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2022-2023-2024
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMUNICATIONS LEGISLATION AMENDMENT (REGIONAL
BROADCASTING CONTINUITY) BILL 2024
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Communications,
the Hon Michelle Rowland MP)
COMMUNICATIONS LEGISLATION AMENDMENT (REGIONAL
BROADCASTING CONTINUITY) BILL 2024
GENERAL OUTLINE
The Bill would amend the Broadcasting Services Act 1992 (BSA) and the
Radiocommunications Act 1992 (RCA) to support continued access to television broadcasting
services in regional Australia. The Bill contains three measures that would:
• permit viewers to access the Government-funded Viewer Access Satellite Television
(VAST) safety net service when a commercial television broadcaster ceases to provide
services terrestrially in a given area (Part 1 of Schedule 1 to the Bill);
• remove impediments to commercial television broadcasters consolidating their terrestrial
transmission arrangements (Part 2 of Schedule 1 to the Bill); and
• enable the Australian Communications and Media Authority (ACMA) to amend
Television Licence Area Plans (TLAPs) to accommodate consolidated transmission
arrangements (Part 3 of Schedule 1 to the Bill).
Together, these measures seek to support the ability of viewers in regional communities to
continue to access free-to-air television services and enable regional broadcasters to operate
more efficiently.
Declared service-deficient areas
Part 1 of Schedule 1 to the Bill would amend section 130ZH of the BSA to ensure that
audiences have the option of accessing the commercial television broadcasting services
provided via VAST in the circumstance where there has been a material reduction in the
number of commercial television broadcasting services provided terrestrially in a given area.
Access to VAST services
VAST services are provided pursuant to commercial television broadcasting licences
allocated under section 38C of the BSA. Part 9C of the BSA provides for the registration of a
conditional access scheme for each of three section 38C licence areas: South Eastern
Australia TV3, Northern Australia TV3 and Western Australia TV3.
Each conditional access scheme sets out the rules regarding access to the VAST service in the
applicable section 38C licence area, in accordance with statutory policy objectives
established under sections 130ZB and 130ZBB of the BSA. These objectives are directed to
determining whether viewers have adequate reception of terrestrial commercial television
broadcasting services.
Conditional access schemes set out area-based categories (A, B and C reception areas for the
South Eastern Australia TV3 and Northern Australia TV3 licence areas, and A, B, C and D
for the Western Australia TV3 licence area).
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• In categories A and B, people are taken to be unable to receive adequate terrestrial
television reception and, consequently, are automatically eligible for VAST services.
• In Categories C and D, people who do not have adequate terrestrial television reception
may be granted a reception certificate enabling them to access VAST services.
In addition, and relevant to this Bill, the BSA also lists a further area-based category, known
as a declared service-deficient area, by which viewers may access VAST services. Declared
service-deficient areas are those areas located in a terrestrial television broadcasting licence
area, situated within a section 38C licence area, where the ACMA is satisfied that there are
fewer terrestrial digital commercial television broadcasting services than are required to be
provided on VAST. In a declared service-deficient area, people are eligible to access VAST.
Shortcomings with the current arrangements
The cessation of a given commercial television network in many regional licence areas would
not reduce the number of 'applicable terrestrial commercial television services' to a level
below that of the minimum number of required VAST services. As such, there would be no
requirement for the ACMA to declare the area to be service-deficient, and no entitlement for
viewers in the areas to access VAST.
This is, in part, due to the fact that commercial television broadcasting licensees have, over
recent years, increased the number of services provided terrestrially. As such, the 'count' of
applicable terrestrial commercial television services is much higher than was the case when
the service-deficiency provisions were introduced. The standard definition (SD) and high
definition (HD) simulcasts of the same service also count as different services for the
purposes of the count of applicable terrestrial commercial television services.
This service count mechanism in section 130ZH of the BSA therefore creates a perverse
outcome that would leave viewers without access to a free-to-air network's content, by either
terrestrial or satellite broadcasting, if that network ceased broadcasting terrestrially. This
would not be consistent with the Government's commitment to the provision of free-to-air
broadcasting services across Australia.
