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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
BROADCASTING LEGISLATION AMENDMENT (DIGITAL RADIO) BILL
2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications,
Senator the Honourable Mitch Fifield)
BROADCASTING LEGISLATION AMENDMENT (DIGITAL RADIO) BILL 2017
OUTLINE
The Broadcasting Legislation Amendment (Digital Radio) Bill 2017 (the Bill) proposes to
amend the Broadcasting Services Act 1992 (BSA) and the Radiocommunications Act 1992
(Radcomms Act).
The measures in the Bill stem from reforms identified by the completed statutory reviews of
digital radio (the Digital Radio Report), the Digital Radio Planning Committee for Regional
Australia (the Planning Committee), and the Government's ongoing commitment to
regulation reform.
The Bill contains a package of measures designed to simplify the digital radio framework and
help expedite the rollout of digital radio to regional Australia by shortening legislatively
prescribed timeframes associated with the rollout, and removing unnecessary or redundant
steps in the digital radio rollout process.
Background to measures in the Bill
In July 2015, the Australian Government released the Digital Radio Report on the statutory
reviews of digital radio issues which were conducted by the former Department of
Communications in accordance with section 215B of the BSA and section 313B of the
Radcomms Act. One of the Digital Radio Report's recommendations was that the
Government consider minor amendments to the existing digital radio regulatory regime to
create a simpler, more flexible process for the planning and licensing of digital radio in
regional Australia.
The Broadcasting Legislation Amendment (Digital Radio) Act 2016, which commenced on
1 March 2016, was an initial step in the implementation of this recommendation.
The measures in the Bill are further steps towards implementation of the recommendation to
simplify and improve the operation of the digital radio framework, and also address issues
identified by the Australian Communications and Media Authority (ACMA) and the Planning
Committee.
The Planning Committee was established following a recommendation in the Digital Radio
Report and is chaired by the ACMA. Its key task is to work with industry to facilitate the
rollout of digital radio to regional areas of Australia. Committee members include the
ACMA, the Department of Communications and the Arts, the Australian Broadcasting
Corporation, the Special Broadcasting Service, Commercial Radio Australia, the Community
Broadcasting Association of Australia and the Australian Competition and Consumer
Commission (ACCC).
Overview of the measures in the Bill
The digital radio measures included in the Bill are intended to help expedite the rollout of
digital radio to regional Australia by shortening legislatively prescribed timeframes
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associated with the rollout, and by removing unnecessary or redundant steps in, the rollout
process.
In particular, these proposed measures will:
remove the requirement that the ACMA give written notice of its intention to declare a
digital radio start-up day;
remove specific requirements in the BSA that the ACMA consult before preparing or
varying a digital radio channel plan, given the general consultation requirements in the
Legislation Act 2003;
shorten timeframes associated with the formation of eligible joint venture companies and
clarify the invitation and acceptance process for the formation of such companies;
shorten timeframes associated with the formation of digital community radio broadcasting
representative companies and clarify the invitation and acceptance process for the
formation of such companies;
shorten timeframes associated with issuing a foundation digital radio multiplex
transmitter (DRMT) licence in accordance with a price-based allocation system;
shorten timeframes associated with DRMT licensees giving the ACCC access
undertakings; and
clarify how excess multiplex capacity on foundation DRMT licences is determined.
The Bill also contains application provisions that specify when the proposed measures would
apply.
FINANCIAL IMPACT STATEMENT
The amendments in the Bill are not expected to have any direct financial impact on
Commonwealth revenue or expenditure.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Broadcasting Legislation Amendment (Digital Radio) Bill 2017
The Broadcasting Legislation Amendment (Digital Radio) Bill 2017 (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 (Human Rights
Act).
Overview of Bill
The general purpose of the Bill is to build on measures contained in the Broadcasting
Legislation Amendment (Digital Radio) Act 2016 to deliver a simpler, more flexible and
efficient process for the planning, licensing and rollout of digital radio in regional Australia.
The Bill would amend the Broadcasting Services Act 1992 and the Radiocommunications Act
1992 and contains a package of measures that would simplify the digital radio framework and
help expedite the rollout of digital radio to regional Australia by shortening legislatively
prescribed timeframes associated with the rollout, and removing unnecessary or redundant
steps in the digital radio rollout process.
The measures in the Bill arise from consultation with the key digital radio industry
stakeholders and recommendations contained in the Digital Radio Report following the
completion of statutory reviews of digital radio.
Human rights implications
Australia is a signatory to the International Covenant on Civil and Political Rights (the
ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and
the Convention on the Rights of Persons with Disabilities (the CRPD). These three
conventions are listed in section 3 of the Human Rights Act.
