datacasting licence.
Item 2 - Section 215A
9. Item 2 of Schedule 1 to the Bill would repeal section 215A of the BSA.
Section 215A provides for a statutory review of certain transmission
technologies to be conducted by 1 January 2011. This section is now
spent.
10. On 17 November 2010, the Minister caused to be conducted the review
required by section 215A of the BSA.
11. The Minister completed his report of the review on 7 October 2011.
12. The report was tabled in both houses of Parliament on 12 October 2011.
Item 3 - Clause 1 of Schedule 6
13. Item 3 amends the simplified outline in Clause 1 of Schedule 6 to the
BSA. The amendment to the outline reflects the fact that only a person
who provides a designated datacasting service will be required to hold a
datacasting licence.
Item 4 - Subclause 2(1) of Schedule 6
14. Item 4 would insert a new definition of designated datacasting service
for the purpose of Schedule 6 to the BSA (see discussion at item 5
below).
Item 5 - After clause 2 of Schedule 6
15. Item 5 of Schedule 1 to the Bill would insert a new clause 2A into
Schedule 6 to the BSA. The new clause would insert the definition:
designated datacasting service.
16. A designated datacasting service would mean a datacasting service (as
defined in section 6 of the BSA) provided by a commercial television
broadcasting licensee; a commercial radio broadcasting licensee; or a
national broadcaster; or of a kind specified in a legislative instrument
made by the Minister under new subclause 2A(2). As a result of this
amendment, a datacasting service that is outside the scope of the
designated datacasting service definition would not be required to hold
a datacasting licence under the BSA.
17. Proposed subclause 2A(2) would confer on the Minister a power to
specify kinds of designated datacasting services. A category of
datacasting service so specified by the Minister would be required to
hold a BSA datacasting licence. This will allow the Minister the
flexibility to expand the scope of the datacasting regime if the
circumstances warrant. In particular the government will monitor
unlicensed datacasting services and reserves the right to bring these
datacasters within the scope of Schedule 6 to the BSA, including the
conditions of service and codes of practice that only apply to licensed
datacasting services.
Item 6 - Subclause 36(2) of Schedule 6
18. Subclause 36(2) of Schedule 6 to the BSA provides for a person who
believes that another person is providing a datacasting service without
a datacasting licence which authorises the service, to make a complaint
to the ACMA.
19. Item 6 would amend subclause 36(2) so that a complaint could only be
made to the ACMA by a person who believed that a designated datacasting
service was being provided without a datacasting licence. This reflects
the fact that only designated datacasting service will be required to be
licenced.
Item 7 - Division 1 of Part 8 of Schedule 6 (heading)
20. This item would insert the word 'designated' into the heading for
Division 1 of Part 8 of Schedule 6. This is a technical amendment to
make the heading better reflect the datacasting licensing regime as
proposed to be amended.
Item 8 - Clause 49 of Schedule 6 (heading)
21. This item would insert the word 'designated' into the heading for
clause 49 of Schedule 6. This is also a technical amendment designed to
make the heading better reflect the datacasting licensing regime as
proposed to be amended.
Item 9 - Paragraph 49(1)(a) of Schedule 6
Item 10 - Subclause 49(3) of Schedule 6
22. Clause 49 of Schedule 6 to the BSA prohibits the provision of a
datacasting service without a licence. Subclause 49(1) is an offence
provision, making it an offence to intentionally provide a datacasting
service without a licence. A separate offence is committed for each day
of contravention (subclause 49(2)). Subclause 49(3) is a civil penalty
provision that applies to the provision of a datacasting service without
a licence.
23. Items 9 and 10 of Schedule 1 to the Bill amend the offence and civil
penalty provisions, respectively, in clause 49 so that they only apply
to provision of a designated datacasting service without a licence.
Radiocommunications Act 1992
Item 11 - Section 5
24. Item 11 inserts a new definition of 'datacasting service' in section 5
of the Radcoms Act. The new definition cross-references the definition
proposed to be inserted into Schedule 6 to the BSA (see discussion at
item 5 above).