Amending the declaration of service-deficient areas
To address this issue, the Bill would remove the 'count' mechanism and replace it with a
general power for the ACMA to declare that an area is service deficient if it is satisfied that
the number of applicable terrestrial digital commercial television broadcasting services
provided to viewers in that area is deficient. For the purposes of determining whether the
number of services provided is deficient, the ACMA would be able to consider the following:
• the current applicable terrestrial digital commercial television broadcasting services
provided to persons in:
o the relevant area; and
o other licence areas;
• the history of such services having been provided to persons in the relevant area;
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• the extent to which there has been a reduction in the number of such services provided to
persons in the relevant area; and
• any other matters that the ACMA considers relevant.
This measure would ensure that viewers have the opportunity to access VAST, should they
wish to do so, in the circumstance where a commercial television network is no longer
provided terrestrially in the relevant area.
Consolidating transmitter licences for certain broadcasting services
Part 2 of Schedule 1 to the Bill would amend the RCA to allow the ACMA to declare that a
single transmitter licence issued under subsection 102(1) may authorise the transmission of
the broadcasting service or services of two or more broadcasting licences in a given licence
area. In a technical and practical sense, this amendment is likely to be relevant to the
provision of commercial television broadcasting services.
Existing licensing framework
Part 4 of the BSA provides for the allocation of commercial television broadcasting licences.
Depending on the circumstances, the ACMA can allocate up to three commercial television
broadcasting licences in a licence area to authorise the broadcast of commercial television
broadcasting services.
Subsection 102(1) of the RCA provides that, if a commercial broadcasting licence or a
community broadcasting licence is allocated to a person under Part 4 or Part 6 of the BSA
(respectively), the ACMA must issue to the person a transmitter licence that authorises the
operation of one or more specified radiocommunications transmitters for transmitting the
broadcasting service or services licensed under the BSA using the broadcasting services
bands.
In sum, and taken together, these provisions create a strict 'one-to-one' relationship between
a broadcasting licence and a transmitter licence.
Shortcomings with the current arrangements
While this one-to-one relationship remains appropriate in many cases, commercial television
broadcasters operating in regional and remote areas are implementing more efficient and
innovative ways of operating their transmission networks. In particular, broadcasters that
hold multiple commercial television broadcasting licences in a single licence area are
'consolidating' their broadcasting services onto a single multiplex operated under the
authority of a single transmitter licence. This approach would realise savings for broadcasters
from not having to operate a separate set of transmitters for each service, with no change in
service for viewers.
However, the one-to-one relationship between broadcasting and transmitter licences means
that one of the broadcasting licences would be 'unused' from a licensing and regulatory
perspective. This creates a number of anomalous and unintended outcomes, potentially
placing the broadcaster in breach of specific licence conditions and other regulatory
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obligations under the BSA, while also distorting the intended application of other provisions.
This is despite the fact that the number of services being provided under new consolidated
transmission arrangements is the same as those previously provided.
Permitting the consolidation of transmission arrangements
The Bill would address these issues by inserting a new section 102AE into the RCA, and
making a range of related amendments, to allow broadcasters to request that the ACMA
declare that a specified transmitter licence issued under subsection 102(1) is taken to
authorise the operation of one or more radiocommunications transmitters for transmitting the
broadcasting services authorised under two or more broadcasting licences.
This change is likely to be predominantly relevant to commercial television broadcasting
licences, as there is no technical capacity to consolidate transmitter arrangements for AM or
FM radio services which operate on the basis of one radio broadcasting service per
frequency. There are also no circumstances where more than one community television
broadcasting licence has been allocated in any one licence area. Transmitter licences for
digital radio services are not subject to subsection 102(1) of the RCA and are allocated
separately under that Act.
By breaking the 'one-to-one' relationship between broadcasting licences and transmitter
licences in certain circumstances, the Bill would support broadcasters' ability to pursue more
efficient and innovative transmission arrangements while ensuring that important regulatory
obligations continue to apply as intended.