In particular, these conventions include the following rights:
Right of accessibility for people with a disability (Article 9 CRPD);
Right to equality and non-discrimination (Article 5 CRPD, Article 26 ICCPR);
Right to enjoy and benefit from science and culture (Article 15 ICESCR);
Right to freedom of opinion and expression (Article 19 ICCPR, Article 21 CRPD).
Rights for People with a Disability & Non-Discrimination Rights
The CRPD recognises the barriers that people with a disability may face in realising their
rights. The rights under all human rights treaties apply to everyone, including people with
disability. However, the CRPD applies human rights specifically to the context of people
with a disability. In addition, the ICCPR recognises a general principle of equality and non-
discrimination for all people.
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Article 9 of the CRPD provides that countries shall take appropriate measures to ensure that
persons with disabilities have access to information and communications, including
information and communications technologies as well as systems. The appropriate measures
should include the identification and elimination of obstacles and barriers to accessibility.
Article 5 of the CRPD also provides for the right to equality and non-discrimination, and
requires that State Parties recognise that all persons are equal before and under the law (also
refer to Article 26 of the ICCPR).
In addition, Article 21 of the CRPD sets out a number of obligations on Parties to ensure that
people with a disability can exercise the right to freedom of expression and opinion,
including the freedom to seek, receive and impart information and ideas, on an equal basis
with others (also refer to Article 19 of the ICCPR).
Right to Enjoy Science and Culture & Freedom of Expression
Article 15 of the ICESCR provides that countries shall recognise the right of all people to
enjoy and benefit from science and culture. This recognition extends to ensuring the rights of
everyone:
to take part in cultural life;
to enjoy the benefits of scientific progress and its applications;
to benefit from the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which a person is the author.
Article 19 of the ICCPR also sets out a general right of freedom to opinion and expression. In
particular, Article 19 provides that State Parties must take all appropriate measures to ensure
that everyone shall have the right to hold opinions without interference and have the right to
freedom of expression.
Effect of proposed measures on Human Rights
The Bill does not engage any of the applicable human rights and freedoms. This is because
the measures in the Bill only directly affect the Australian Communications and Media
Authority and corporate entities. To the extent that the measures in the Bill facilitate the
rollout of digital radio in regional Australia, any impact on citizens' rights to take part in
cultural life and enjoy the benefits of science or the rights of persons with disability to access
services is expected to be positive.
Conclusion
The Bill is compatible with human rights and freedoms as it does not engage any of the
applicable human rights, or otherwise raise any human rights issues.
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ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
ACCC Australian Competition and Consumer
Commission
ACMA: Australian Communications and Media
Authority
Bill: Broadcasting Legislation Amendment
(Digital Radio) Bill 2017
BSA: Broadcasting Services Act 1992
DRMT: Digital radio multiplex transmitter
Legislation Act Legislation Act 2003
Minister: Minister for Communications
Planning Committee: Digital Radio Planning Committee for
Regional Australia
Radcomms Act: Radiocommunications Act 1992
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NOTES ON CLAUSES
BROADCASTING LEGISLATION AMENDMENT (DIGITAL RADIO) BILL 2017
Clause 1 - Short title
Clause 1 provides for the short title for the Act. When enacted, the Bill is to be cited as the
Broadcasting Legislation Amendment (Digital Radio) Act 2017 (the Act).
Clause 2 - Commencement
Clause 2 provides for the commencement of the provisions in the Act. The table in clause 2
specifies that the Act in its entirety commences on the day the Act receives the Royal Assent.
Clause 3 - Schedules
Clause 3 is a machinery provision that provides that legislation that is specified in a Schedule
to the Act is amended or repealed as set out in the applicable items in the Schedule, and any
other item in a Schedule has effect according to its terms.
There is one Schedule to the Act, comprising two Parts.
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Schedule 1--Digital radio
Part 1--Amendments
Part 1 of Schedule 1 contains amendments to the BSA and the Radcomms Act.
Broadcasting Services Act 1992
Item 1 - Subsections 8AC(6) and (7)
Item 1 repeals subsections 8AC(6) and (7).
Subsection 8AC(6) requires the ACMA to give at least 30 days' notice of its intention to
declare a digital radio start-up day under subsection 8AC(1). A licence area's digital radio
start-up day is the day on which relevant licensees are authorised to provide digital radio
services in that licence area. Subsection 8AC(7) provides that such a notice, which must be
published in the ACMA's website, is not a legislative instrument.
