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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
BROADCASTING LEGISLATION AMENDMENT (DIGITAL TELEVISION SWITCH-OVER) BILL
2008
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Broadband, Communications
and the Digital Economy, Senator the Honourable Stephen Conroy)
BROADCASTING LEGISLATION AMENDMENT (DIGITAL TELEVISION SWITCH-OVER) BILL
2008
OUTLINE
The Broadcasting Legislation Amendment (Digital Television Switch-over)
Bill 2008 (the Bill) amends the Broadcasting Services Act 1992 (BSA) to
implement the Government's policies to achieve a switch-over to digital
television by 31 December 2013.
The Bill will allow the Government to determine a staggered, region-by-
region digital television switch-over timetable. It will also amend the
timing of two statutory reviews required under the BSA.
At present, the dates for switch-over are set via a transitional period,
known as the "simulcast period", during which national and commercial
television broadcasters are required to transmit simultaneously in analog
and standard definition digital mode. At the end of the simulcast period
analog transmissions will cease and digital-only transmissions will
commence. The simulcast period is set to finish in metropolitan licence
areas on 31 December 2009 and in non-remote regional licence areas by 31
March 2011 or 31 December 2011 (depending on the licence area).
Television licence areas in many regional areas have been enlarged, by
'aggregating' previously localised one-station licences, to enable the
provision of a greater number of commercial television broadcasting
services. For a more effective switch-over process it may be appropriate to
base a switch-over timetable on geographical areas smaller than these
larger aggregated television licence areas. This would enable local
geographic, technical and market circumstances to be considered when
determining dates for analog switch-off.
The proposed amendments to the BSA by the Bill will allow the Minister for
Broadband, Communications and the Digital Economy (the Minister) to:
. determine, by legislative instrument, a timetable for the switch-off
of analog television transmission in "local market areas" (enabling
the setting of different switch-over dates for different geographic
areas within a single licence area);
. vary a switch-over date for a particular local market area to a date
up to three months before or after the date originally determined
(giving the Government the flexibility to identify a six-month window
for switch-over in a particular local market area);
. determine, by legislative instrument, the length of the simulcast
period for metropolitan and non-remote regional licence areas
(currently the simulcast period for such licence areas can be
extended, by Regulations made under the BSA, but cannot be
shortened); and
. vary the date of the end of the simulcast period for a particular
licence area to a date up to three months before or after the date
originally determined.
Any part of a licence area that is not determined by the Minister to be a
"local market area" will switch-over at the end of the simulcast period.
The Bill provides for a switch-over date for a particular local market area
or licence area to be put back more than three months, but only in
exceptional circumstances where the determined switch-over date would cause
significant technical or engineering difficulties to one or more commercial
or national broadcasters in that area, and those circumstances could not
have reasonably been foreseen by the broadcaster six months before the
switch-over date.
The Bill also provides for the Minister to determine minimum criteria for
the readiness of a local market area to switch off analogue transmissions.
Not less than six months prior to the determined switch-over date for a
local market area, switch-over readiness for that local market area will be
assessed against the determined minimum criteria. If the report discloses
that the minimum criteria have not been met, the Minister must publish a
plan to ensure that:
. the criteria are met by the determined date, or
. analogue switch-off is delayed in that local market area until the
criteria are met, or
. all broadcasters and the Digital Switchover Taskforce notify the
Minister of their agreement that the switch-over date not be varied.
The Bill will confirm 1 January 2014 as the date by which transmission of
analog signals will have ceased, except in the exceptional circumstances
mentioned above.
The Australian Communications and Media Authority (ACMA) will retain its
responsibilities and powers in relation to digital television switch-over
for remote licence areas. However, a determination by the ACMA about the
duration of a simulcast period for a remote licence area would be subject
to the end date of 31 December 2013, except in exceptional circumstances.
The Bill also requires the Minister to report to each House of Parliament
identifying and rectifying transmission infrastructure issues that would
otherwise prevent transmission of digital free-to-air television achieving
the same level of coverage and potential reception quality as was achieved
by the transmission of those services in analog mode, and the local market
areas and regions where transmission issues have been identified.
It will be necessary for the ACMA to vary the Commercial Television
Conversion Scheme 1999 and the National Television Conversion Scheme 1999
as a result of these amendments. Due to the technical nature of these
changes, and the fact that prior public consultation has occurred, the Bill
exempts the ACMA from consultation requirements regarding variations made
in connection with the amendments made by the Bill.
The Bill also amends the timing of two statutory reviews in the BSA to
reflect the Government's policy that switch-over will be completed before 1
January 2014. These reviews are:
. a review under subsection 35A(1) of the BSA into the allocation of
new commercial television broadcasting licences, and
. a review under subclause 60C(1) of Schedule 4 to the BSA into content
and captioning rules applicable to multi-channelled commercial
television broadcasting services.
FINANCIAL IMPACT STATEMENT
This Bill is expected to have minimal impact on Commonwealth expenditure or
revenue.
ABBREVIATIONS
The following abbreviations are used in this explanatory memorandum:
ACMA: Australian Communications and Media Authority
Bill: Broadcasting Legislation Amendment (Digital Television Switch-over)
Bill 2008
BSA: Broadcasting Services Act 1992
LIA: Legislative Instruments Act 2003
Minister: Minister for Broadband, Communications and the Digital Economy
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides for the Bill, when enacted, to be cited as the
Broadcasting Legislation Amendment (Digital Television Switch-over) Act
2008.