Preparation of licence area plans
Part 3 of Schedule 1 to the Bill would make minor amendments to section 26 the BSA to
ensure that the ACMA is able to accommodate the consolidation of transmission
arrangements provided for through Part 2 of Schedule 1 to the Bill in relevant TLAPs.
Planning broadcasting services
Subsection 26(1) of the BSA provides that the ACMA must, by legislative instrument,
prepare licence area plans that determine the number and characteristics of broadcasting
services, including technical specifications, that are to be available in particular areas of
Australia with the use of the broadcasting services bands. Where these plans relate to
television broadcasting services, they are known as TLAPs. These instruments are made
under subsection 26(1B) of the BSA and they enable the regulator, among other matters, to
allot radiofrequency channels to particular television broadcasters.
Amendments to TLAPs
The Bill would insert a new subsection 26(1F) of the BSA to clarify that a TLAP may allot,
or empower the ACMA to allot, a channel to two or more particular commercial television
broadcasting licensees in a given licence area. This clarification would enable the transmitter
consolidation measure to be implemented as intended.
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FINANCIAL IMPACT STATEMENT
Nil.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Communications Legislation Amendment (Regional Broadcasting Continuity) Bill 2024
The Communications Legislation Amendment (Regional Broadcasting Continuity) Bill 2024
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.
Overview of the Bill
The Communications Legislation Amendment (Regional Broadcasting Continuity) Bill 2024
(the Bill) contains measures to support access to free-to-air television broadcasting services in
regional Australia. The Bill comprises amendments to the Broadcasting Services Act 1992
(BSA) and Radiocommunications Act 1992 (RCA) to:
• permit viewers to access the Government-funded Viewer Access Satellite Television
(VAST) safety net service when a commercial television broadcaster ceases to provide
services terrestrially in a given area (Part 1 of Schedule 1 to the Bill);
• remove impediments to commercial television broadcasters consolidating their terrestrial
transmission arrangements (Part 2 of Schedule 1 to the Bill); and
• enable the Australian Communications and Media Authority (ACMA) to amend
Television Licence Area Plans (TLAPs) to accommodate consolidated transmission
arrangements (Part 3 of Schedule 1 to the Bill).
Part 1: Declared service-deficient areas
Part 1 of Schedule 1 to the Bill would amend the BSA to enable the ACMA to declare an area
to be service-deficient under section 130ZH for the purposes of accessing the television
services provided via VAST. Specifically, the amendments would require the ACMA to
declare that a terrestrial television licence area is a service-deficient area when it is satisfied
that the area is deficient in the circumstances where there has been a material reduction in the
number of commercial television broadcasting services provided terrestrially in that area.
This would ensure that viewers have the opportunity to access VAST, should they wish to do
so, in the circumstance where a commercial television network is no longer provided
terrestrially in the relevant area. This would be a positive reform for viewers who rely on
free-to-air TV services for news, information and entertainment.
Part 2: Consolidating transmitter licences for certain broadcasting services
Part 2 of Schedule 1 to the Bill would amend the RCA to enable the consolidation of
transmission arrangements for certain broadcasting services. Specifically, the amendment
would permit the ACMA to declare that a single transmitter licence issued under subsection
102(1) of the RCA may authorise the transmission of the broadcasting service or services of
two broadcasting licences in a given licence area. In a technical and practical sense, these
amendments are likely to be relevant to the provision of commercial television broadcasting
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services. These changes would support the ability of regional commercial television
broadcasters to pursue more efficient and innovative transmission arrangements while
ensuring that important regulatory obligations continue to apply as intended.
Part 3: Preparation of licence area plans
Part 3 of Schedule 1 to the Bill will amend the BSA to clarify that a single radiofrequency
channel can be allocated in a TLAP for two or more particular commercial television
broadcasting licences. This is an enabling amendment for transmission consolidation measure
in Part 2 of Schedule 1 to the Bill.