The requirement for the ACMA to provide advance written notice of its intention to declare
the digital radio start-up day for a licence area is an unnecessary step in the digital radio
rollout process and creates inefficiency for stakeholders in the digital radio licensing and
planning process. Industry members will be able to receive information about the digital radio
start-up day through membership of the eligible joint venture company holding the relevant
DRMT licence or through their participation in the Planning Committee. Removing this
requirement will also not negatively impact members of the public, as industry stakeholders
are likely to inform listeners in an area about when a digital radio service will commence.
Radiocommunications Act 1992
Item 2 - Paragraph 9C(1)(d)
Item 3 - After paragraph 9C(1)(d)
Items 2 and 3 amend subsection 9C(1), which defines, and provides for the formation of, a
digital community radio broadcasting representative company for a particular designated
BSA radio area.
Under paragraph 9C(1)(c), before the company was formed, the promoters of the company
must have invited each incumbent digital community radio broadcasting licensee for the
designated BSA radio area to subscribe for shares in the company. Under paragraph 9C(1)(d),
the invitations referred to in paragraph 9C(1)(c) must be published on the ACMA's website
and be open for a period of at least 90 days beginning on or after the commencement of
section 9C.
Item 3 inserts a new paragraph 9C(1)(da) which has the effect of shortening the period during
which invitations must be open. Under new paragraph 9C(1)(da), the invitations referred to in
paragraph 9C(1)(c) must be open for a period of at least 60 days. That period can be further
shortened where all invitees respond to the invitations within the 60 day period, so the
applicable period during which invitations must be open would end on the last occasion the
promoters received a response. This change will expedite the formation of a digital
community radio broadcasting representative company, particularly in circumstances where
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each incumbent digital community radio broadcasting licensee responds to the invitation
prior to the expiry of the 60 day period.
The requirement for the invitations to be published on the ACMA's website remains
unchanged and is contained in paragraph 9C(1)(d), as amended by item 2 consequentially to
the amendment in item 3.
Item 4 - Subsections 44A(5) and (7)
Item 4 repeals subsections 44A(5) and (7).
Section 44A provides for the preparation of digital radio channel plans by the ACMA.
Subsections 44A(5) and (7) impose specific public consultation requirements for draft digital
radio channel plans and draft variations to digital radio channel plans.
As digital radio channel plans and variations to digital radio channel plans are legislative
instruments (subsections 44A(1) and (6)), the general consultation requirements for
legislative instruments in Chapter 3 of the Legislation Act also apply. The Legislation Act
also requires explanatory statements to legislative instruments to include a description of
consultation undertaken, or an explanation of why no consultation was undertaken.
Explanatory statements are available to the public on the Federal Register of Legislation and
are tabled in Parliament.
Those general requirements are sufficient to ensure that that the ACMA undertakes
appropriate, and reasonably practicable, consultation when preparing or varying digital radio
channel plans. Therefore, it is proposed to remove the separate, but duplicate, consultation
requirement in subsections 44A(5) and (7) of the Radcomms Act.
Item 5 - Paragraph 102C(3)(a)
Item 6 - Paragraph 102C(5)(c)
Item 7 - After paragraph 102C(5)(c)
Item 8 - After subsection 102C(7)
Items 5 to 8 amend section 102C, which sets out the circumstances in which the ACMA can
issue a category 1 DRMT licence for a designated BSA radio area. Category 1 DRMT
licences are for one or more multiplex transmitters used for transmitting digital commercial
radio broadcasting services and digital community radio broadcasting services in a designated
BSA radio area (see section 5 of the Radcomms Act).
Broadly, the ACMA can issue a foundation category 1 DRMT licence:
to an eligible joint venture company with payment of the relevant application fee
(subsection 102C(2)); or
in accordance with a price-based allocation system determined under section 106 if, after
inviting applications from eligible joint venture companies, the ACMA did not receive
any applications or refused to issue the licence under section 100 (paragraph 102C(3)(b)).
In addition, before issuing a licence in accordance with a price-based allocation system,
the ACMA must, by notice on its website at least 150 days before the issue of the licence,
invite applications from eligible joint venture companies for the issue of the licence
(paragraph 102C(3)(a)).
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Subsection 102C(5) defines, and provides for the formation of, an eligible joint venture
company. Under paragraph 102C(5)(a), before the company was formed, the promoters of the
company must have invited each incumbent digital commercial radio broadcasting licensee
and the digital community radio broadcasting representative company (if there is one) to
subscribe for shares in the company. Under paragraph 102C(5)(c), the invitations must be
published on the ACMA's website and be open for a period of at least 120 days beginning on
or after the commencement of section 102C.
The amendment in item 5 shortens the timeframe in paragraph 102C(3)(a) so the relevant
notice, before the ACMA can issue a licence in accordance with a price-based allocation
system, must be published by the ACMA at least 120 days before the issue of the licence.