Clause 2 - Commencement
Clause 2 provides that each provision of the Bill specified in column 1 of
the table in clause 2 will commence, or will be taken to have commenced, on
the day or at the time specified in column 2 of that table.
Item 1 of the table provides that clauses 1 to 3, and anything in the Bill
that is not covered in the table, will commence on the day on which the
Bill receives the Royal Assent.
Item 2 of the table provides that Schedule 1 to the Bill will commence the
day after the Bill receives the Royal Assent. Schedule 1 to the Bill would
amend provisions in the BSA that require the Minister to cause certain
reviews to be conducted. The reviews relate to the allocation of new
commercial television broadcasting licences and to the content and
captioning rules applicable to multi-channelled commercial television
broadcasting services.
Item 3 of the table in Clause 2 provides that Schedule 2 to the Bill will
commence on the 60th day after the day on which the Bill receives the Royal
Assent. This 60 day lag period is intended to provide the ACMA with
sufficient time to amend the Commercial Television Conversion Scheme 1999
and the National Television Conversion Scheme 1999 to take account of
amendments to the BSA made by Schedule 2 to the Bill.
Clause 3 - Schedule(s)
Clause 3 provides that each Act specified in a Schedule to the Bill is
amended or repealed as set out in the Schedule concerned. There are two
Schedules to the Bill, both of which provide for amendments to the BSA.
Schedule 1 - Amendments relating to reviews
Item 1 - Subsection 6(1) (definition of earliest digital television switch-
over day)
Item 1 of Schedule 1 would repeal the definition of "earliest digital
television switch-over day" in subsection 6(1) of the BSA. The repeal is a
consequence of the amendments made by items 2 and 3 of Schedule 1 to the
Bill, discussed below, which remove the only two examples of the phrase
"earliest digital television switch-over day" (apart from the definition
itself) from the BSA.
Item 2 - Subsection 35A(1)
Item 2 would amend subsection 35A(1) of the BSA to replace "Before the
earliest digital television switch-over day" with "Before 1 January 2012".
Subsection 35A(1) requires the Minister to cause a review to be conducted
into allocation of new commercial television broadcasting licences.
Specifically, the review must be about whether one or more commercial
television broadcasting licences should be allocated under section 36 of
the BSA for a particular area or areas and, if so, what variations should
be made to licence area plans in force under section 26.
Currently, the Minister must cause the review to be conducted before the
"earliest digital television switch-over date", which means the earliest
day on which a simulcast period (within the meaning of Schedule 4 to the
BSA) ends. The Government wishes the timing of the review to reflect the
Government's policy to complete switch-over before 1 January 2014.
Accordingly, item 2 would specify 1 January 2012 as the date by which the
Minister must cause the review to be conducted.
Item 3 - Subclause 60C(1) of Schedule 4
Item 3 would amend subclause 60C(1) of Schedule 4 to the BSA to replace "At
least one year before the earliest digital television switch-over day" with
"Before 1 January 2010".
Subclause 60C(1) of Schedule 4 to the BSA is another provision that
requires the Minister to cause a review to be conducted. In this case the
review must consider the operation of Part 9 of the BSA, and clause 38 of
Schedule 4 to the BSA, as they apply to standard and high definition multi-
channelled commercial television broadcasting services. Part 9 contains
rules dealing with program standards (eg standards for children's programs
and Australian content) and clause 38 of Schedule 4 contains rules relating
to the provision of captioning services.
The Government wishes the timing of the review required under subclause
60C(1) of Schedule 4 to the BSA to reflect the Government's policy to
complete switch-over before 1 January 2014. Accordingly, item 3 would
specify 1 January 2010 as the date by which the Minister must cause the
review to be conducted.
Schedule 2 - Other amendments
Item 1 - Paragraph 7(1)(m) of Schedule 2
Item 1 of Schedule 2 to the Bill would amend paragraph 7(1)(m) of Schedule
2 to the BSA, which is a standard licence condition applicable to all
commercial television broadcasting licences. The licence condition
provides that where there is a simulcast period for a particular licence
area (the meaning of 'simulcast period' is explained below), a licensee
must not broadcast a program in standard definition digital mode in the
licence area without providing a corresponding analog broadcast.
A simulcast period, broadly, is a transitional period relating to a
particular area throughout which national broadcasters and commercial
television broadcast licensees operating in the area must transmit
simultaneously in both analog and standard definition digital mode (see
Division 7 of Part A and Division 6 of Part B of the Commercial Television
Conversion Scheme 1999, Division 6 of Part A and Division 6 of Part B of
the National Television Conversion Scheme 1999).
The proposed amendment would carve out "digital-only local market areas"
(see item 4 below) from the operation of the standard licence condition in
paragraph 7(1)(m). In other words, the prohibition on commercial
television broadcasting licensees broadcasting programs in digital mode
without a corresponding analog version will not apply in any part of a
licence area that has been determined by the Minister to be a digital-only
local market area. It would not make sense for the condition in paragraph
7(1)(m) to apply to digital-only local market areas because there will not
be any analog transmissions in such areas.