Item 12 - Subsection 100A(1)
Item 13 - Subsection 100A(1B)
Item 14 - Subsection 100B(2)
Item 15 - Subsection 100B(2B)
Item 16 - Subsection 102(3)
Item 17 - Subsection 102(5)
Item 18 - Subsection 102A(3)
Item 19 - Subsection 102A(5)
25. Division 2 of Part 3.3 of the Radcoms Act governs the issuing of
various types of apparatus licences by the ACMA. Subsections 100A(1),
100B(2), 102(3) and 102A(3) of the Radcoms Act provide that certain
types of licences are taken to authorise the operation of the relevant
transmitter (or transmitters) for transmitting datacasting services in
digital mode on specified channels. However, subsections 100A(1B),
100B(2B), 102(5) and 102A(5) provide that such authorisation has no
effect unless the licensee also holds a BSA datacasting licence
authorising the datacasting service.
26. The categories of licence subject to this general regime are:
. NBS transmitter licences (ie used for transmitting a national
broadcasting service to the public) issued under section 100 (see
subsections 100A(1) and 100A(1B) of the Radcoms Act);
. NBS transmitter licences required to be issued under the National
Television Conversion Scheme 1999, which is made by the ACMA in
accordance with clause 19 of Schedule 4 to the BSA (see
subsections 100B(2) and 100B(2B) of the Radcoms Act);
. transmitter licences issued under section 102 of the Radcoms Act,
which requires the ACMA to issue a transmitter licence to a person
allocated a broadcasting services band licence under Part 4
(commercial television and radio broadcasting licences) or Part 6
(community broadcasting licences) of the BSA. (See subsections
102(3) and 102(5) of the Radcoms Act);
. transmitter licences required to be issued under the Commercial
Television Conversion Scheme 1999, which is made by the ACMA in
accordance with clause 6 of Schedule 4 to the BSA (see
subsections 102A(3) and 102A(5) of the Radcoms Act).
27. Item 12 to 19 of Schedule 1 to the Bill would make consequential
amendments to subsections 100A(1), 100A(1B), 100B(2), 100B(2B), 102(3),
102(5), 102A(3) and 102A(5) of the Radcoms Act, described above, so that
those subsections would only apply to designated datacasting services.
That is, the various categories of transmitter licence specified above
would be taken to authorise the operation of the transmitter for
transmitting a designated datacasting service (see definition at item 5
above), provided the licensee held a BSA datacasting licence authorising
the provision of the service.
Item 20 - Paragraph 109A(1)(i)
28. Item 20 of Schedule 1 to the Bill would repeal paragraph 109A(1)(i) of
the Radcoms Act.
29. Section 109A of the Radcoms Act sets out certain standard conditions
that apply to datacasting transmitter licences. A datacasting
transmitter licence is a licence for a transmitter used for transmitting
a datacasting service, but does not include an NBS transmitter or a
transmitter issued under section 101B, 101C, 102 or 102A.
30. Paragraph 109(1)(i) currently imposes the condition that a licensee
must not use the transmitter for transmitting a datacasting service
unless the service is authorised under a BSA datacasting licence (or
other BSA licence), a class licence under the BSA, or is a BSA exempt re-
transmission service (a term defined by section 5 of the Radcoms Act).
31. The repeal of this particular licence condition is a consequence of the
introduction of the new concept of 'designated datacasting services' and
the idea that not all datacasting licences will be required to be
licenced under the BSA.
Item 21 - Section 118M (definition of content service)
32. Item 21 of Schedule 1 to the Bill would repeal and substitute the
definition of 'content service' in section 118M, which applies to
Division 4A of Part 3.3 of the Radcoms Act ('Access to the Channel B
Datacasting Transmitter Licences'). The new definition is a necessary
consequence of the repeal of paragraph 109A(1)(i), described above,
which is incorporated by reference into the existing definition of
content service. Item 21 is not intended to alter the substantive
meaning of 'content service'.
Item 22 - Paragraph 125(1)(a)
Item 23 - Subsection 128C(1)
Item 24 - Section 128D
33. Items 22, 23 and 24 of Schedule 1 to the Bill make consequential
amendments to remove references to paragraph 109A(1)(i) from paragraph
125(1)(a), subsection 128C(1) and section 128D of the Radcoms Act.
Paragraph 109A(1)(i) is proposed to be repealed (see item 20 above).
Item 25 - ACMA review and report
34. Item 25 of Schedule 1 to this Bill requires the Minister to direct the
ACMA to review and report on the provision of spectrum for low
interference potential device class licences, such as wireless audio
devices. The report must include a transition pathway for such licences.
The report is due by 30 July 2013. This process will provide greater
clarity and certainty for users of wireless audio technology regarding
the future management of spectrum.
Index]
[Search]
[Download]
[Bill]
[Help]