This is intended to reduce delays in issuing a foundation category 1 DRMT licence through
price-based allocation.
Item 7 inserts a new paragraph 102C(5)(ca), which has the effect of shortening the period
during which invitations mentioned in paragraph 102C(5)(a) must be open. Under new
paragraph 102C(5)(ca), the invitations must be open for a period of at least 80 days. That
period can be further shortened where all invitees respond to the invitations within the 80 day
period, so the applicable period during which invitations must be open would end on the last
occasion the promoters received a response. This change will expedite the formation of an
eligible joint venture company, particularly in circumstances where each invitee responds to
the invitation prior to the expiry of the 80 day period.
The requirement for the invitations to be published on the ACMA's website remains
unchanged and is contained in paragraph 102C(5)(c), as amended by item 6 consequentially
to the amendment in item 7.
Item 8 inserts new subsections 102C(7A) to (7D).
New subsection 102C(7A) empowers the ACMA, by written notice, to require an eligible
joint venture company that has applied for a foundation category 1 DRMT licence to give to
the ACMA a copy of each of the responses it received to the invitations referred to in
paragraph 102C(5)(a). The company must do so within the period specified in the notice.
This amendment is made so the ACMA can be satisfied that the company is an eligible
venture company as required under subsection 102C(5), and that the invitation and
acceptance processes are valid in that they occurred in accordance with the legislative
provisions and within a validly shortened period (new paragraph 102C(5)(ca)). If the
company breaches the requirement to provide copies of the responses, the ACMA may, by
written notice, refuse to consider, or refuse to take any action or any further action in relation
to the application for the foundation category 1 DRMT licence (new subsection 102C(7B)).
Similarly, if the application for a foundation category 1 DRMT licence includes a statement
that a particular company is a digital community radio broadcasting representative company,
new subsection 102C(7C) empowers the ACMA, by written notice, to require the digital
community radio broadcasting representative company to give the ACMA a copy of each of
the responses to the invitations referred to in paragraph 9C(1)(c). The ACMA must also give
a copy of the notice to the applicant. This amendment is made so the ACMA can be satisfied
that the company is a digital community radio broadcasting representative company as
required under section 9C (as amended by this Bill) and that the invitation and acceptance
processes are valid. The company must provide copies of the responses within the period
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specified in the notice. If the company breaches the requirement to provide copies of the
responses, the ACMA may, by written notice to the applicant, refuse to consider, or refuse to
take any action or any further action in relation to the application for the foundation category
1 DRMT licence (new subsection 102C(7D)).
Item 9 - Paragraph 102D(3)(a)
Item 10 - Paragraph 102D(5)(c)
Item 11 - After paragraph 102D(5)(c)
Item 12 - After subsection 102D(7)
Items 9 to 12 amend section 102D, which sets out the circumstances in which the ACMA can
issue a category 2 DRMT licence for a designated BSA radio area. Category 2 DRMT
licences are for one or more multiplex transmitters used for transmitting digital commercial
radio broadcasting services, digital community radio broadcasting services and digital
national radio broadcasting services in a designated BSA radio area (see section 5 of the
Radcomms Act).
Section 102D operates in a similar way to section 102C. Under section 102D, the ACMA can
issue a foundation category 2 DRMT licence:
to an eligible joint venture company with payment of the relevant application fee
(subsection 102D(2)); or
in accordance with a price-based allocation system determined under section 106 if, after
inviting applications from eligible joint venture companies, the ACMA did not receive
any applications or refused to issue the licence under section 100 (paragraph 102D(3)(b)).
In addition, before issuing a licence in accordance with a price-based allocation system,
the ACMA must, by notice published on its website at least 150 days before the issue of
the licence, invite applications from eligible joint venture companies for the issue of the
licence (paragraph 102D(3)(a)).
Subsection 102D(5) defines, and provides for the formation of, an eligible joint venture
company. Under paragraph 102D(5)(a), before the company was formed, the promoters of
the company must have invited each incumbent digital commercial radio broadcasting
licensee, the digital community radio broadcasting representative company (if there is one)
and each national broadcaster to subscribe for shares in the company. Under paragraph
102D(5)(c), the invitations must be published on the ACMA's website and be open for a
period of at least 120 days beginning on or after the commencement of section 102C.
The amendment in item 9 shortens the timeframe in paragraph 102D(3)(a) so the relevant
notice, before the ACMA can issue a licence in accordance with a price-based allocation
system, must be published by the ACMA at least 120 days before the issue of the licence.