Items 2 and 3 - Clause 2 of Schedule 4
Items 2 and 3 of Schedule 2 to the Bill would insert definitions of
"digital-only local market area" and "local market area", respectively,
into clause 2 of Schedule 4 to the BSA. Both definitions refer to proposed
new clause 5F (see item 4 below).
Item 3A - Clause 2 of Schedule 4
Item 3A would insert the definition of "minimum analog switch-off readiness
criteria" to be the meaning given by clause 5G (see Item 4A below).
Item 4 - At the end of Part 1 of Schedule 4
Item 4 would insert a new clause 5F ("Local market areas and digital-only
local market areas") at the end of Part 1 of Schedule 4 to the BSA.
Proposed new clause 5F is central to the Bill, and to the ability of the
Government to provide for a region by region switch-over based on
geographical areas other than licence areas. The concepts and regulatory
mechanisms introduced by clause 5F are intended to allow multiple switch-
over times within a single licence or coverage area, and therefore to
facilitate a timetable for switch-over that recognises that a single
licence area may contain a variety of local geographic, technical and
market circumstances. Any part of a licence area that is not determined to
be a local market will switch-over at the end of the simulcast period in
accordance with proposed clause 6A (see item 12).
Subclause 5F(1) would provide for the Minister, by legislative instrument,
to determine that a specified area is a "local market area" (5F(1)(a)) and
that the area will become a "digital-only local market area" at a specified
time (5F(1)(b)).
A local market area must be wholly included within a licence area (5F(2)),
and a determination under subclause 5F(1) is irrevocable (subclause 5F(4)).
This is intended to provide certainty for industry, in planning for
digital switch-over, and also for consumers, in understanding by when they
must obtain equipment suitable to receive digital television transmissions.
The Minister must consult the ACMA before making or varying a
determination under subclause 5F(1) (subclause 5F(11)).
A time specified for a local market area to become a digital-only local
market area must fall within the simulcast period for the licence area
concerned (subclause 5F(3)). A time specified later than the end of the
simulcast period for the licence area concerned would make the
determination inconsistent with the relevant simulcast period. In other
words, it would not make sense for a local market area to become a digital-
only local market area after the end of the simulcast period, because the
whole licence area would have already switched to digital-only
transmission.
Subclauses 5F(5) - (10) deal with the Minister's ability to vary a
subclause 5F(1) determination. Subclauses 5F(5) and (6) provide that the
Minister may vary a subclause 5F(1) determination but must not do so
retrospectively. A retrospective variation of a determination would place
licensees in inadvertent breach of their obligations under the BSA.
Subclause 5F(7) provides that the time specified in a varied subclause
5F(1) determination must not be earlier than 3 months before the time
specified in the original determination. In other words, once the Minister
has determined the date upon which a local market area will become a
"digital-only local market area", the Minister will be prevented from
bringing that date forward by more than three months.
Subclause 5F(8) operates in a similar way to 5F(7) except that it sets a
limit on how far back the date for switch-over specified in a varied
determination may be moved. The time specified in a subclause 5F(1)
determination as varied must not be later than 3 months after the time
specified in the original determination. Therefore, once the Minister has
determined for the first time the date upon which a local market area will
become a "digital-only local market area", the Minister will be prevented
from pushing that date back by more than three months, except in the
limited circumstances set out in subclause 5F(9) discussed below.
The combined effect of subclauses 5F(7) and (8) would restrict the
Minister's ability to vary a determination setting the date on which a
local market area become a digital-only local market to a 6 month window
(that is, 3 months either side of the date specified in the original
determination). This restriction is intended to strike a balance between,
on the one hand, providing sufficient flexibility to take account of
changing circumstances and, on the other, providing an appropriate level of
certainty for industry and consumers.
The following is a hypothetical example of how the scheme would work. The
Minister might determine the date upon which a particular local market area
will become a digital-only local market area to be 1 July 2011. At a time
closer to switch-over in that area the Minister might vary the switch-over
date (for example from 1 July 2011 to 31 May 2011) in response to advice
from the Digital Switchover Taskforce and the ACMA that the switch-over
process is going well and the area will be ready to switch-off analog
towards the beginning of the six month window.
Subclause 5F(9) would set out particular circumstances in which the
restriction in subclause 5F(8) (ie on the Minister's ability to vary a
determination to defer the switch-over date for a local market area by a
maximum of three months) would not apply. This exception is intended to
safeguard against the possibility of significant and unforeseen technical
difficulties. Subclause 5F(8) would not apply if:
. the time for switch-over specified in the determination would be
likely to result in significant difficulties of a technical or
engineering nature for a commercial television broadcasting licensee
operating in the licence area concerned or for a national
broadcaster; and
. those difficulties could not reasonably have been foreseen by the
licensee or broadcaster as at 6 months before the time specified for
switch-over in the determination.
If those tests are satisfied then the Minister may vary the instrument to
push back the switch-over date beyond the 3 month window that would
otherwise result from the operation of subclause 5F(8). An example of when
the exception in subclause 5F(9) might apply is a lightning strike that
destroyed or damaged a transmission tower such that it could not be
repaired or replaced in time to meet the switch-over timetable. The
exception is not intended to cover, for example, known transmission and
reception issues which are expected to be addressed as part of the overall
switch-over program.