Human Rights Implications
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.
This Bill engages with the following rights:
• the right to freedom of expression in Article 19 of the International Covenant on Civil
and Political Rights (ICCPR) and Article 5 of the International Convention on the
Elimination of all Forms of Racial Discrimination (ICEFRD);
• the right of everyone to take part in cultural life in Article 15 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR);
• the right to enjoy and benefit from culture in Article 30 of the Convention on the Rights
of Persons with Disabilities (CRPD) and Article 27 of the ICCPR; and
• the right of the child to access information and material from a diversity of national and
international sources in Article 17 of the Convention on the Rights of the Child (CRC).
Specific articles and the manner in which the Bill engages them are presented below.
Part 1: Declared service-deficient areas
Right to freedom of expression
Expanding the ability of the ACMA to declare licence areas to be service deficient would
ensure that regional communities can continue to access free-to-air commercial television
broadcasting services when there has been a material reduction in the number of such
services provided terrestrially in a given licence area.
In turn, this would promote the right to freedom of expression under Article 19 of the ICCPR.
Article 19(2) of the ICCPR protects freedom of expression, including the right to seek,
receive and impart information and ideas of all kinds, through any medium, including written
and oral communication, media and broadcasting.
As the United Nations Human Rights Council has stated:
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"The exercise of the right to freedom of opinion and expression is one of the essential
foundations of a democratic society, is enabled by a democratic environment, which
offers, inter alia, guarantees for its protection, is essential to full and effective
participation in a free and democratic society, and is instrumental to the development
and strengthening of effective democratic systems."1
Free-to-air commercial television broadcasting services provide local, national and
international news, information (including during emergencies and natural disasters), along
with sport, drama, and Australian content to all Australians, regardless of their location or
income. The service-deficiency measure contained in the Bill would ensure that viewers can
continue to access a range of information and ideas that are of public significance at a local,
regional or national level.
The service-deficiency amendments included in the Bill would not alter the content viewed
by Australians and would not prevent consumers from choosing what content they want to
watch, or the services on which they want to watch it.
Right of the child to access information
The service-deficiency amendments in the Bill may engage with the right of the child to
access information and material from a diversity of national and international sources, under
Article 17 of the CRC. Article 17 of the CRC provides that in recognising the important
function performed by the mass media, the child has the right to access information and
material from a diversity of national and international sources, and as such, mass media
should be encouraged to disseminate information and material of social and cultural benefit
to the child. The service deficiency amendments would operate beneficially by providing a
mechanism to enable children to have ongoing access to information from diverse mass
media sources, which are of social and cultural benefit.
The amendments would not allow the Government to control the output of communications
provided by local television services. Rather, the framework would ensure that information
that is culturally and socially important and relevant to Australian children remains easily
available and accessible. The service deficiency amendments in the Bill would therefore not
limit, and in many cases would support, any applicable human rights or freedoms.
Rights of persons with disability
The CRPD reaffirms that all persons with disability are guaranteed 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 and through all forms of communication of their choice.
These rights require States parties to take effective measures to facilitate full enjoyment of
these rights, including by articles:
• 21(a) - providing information intended for the general public to persons with disabilities
in accessible formats and technologies appropriate to different kinds of disabilities in a
timely manner and without additional cost;
1 United Nations Human Rights Council, Resolution 12/16, preamble.
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• 21(c) - urging private entities that provide services to the general public, including
through the Internet, to provide information and services in accessible and usable formats
for persons with disabilities; and
• 21(d) - encouraging the mass media, including providers of information through the
Internet, to make their services accessible to persons with disabilities.
Part 9D of the BSA and the Broadcasting Services (Television Captioning) Standard 2023
establish captioning obligations for television broadcasters, including commercial television
broadcasting licensees. Ensuring that Australian viewers continue to have access to captioned
television content supports the rights of persons with disability to access information,
entertainment, and mass media.