The purpose of this change is to reduce delays in issuing a foundation category 2 DRMT
licence through price-based allocation.
Item 11 inserts a new paragraph 102D(5)(ca), which has the effect of shortening the period
during which invitations mentioned in paragraph 102D(5)(a) must be open. Under new
paragraph 102D(5)(ca), the invitations must be open for a period of at least 80 days. That
period can be further shortened where all invitees respond to the invitations within the 80
days, so the applicable period during which invitations must be open would end on the last
occasion the promoters received a response. This change will expedite the formation of an
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eligible joint venture company, particularly in circumstances where each invitee responds to
the invitation prior to the expiry of the 80 day period.
The requirement for the invitations to be published on the ACMA's website remains
unchanged and is contained in paragraph 102D(5)(c), as amended by item 10 consequentially
to the amendment in item 11.
Item 12 inserts new sections 102D(7A) to (7D). These new provisions operate in a similar
way to new sections 102C(7A) to (7D), noted above in item 8.
Item 13 - Subsection 118ND(1)
Item 13 amends subsection 118ND(1) to reduce the timeframe within which a DRMT
licensee must give the ACCC an access undertaking relating to the relevant access
obligations. As a result of this amendment, a licensee will be required to give the ACCC an
access undertaking within 50 days after the issue of the licence, rather than within three
months after the issue of the licence. This amendment reflects the experience gained by
industry in the establishment of digital radio services in metropolitan areas. Reducing the
timeframe in which a DRMT licensee is required to provide an access undertaking
implements further efficiencies in the digital radio regulatory framework.
Item 14 - At the end of paragraph 118NT(1)(b)
Item 14 inserts new subparagraph 118NT(1)(b)(iii).
Section 118NT deals with how excess multiplex capacity is calculated and distributed to
content service providers on a foundation DRMT licence for a designated BSA radio area.
Under paragraph 118NT(1)(b), excess capacity is available if, at any time after the 12-month
period beginning on the digital radio start-up day for the designated BSA radio area:
the multiplex capacity available under the foundation DRMT licence exceeds the
aggregate of the standard access entitlements for incumbent digital commercial radio
broadcasting licensees and national broadcasters (see subsection 118NQ(2) and
subsection 118NS(2)) as well as capacity reserved for digital community radio
broadcasting licensees (see subsection 118NR(2)); and
an access undertaking is in force in relation to the licence.
Under subsection 118NT(3), if there is excess capacity available as per the test available in
paragraph 118NT(1)(b), the DRMT licensee may proceed to ascertain the level of demand for
that excess capacity from content service providers who are entitled to provide content
services in the designated BSA radio area.
The effect of new subparagraph 118NT(1)(b)(iii) is that multiplex capacity relating to any
excess-capacity access entitlements that have previously come into existence under
subsections 118NT(4) or (7) must be taken into account when determining whether any
excess capacity exists under paragraph 118NT(1)(b). This amendment is intended to clarify
that existing excess-capacity access entitlements allocated to content providers are considered
when determining whether any further excess capacity is available for allocation. This will
provide certainty to content providers on the status of their existing excess-capacity access
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entitlements on foundation DRMT licences, as well as to other parties seeking access to
available excess capacity.
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Part 2--Application provisions
Part 2 of Schedule 1 contains application provisions for certain amendments contained in Part
1 to the Schedule. These application provisions ensure that the relevant amendments operate
prospectively.
Item 15 - Application of amendments of the Broadcasting Services Act 1992
Item 15 provides that the repeal of subsections 8AC(6) and (7) of the BSA applies in relation
to a declaration made after the commencement of this item.
Item 16 - Application of amendments of the Radiocommunications Act 1992
Item 16 provides that:
the amendments of subsection 9C(1) of the Radcomms Act apply in relation to an
invitation given after the commencement of this item;
the amendment of paragraph 102C(3)(a) of the Radcomms Act applies in relation to a
licence issued after the commencement of this item;
the amendments of subsection 102C(5) of the Radcomms Act apply in relation to an
invitation given after the commencement of this item;
new subsections 102C(7A), (7B), (7C) and (7D) of the Radcomms Act apply in relation
to an invitation given after the commencement of this item;
the amendment of paragraph 102D(3)(a) of the Radcomms Act applies in relation to a
licence issued after the commencement of this item;
the amendments of subsection 102D(5) of the Radcomms Act apply in relation to an
invitation given after the commencement of this item;
new subsections 102D(7A), (7B), (7C) and (7D) of the Radcomms Act apply in relation
to an invitation given after the commencement of this item;
the amendment of subsection 118ND(1) of the Radcomms Act applies in relation to a
licence issued after the commencement of this item.
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