Subclause 5F(10) provides that subclause 5F(5), which explicitly states
that the Minister may vary a subclause 5F(1) determination, does not limit
the application of subsection 33(3) of the Acts Interpretation Act 1901 to
other instruments made under the Act. Subsection 33(3) deals with the
proper construction of powers to make these instruments.
Item 4A - At the end of Part 1 of Schedule 4
Item 4A would insert a new clause 5G ("Minimum analog switch-off readiness
criteria") at the end of Part 1 of Schedule 4 to the BSA.
Proposed new clause 5G mandates minimum readiness criteria for switch-off
of the analog signal in local market areas. It also outlines requirements
for reporting on these criteria and planning obligations if criteria are
not met.
Subclause 5G(1) requires the Minister to, by legislative instrument,
determine minimum analog switch-off readiness criteria. This must be done
within six months of the day on which the Act receives royal assent
(subclause 5G(2)).
Subclause 5G(3) provides that the Minister's minimum analog switch-off
readiness criteria must allow television broadcasting services in each
local market area to be objectively assessed against three key objectives.
First, transmission of broadcasting services should cover the same areas
with the same quality after switchover to digital as before (paragraph
5G(3)(a)). Second, all households which received free-to-air television
coverage in analog mode should be able to receive the same coverage after
switchover (paragraph 5G(3)(b)). Third, adequate measures have been taken
to assist household readiness for analog switchover (paragraph 5G(3)(c)).
This would be assessed by household take-up of equipment capable of
receiving digital terrestrial free to air television and awareness of
analog switch-off and of methods to convert.
Subclause 5G(4) requires the Minister to cause a report to be prepared
assessing the local market area (as determined by the Minister under
proposed paragraph 5F(1)(a)) against the minimum analog switch-off
readiness criteria (as determined by the Minister under subclause 5G(1)).
According to subclause 5G(5) this report must be published on the
Department's website at least six months prior to the time determined for
that area to switch off its analog signal.
Regarding this report, if the readiness criteria are not met, subclause
5G(6) requires the Minister to cause to publish a plan within 30 days of
the report being published. The subclause gives three forms the plan may
take:
1. The plan ensures that the readiness criteria are met by the time
determined for the analog switch-off in that area (paragraph
5G(6)(a)); or
2. The plan extends the time determined for the analog switch-off in that
area until readiness criteria are met; or (paragraph 5G(6)(b)); or
3. Providing free-to-air broadcasting licensees for the area and the
Digital Switchover Taskforce agree, the plan does not vary the date of
switch-over (paragraph 5G(6)(c)).
Item 4B At the end of Part 1 of Schedule 4
Item 4B would insert a new clause 5H ("Reports on transmission of
blackspots") at the end of Part 1 of Schedule 4 to the BSA.
Proposed clause 5H requires the Minister to tender a report on digital
transmission issues to each House of Parliament on the first day of each
sitting period until 1 September 2014. This report would outline action
taken to identify and rectify transmission issues that would prevent
households from receiving digital reception equivalent to their analog
reception (paragraph 5H(a)). Where issues are identified, the report would
also detail how many households would be affected (paragraph 5H(b)).
Item 5 - Subparagraph 6(3)(c)(ii) of Schedule 4
Clause 6 of Schedule 4 to the BSA sets out the framework for the making by
the ACMA of a scheme for the conversion of commercial television
broadcasting services from analog to digital mode. The ACMA has made a
scheme as required, the Commercial Television Conversion Scheme 1999.
Subclause 6(3) sets out the policy objectives to which the scheme must be
directed. One objective, specified in paragraph 6(3)(c), is that there
should be a transitional period known as the simulcast period.
Subparagraph (ii) provides that the simulcast period should run for 8 years
or for such longer period as is prescribed (ie prescribed by Regulation).
Item 5 of Schedule 2 to the Bill would repeal subparagraph 6(3)(c)(ii) of
Schedule 4 to the BSA. As a consequence, the Broadcasting Services
(Extension of Simulcast Period) Regulations 2007 will also be repealed.
Item 5 would substitute the subparagraph with a provision stating that the
simulcast period for a metropolitan licence area should run for 9 years, or
such other period as is determined by the Minister under proposed subclause
6A(1). It would also insert a new subparagraph 6(3)(c)(iia) stating that
the simulcast period for a regional licence area should run for 8 years or
such other period as is determined by the Minister under proposed subclause
6A(2). Proposed subclauses 6A(1) and (2) are discussed in item 12 below.
The change from 8 to 9 years duration for the simulcast period in
metropolitan licence areas reflects the Government's temporary extension of
the simulcast period under existing legislation to 31 December 2009,
achieved by the Broadcasting Services (Extension of Simulcast Period)
Regulations 2007, which was intended to allow time for the Digital
Switchover Taskforce and industry to develop a detailed switch-over
timetable.
Enabling the Minister to determine the length of the simulcast period for a
particular licence area, rather than for that length to be prescribed by
Regulations, would provide increased flexibility to enable a staggered
region-by-region switch-over. The current situation, where the length of
the simulcast period can be extended by Regulations but cannot be
shortened, limits the ability of the Government to respond quickly to
specific issues relating to digital switch-over in local areas.