Part 2: Consolidating transmitter licences for certain broadcasting services
Right to freedom of expression
Article 19(2) of the ICCPR protects freedom of expression, including the right to seek,
receive and impart information and ideas of all kinds, through any medium, including written
and oral communication, media and broadcasting. This principle is also expressed in:
• Article 13(1) of the CRC
• Article 21 of the CRPD
• Article 5(d)(viii) of the ICEFRD
While the service consolidation amendments would not directly impact the ability of
Australians to seek, receive or impart information and ideas using broadcasting, they are
intended to support the operational flexibility and ongoing sustainability of broadcasters. As
such, they would indirectly support the ability of Australian viewers to seek and receive
information and ideas through television broadcasting services by supporting the provision of
those services by licenced broadcasters.
The service consolidation amendments would not limit the ability of viewers to seek, receive
or impact information and ideas in anyway way. They would therefore not limit the right to
freedom of expression.
Right of the child to access information
The service consolidation provisions of the Bill would also indirectly support the ability of
children access to access information. As noted above, Article 17 of the CRC provides that
the child has the right to access information and material from a diversity of national and
international sources, and as such, mass media should be encouraged to disseminate
information and material of social and cultural benefit to the child.
In Australia, free-to-air commercial television broadcasting plays an important role in
achieving these objectives. It provides access to local, national and international news, sport,
dedicated children's programming, and Australian content to all Australian children,
10
regardless of their location or income. These outcomes are supported by legislative
obligations to provide certain amounts of Australian programming.
As the service consolidation amendments would operate to support the operational flexibility
and sustainability of licenced commercial television broadcasters, they would indirectly
support Australian childrens' ongoing ability to access mass media for the purpose of
accessing information and material from a diversity of sources.
Right to enjoy and benefit from culture and the right of everyone to take part in cultural life;
Rights of persons with disability
Article 15(1) of the ICESCR recognises the right of everyone to take part in cultural life.
Article 27 of the ICCPR also provides that ethnic, religious or linguistic minorities shall not
be denied the right to enjoy their own culture.
Additionally, Article 31(1) and of the CRC and Article 30(1) of CRDP refer to the right to
participate freely, and on an equal basis with others, in cultural life.
The CRPD elaborates on this right for persons with disabilities, providing that State Parties
take all appropriate measures to ensure that persons with disabilities take part on an equal
basis with others in cultural life. This includes that they:
• (a) - enjoy access to cultural materials in accessible formats; and
• (b) - enjoy access to television programmes, films, theatre and other cultural activities, in
accessible formats.
The UN Committee on Economic, Social and Cultural Rights has given a very broad
interpretation to the term 'culture'. This could potentially include the ability to access or
participate in cultural events through viewing these events live or on television. This aligns
with the intent of the Bill to support access to free-to-air televised services, including
coverage of nationally important and culturally significant events.
Part 3: Preparation of licence areas plans
The TLAP amendments are mechanical in nature and clarify that the ACMA is able to allot,
or empower the ACMA to allot, a channel to two or more commercial television broadcasters
through TLAPs to facilitate facilitated by the service authorisation amendments. These
amendments would not engage any of the applicable rights or freedoms.
Conclusion
This 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. To the extent that it may engage Article 19 of the ICCPR, it provides access to
crucial information for democratic and social participation. To the extent that it may engage
Article 17 of the CRC, it provides access to mass media, relevant at a regional and national
level. To the extent the Bill may engage in Article 27 of the ICCPR and Article 15 of the
ICESCR, it promotes access to television services that reflect and promote local culture.
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NOTES ON CLAUSES
Clause 1 - Short Title
Clause 1 provides that the Bill, when enacted, may be cited as the Communications
Legislation Amendment (Regional Broadcasting Continuity) Act 2024.
Clause 2 - Commencement
Clause 2 provides for the commencement of the Act.
Item 1 of the table in clause 2 provides for the whole of the Act to commence the day after
the Act receives Royal Assent.
Clause 3 - Schedules
Clause 3 provides that legislation specified in a Schedule to the Act is amended or repealed as
set out in the applicable items in the Schedule concerned, and that any other item in a
Schedule to the Act has effect according to its terms.