Item 6 - Paragraph 6(3)(c) of Schedule 4
Item 6 of Schedule 2 to the Bill would amend the BSA to prevent paragraph
6(3)(c) of Schedule 4 applying to any part of a licence area determined by
the Minister to be a digital-only local market area. The proposed
amendment is one of a number of similar amendments to subclause 6(3) of
Schedule 4 designed to facilitate the setting of different analog switch
off dates in different parts of a single licence area.
As discussed in item 5 above, subclause 6(3) of Schedule 4 to the BSA sets
out the policy objectives to be pursued by the commercial television
conversion scheme made by the ACMA. One such objective is that there
should be a transitional period for a licence area, known as the simulcast
period, during which commercial television broadcast licensees must
transmit in both analog and standard definition digital mode.
The effect of the amendment made by this item 6 would be to carve out
"digital-only local market areas" (see item 4) from the policy objective
specified in paragraph 6(3)(c). The objective to be pursued by the
commercial television conversion scheme, therefore, would be to require
commercial television broadcast licensees operating in a licence area
during the simulcast period to transmit simultaneously in analog and
digital mode, except in those parts of the licence area specified as
digital-only local market areas.
Item 7 - Paragraphs 6(3)(f) and (g) of Schedule 4
Item 7 of Schedule 2 to the Bill would amend the BSA to prevent paragraphs
6(3)(f) and 6(3)(g) of Schedule 4 from applying to any part of a licence
area that has been determined by the Minister to be a digital-only local
market area.
Subclause 6(3) of Schedule 4 to the BSA sets out objectives to be pursued
by the commercial television conversion scheme made by the ACMA. Paragraph
6(3)(f) specifies the objective that, during the simulcast period for a
licence area, the transmission of a commercial television broadcasting
service in standard definition digital mode in a licence area should
achieve the same level of coverage and potential reception quality as the
transmission in analog mode in that area. Paragraph 6(3)(g) specifies
that, as far as is practicable, there should be co-location of the
transmitters used for the digital and analog services within a licence
area.
The effect of the amendment made by this item 7 would be to carve out
"digital-only local market areas" (see item 4) from the policy objectives
specified in paragraphs 6(3)(f) and (g). In other words, the commercial
television conversion scheme need only pursue those objectives in so much
of a licence area as is not a digital-only local market area. The
amendment would facilitate the setting of different analog switch off dates
in different parts of a single licence area.
Item 8 - After paragraph 6(3)(g) of Schedule 4
Item 8 of Schedule 2 to the Bill would insert a new paragraph into
subclause 6(3) of Schedule 4 to the BSA (which sets out the policy
objectives to be pursued by the commercial television conversion scheme
made by the ACMA).
The new policy objective would be that, during the simulcast period for a
licence area, no commercial television broadcasting services should be
transmitted in analog mode in any part of the area that has been determined
by the Minister to be a digital-only local market area. This amendment
will ensure that the commercial television conversion scheme reflects the
policy that analog transmission should cease at the point at which an area
becomes a digital-only local market area.
Item 9 - Paragraph 6(3)(j) of Schedule 4
Item 9 of Schedule 2 to the Bill would amend the BSA to prevent paragraph
6(3)(j) of Schedule 4 from applying to any part of a licence area that has
been determined by the Minister to be a digital-only local market area.
Subclause 6(3) of Schedule 4 to the BSA sets out objectives to be pursued
by the commercial television conversion scheme made by the ACMA. Paragraph
6(3)(j) specifies the objective that, after the end of the simulcast period
for a licence area, the transmission of a commercial television
broadcasting service in standard definition digital mode in that area
should achieve the same level of coverage and potential reception quality
as was achieved by the analog transmission immediately prior to switch-
over.
The effect of the amendment made by this item 9 would be to carve out
"digital-only local market areas" (see item 4) from the policy objective
specified in paragraphs 6(3)(j). In other words, the commercial television
conversion scheme need only pursue the 6(3)(j) objective (that post switch-
over digital transmission should achieve the same level of coverage and
potential reception quality as was achieved by analog transmission
immediately prior to switch-over) in so much of the relevant licence area
as is not a digital-only local market area.
Digital-only local market areas do not need to pursue this objective
because analog transmission will have already ceased in those areas.
Digital-only local market areas would be subject to a new policy objective
(see item 10 below).
Item 10 - After paragraph 6(3)(j) of Schedule 4
Item 10 of Schedule 2 to the Bill would insert a new paragraph into
subclause 6(3) of Schedule 4 to the BSA (which sets out the policy
objectives to be pursued by the commercial television conversion scheme
made by the ACMA).
The new policy objective would be that, after a local market area becomes a
digital-only local market area, the transmission of a commercial television
broadcasting service in standard definition digital mode in that area
should achieve the same level of coverage and potential reception quality
as was achieved by the analog transmission immediately prior to the switch-
over in that area.
Item 11 - At the end of subclause 6(7A) of Schedule 4
Item 11 would insert a note at the end of subclause 6(7A) of Schedule 4.
The note is intended to assist readers by referring them to clause 6B of
Schedule 4. Subclause 6(7A) relates to the length of the simulcast period
for remote licence areas. Proposed new clause 6B would impose certain
restrictions on the ACMA's ability to determine a period for the purposes
of paragraph 6(7A)(b) and so is relevant to any consideration of subclause
6(7A).
Item 12 - After clause 6 of Schedule 4
Item 12 would insert new clause 6A and 6B into Schedule 4 to the BSA.
The new clause 6A would give the Minister power to determine the duration
of the simulcast period for metropolitan and regional licence areas,
subject to certain restrictions. The duration of the simulcast period
specified by the Minister is a policy objective to which the commercial
television conversion scheme made by the ACMA must be directed.
Subclauses 6A(1) and (2), respectively, would provide for the Minister, by
legislative instrument, to determine a period for the purposes of
subparagraphs 6(3)(c)(ii) and (iia) of Schedule 4. Such determinations
would be irrevocable. Subparagraphs 6(3)(c)(ii) and (iia), discussed at
item 5 above, provide that the simulcast period for a metropolitan licence
area should run for 9 years, or such other period as is determined by the
Minister under proposed subclause 6A(1) and, for a regional licence area,
for 8 years or such other period as is determined by the Minister under
proposed subclause 6A(2).
Proposed subclauses 6A(3) and (4) would restrict the Minister's ability to
determine the simulcast period. They provide that a period determined
under subclause 6A(1) or 6A(2) must end before 1 January 2014, which
implements the Government's objective of total switch-over by that date.
The restrictions in subclauses 6A(3) and 6A(4) do not apply, however, where
the period is attributable to a variation of subclause (1) or (2)
instrument. Variations are subject to particular conditions that differ
from those applicable to the making of the initial instrument and are
discussed below.
The Minister's ability to vary instruments under subclause 6A(1) or 6A(2)
(ie determining the length of the simulcast period to be reflected in the
commercial television conversion scheme made by the ACMA) is subject to a
number of particular restrictions. The restrictions are very similar to
those proposed in relation to the Minister's ability to specify and vary
local market areas and digital-only local market areas (see item 4 above).
Subclauses 6A(5)-(14) deal with the Minister's ability to vary a subclause
6A(1) or 6A(2) determination. Subclauses 6A(9) and 6A(10) provide that the
Minister may vary a subclause 6A(1) or 6A(2) determination but must not do
so after the end of the period specified in the determination. This is
intended to prevent retrospective variation which could place licensees in
inadvertent breach of with their obligations under the Act.
A subclause 6A(1) or 6A(2) determination is irrevocable (subclauses 6A(11)
& (12)) to provide certainty for industry in its planning for digital
switch-over, and for consumers to know by when they must have equipment
suitable to receive digital television transmissions.
Subclause 6A(5) provides that the end of the period specified in a
subclause 6A(1) or 6A(2) determination that has been varied must not be
earlier than 3 months before the end of the period specified in the
original determination. In other words, once the Minister has determined
the simulcast period for a metropolitan or regional licence area, the
Minister will be prevented from bringing the end of that period forward by
more than three months.
Subclause 6A(6) operates in a similar way to 6A(5) except that it sets a
limit on pushing back the end of the simulcast period. The end of the
period specified in a varied subclause 6A(1) or 6A(2) determination must
not be later than 3 months after the end of the period specified in the
original determination (or 1 January 2014, whichever is the earlier).
Therefore, once the Minister has determined the end of the simulcast period
for the first time, the Minister will be prevented from pushing that date
back beyond three months, or 1 January 2014, except in the limited
circumstances set out in subclause 6A(7) discussed below. By way of
example, a simulcast period initially specified to end on 1 July 2013 could
be pushed back to 1 October 2013, but a period initially specified to end
on 1 December 2013 could only be pushed back to 1 January 2014 (ie not for
the full 3 months).
The combined effect of subclauses 6A(5) and (6) would restrict the
Minister's ability to vary a determination setting the end of the simulcast
period to a 6 month window (ie 3 months either side of the date specified
in the original determination), subject to an ultimate date of 1 January
2014. This restriction is intended to strike a balance between, on the one
hand, providing sufficient flexibility to take account of changing
circumstances and, on the other, providing an appropriate level of
certainty for industry and consumers.
Subclause 6A(7) would set out particular circumstances in which the
restriction in subclause 6A(6) on the Minister's ability to vary a
determination to defer the end of the simulcast period would not apply. It
is intended to safeguard against the possibility of significant and
unforeseen technical difficulties. Subclause (6) would not apply if:
. the end of the simulcast period specified in the subclause (1) or (2)
determination would be likely to result in significant difficulties
of a technical or engineering nature for a commercial television
broadcasting licensee operating in the licence area concerned or for
a national broadcaster; and
. those difficulties could not reasonably have been foreseen by the
licensee or broadcaster as at 6 months before the time specified for
end of the period.
If those tests are satisfied then the Minister may vary the instrument to
push back the end of the simulcast period beyond the end dates that would
otherwise be imposed by subclause 6A(6). As noted, this safeguard is
intended to guard against significant and unforseen technical or
engineering difficulties such as those discussed at item 4 above.
The Minister's power to vary an instrument setting the end of the simulcast
period is, however, subject to an overriding restriction, contained in
subclause 6A(8), that a period determined in a subclause 6A(1) or 6A(2)
instrument must end before 1 July 2014 in all circumstances (ie even in
circumstances where the safeguard clause 6A(7) applies). As a result, 1
July 2014 is the absolute last date by which total digital switch-over must
have occurred, while noting that only under exceptional circumstances can
it be extended past 1 January 2014.
Subclause 6A(13) provides that subclause 6A(9), which explicitly states
that the Minister may vary a subclause 6A(1) or 6A(2) determination, does
not limit the application of subsection 33(3) of the Acts Interpretation
Act 1901 to other instruments made under the Act. Subsection 33(3) deals
with the proper construction of powers to make such instruments.
Item 12 of Schedule 2 to the Bill would also insert new Clause 6B into
Schedule 4 to the BSA. Clause 6B would require the end of a simulcast
period for broadcasters in the remote licences areas (that is, Remote
Western Australia and Remote Central Eastern Australia), as determined by
the ACMA, to be no later than 1 January 2014. Under the legislation, the
ACMA is responsible for determining the simulcast period and switchover
dates for the remote licence areas. This provision ensures that the remote
licence areas are switched to digital-only in a similar time frame to the
rest of Australia.
Subclause 6B(1) sets the date of 1 January 2014 for the completion of
switchover in the remote licence areas.
Subclause 6B(2) provides that the restriction on ACMA's ability to
determine a period under subclause 6B(1) does not apply in circumstances
(if any) specified in a legislative instrument made by the Minister. No
restrictions are placed on the Minister's ability to specify circumstances
in which ACMA would be free to extend the simulcast period for remote
licence areas beyond 31 December 2013, unlike the provisions for
metropolitan and regional licence area switchover. This recognises the
different circumstances and technical issues experienced in remote licence
area broadcasting.
Item 13 - Paragraph 19(3)(c) of Schedule 4
Item 13 of Schedule 2 to the Bill would amend the BSA to prevent paragraph
19(3)(c) of Schedule 4 from applying to any part of a coverage area that
has been determined by the Minister to be a digital-only local market area.
The proposed amendment is one of a number of similar amendments to
subclause 19(3) of Schedule 4 designed to facilitate the setting of
different analog switch-off dates in different parts of a single coverage
area. The amendments to subclause 19(3), which relate to national
television broadcasting services, are similar to the amendments made to
subclause 6(3) in relation to commercial television broadcasting services.
Clause 19 of Schedule 4 to the BSA sets out the framework for the making by
ACMA of a scheme for the conversion of national television broadcasting
services from analog to digital mode. The ACMA has made a scheme as
required, the National Television Conversion Scheme 1999. Subclause 19(3)
of Schedule 4 sets out the policy objectives to which the scheme must be
directed.
One such objective is that there should be a transitional period for a
coverage area, known as the simulcast period, during which each national
broadcaster (ie the ABC and SBS) must transmit in both analog and standard
definition digital mode.
The effect of the amendment made by this item 13 would be to carve out
"digital-only local market areas" from the policy objective specified in
paragraph 19(3)(c). The objective to be pursued by the national television
conversion scheme, therefore, would be to require national broadcasters
operating in a coverage area during the simulcast period to transmit
simultaneously in analog and digital mode, except in those parts of the
coverage area specified as digital-only local market areas.
Item 14 - Paragraphs 19(3)(f) and (g) of Schedule 4
Item 14 of Schedule 2 to the Bill would amend the BSA to prevent paragraphs
19(3)(f) and 19(3)(g) of Schedule 4 from applying to any part of a coverage
area that has been determined by the Minister to be a digital-only local
market area.
Subclause 19(3) of Schedule 4 to the BSA sets out objectives to be pursued
by the national television conversion scheme made by ACMA. Paragraph
19(3)(f) specifies the objective that, during the simulcast period for a
coverage area, the transmission of a national television broadcasting
service in standard definition digital mode in a coverage area should
achieve the same level of coverage and potential reception quality as the
transmission in analog mode in that area. Paragraph 19(3)(g) specifies
that, as far as is practicable, there should be co-location of the
transmitters used for the digital and analog services within a licence
area.
The effect of this amendment would be to carve out "digital-only local
market areas" from the policy objectives specified in paragraphs 19(3)(f)
and (g). In other words, the national television conversion scheme need
only pursue those objectives in so much of a coverage area as is not a
digital-only local market area.
Item 15 - After paragraph 19(3)(g) of Schedule 4
Item 15 of Schedule 2 to the Bill would insert a new paragraph into
subclause 19(3) of Schedule 4 to the BSA (which sets out the policy
objectives to be pursued by the national television conversion scheme made
by the ACMA).
The new policy objective would be that, during the simulcast period for a
coverage area, no national television broadcasting services should be
transmitted in analog mode in any part of the area that has been determined
by the Minister to be a digital-only local market area.
Item 16 - Paragraph 19(3)(j) of Schedule 4
Item 16 of Schedule 2 to the Bill would amend the BSA to prevent paragraph
19(3)(j) of Schedule 4 from applying to any part of a coverage area that
has been determined by the Minister to be a digital-only local market area.
Subclause 19(3) of Schedule 4 to the BSA sets out objectives to be pursued
by the national television conversion scheme made by the ACMA. Paragraph
19(3)(j) specifies the objective that, after the end of the simulcast
period for a coverage area, the transmission of a national television
broadcasting service in standard definition digital mode in that area
should achieve the same level of coverage and potential reception quality
as was achieved by the analog transmission immediately prior to the switch-
over.
The effect of the amendment made by this item 16 would be to carve out
"digital-only local market areas" (see item 4) from the policy objective
specified in paragraphs 19(3)(j). In other words, the national television
conversion scheme need only pursue the 19(3)(j) objective (that post switch-
over digital transmission should achieve the same level of coverage and
potential reception quality as was achieved by analog transmission
immediately prior to switch-over) in so much of the relevant coverage area
as is not a digital-only local market area.
Digital-only local market areas do not need to pursue this objective
because analog transmission will have already ceased in those areas.
Digital-only local market areas would be subject to a new policy objective
(see item 17 below).
Item 17 - After paragraph 19(3)(j) of Schedule 4
Item 17 of Schedule 2 to the Bill would insert a new paragraph into
subclause 19(3) of Schedule 4 to the BSA (which sets out the policy
objectives to be pursued by the national television conversion scheme made
by ACMA).
The new policy objective would be that, after a local market area becomes a
digital-only local market area, the transmission of a national television
broadcasting service in standard definition digital mode in that area
should achieve the same level of coverage and potential reception quality
as was achieved by the analog transmission immediately prior to the switch-
over.
Items 18, 19 and 20 - Subclause 35(1) of Schedule 4
Items 18, 19 and 20 of Schedule 2 to the Bill would amend subclause 35(1)
of Schedule 4 to the BSA.
Subclause 35(1) deals with simulcasting requirements for national
broadcasters. It provides that a national broadcaster must not, during a
simulcast period for a coverage area, broadcast a television program in
standard definition digital mode without simultaneously broadcasting the
program in analog mode in the coverage area.
The effect of the amendment made by items 18, 19 and 20 would be to carve
out digital-only local market areas from the simulcasting requirements in
set out in subclause 35(1) of Schedule 4. Therefore, national broadcasters
would be required to broadcast simultaneously in analog and standard
definition digital mode only in so much of a coverage area that is not a
digital-only local market area. This is consistent with the goal that
analog transmission will cease at the point at which an area becomes a
digital-only local market area.
Item 21 - Variation of commercial television conversion scheme
Item 21 of Schedule 2 to the Bill is an application provision that applies
to variations to the commercial television conversion scheme made by the
ACMA in response to the changes to the BSA made by Schedule 2 to the Bill.
More specifically, item 21 applies to variations that deal with
transitional and/or consequential matters (in connection with the
amendments made by Schedule 2 to the Bill) made before, or within 30 days
after, the commencement of item 21. Schedule 2 to the Bill will commence
on the 60th day after the day on which the Bill receives the Royal Assent
(clause 2) and so item 21 will apply to variations made within 90 days from
the day upon which the Bill receives the Royal Assent.
The effect of item 21 on variations to which it applies is threefold. It
would:
. exclude the operation of clause 18 of Schedule 4 to the BSA.
Clause 18 would otherwise require the ACMA, before varying the
commercial television conversion scheme, to consult with the
public, commercial television broadcasting licensees, national
broadcasters and transmission tower owners/operators;
. exclude the operation of section 17 of the LIA, which requires rule
makers to undertake appropriate consultation before making
legislative instruments; and
. prevent the ACMA from making the variation unless a copy has been
made available on the ACMA website for at least 5 business days.
Amendments to the BSA by this Bill would not represent a substantive change
in Government policy for the achievement of digital switch-over. Rather,
these largely technical and procedural amendments are intended to provide
for a more effective switch-over process. Extensive public consultation
has already occurred. As such, it is not considered necessary for the ACMA
to undertake further public consultation in relation to consequential
variations to the commercial television conversion scheme.
Item 22 - Variation of national television conversion scheme
Item 22 of Schedule 2 to the Bill is an application provision. It applies
to variations to the national television conversion scheme made by the ACMA
in response to the changes to the BSA made by Schedule 2 to the Bill.
Consistent with item 21 above, item 22 applies to variations that deal with
transitional and/or consequential matters (in connection with the
amendments made by Schedule 2 to the Bill) made before, or within 30 days
after, the commencement of item 22. The effect is that item 22 will apply
to variations made within 90 days from the day upon which the Bill receives
the Royal Assent.
Item 22 has four consequences for variations to the national television
conversion scheme of the type specified. The first three consequences are
the same as those in relation to the commercial television conversion
scheme in item 21 above, being that item 22 would:
. exclude the operation of clause 33 of Schedule 4 to the BSA, which
would otherwise require the ACMA to consult with the public,
commercial television broadcasting licensees, national broadcasters
and transmission tower owners/operators in relation to a variation;
. exclude the operation of section 17 of the LIA; and
. prevent ACMA from making the variation without making a copy
available on the ACMA website for at least 5 business days.
Item 22 would also exclude the operation of clause 32 of Schedule 4 to the
BSA. Clause 32 provides that a variation does not take effect unless and
until approved in writing by the Minister.
Amendments to the BSA by this Bill would not represent a substantive change
in Government policy for the achievement of digital switch-over. Rather,
these largely technical and procedural amendments are intended to provide
for a more effective switch-over process. Extensive public consultation has
already occurred. As such, it is not considered necessary for the ACMA to
undertake further public consultation in relation to consequential
variations to the national television conversion scheme, nor for the
variations to receive prior approval from the Minister before coming into
effect.
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