SCHEDULE 1--AMENDMENTS
Part 1--Declared service-deficient areas
Amendments in Part 1 of Schedule 1 to the Bill would alter the way in which the Australian
Communications and Media Authority (ACMA) declares a terrestrial licence area to be
service deficient in terms of the number of commercial television broadcasting services
provided to persons in the area. Persons in an area declared to be service deficient are entitled
to access commercial television broadcasting services provided via the Viewer Access
Satellite Television (VAST) service.
Amendments to the Broadcasting Services Act 1992
Item 1 - Paragraph 130ZH(1)(a)
Item 1 would remove the existing 'count' mechanism that the ACMA must currently use to
determine whether an area is service deficient for the purpose of making a service-deficiency
declaration under subsection 130ZH(1) of the BSA.
The existing mechanism provides that the ACMA must declare a terrestrial licence area to be
service deficient if it is satisfied that the number of applicable terrestrial digital commercial
television broadcasting services provided to persons in the area is less than the number of
commercial television broadcasting services required by clauses 7B and 7C of Schedule 2 to
the BSA to be provided under a commercial television broadcasting licence allocated under
section 38C.
This count mechanism is no longer fit-for-purpose as commercial television broadcasting
licensees have, over recent years, increased the number of services provided terrestrially. The
standard definition and high definition simulcasts of the same service also count as different
services for the purposes of the count of applicable terrestrial commercial television services.
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As a result, the 'count' of applicable terrestrial commercial television services is much higher
than was the case when the service deficiency provisions were introduced. This means that
even where a terrestrial commercial television network ceases to provide services entirely in
an area, the number of applicable terrestrial commercial television services would still - in
many cases - exceed the minimum number of required VAST services. As such, the ACMA
would not be required to declare the area to be service deficient, and viewers in the area
would not be entitled to access VAST. This is not consistent with the intent of the service-
deficiency provisions.
To address this shortcoming, Item 1 of the Bill would amend subsection 130ZH(1) to require
that the ACMA must declare an area to be service deficient if it is satisfied that the number of
applicable terrestrial digital commercial television broadcasting services provided to persons
in a particular area is deficient, with no specific reference to the number of commercial
television broadcasting services required to be provided via VAST.
Item 2 - Paragraph 130ZH(1)(c)
Item 2 would replace the existing reference to "the section 38C licence" in paragraph
130ZH(1)(c) with a reference to "a commercial television broadcasting licence allocated
under section 38C". This is intended to remove any potential ambiguity as to which section
38C licence the provision is referring to.
Item 3 - After subsection 130ZH(1)
Item 3 would insert a new subsection 130ZH(2) to specify the matters to which the ACMA
may have regard to in determining whether the number of commercial television broadcasting
services provided to persons in a particular area is deficient. These matters are:
• the current applicable terrestrial digital commercial television broadcasting services
provided to persons in:
o the relevant area; and
o other licence areas;
• the history of such services having been provided to persons in the relevant area;
• the extent to which there has been a reduction in the number of such services provided to
persons in the relevant area; and
• any other matters that the ACMA considers relevant.
Item 4 - Paragraph 130ZH(4)(d)
Item 4 would remove the existing 'count' mechanism that the ACMA must currently use to
determine whether an area is service deficient for the purpose of revoking a service-
deficiency declaration made under subsection 130ZH(1).
The amended paragraph 130ZH(4)(d) would instead require that the ACMA not be satisfied
that the number of applicable terrestrial digital commercial television broadcasting services
13
provided to persons in a particular area is deficient, with no specific reference to the number
of commercial television broadcasting services required to be provided via VAST.
This change mirrors the amendments to subsection 130ZH(1) provided by Item 1.
Item 5 - Subsection 130ZH(5)
Item 5 would repeal the requirement that the ACMA must disregard certain commercial
television broadcasting services provided under a section 38C licence for the purposes of
making or revoking a service-deficiency declaration. This subsection is no longer required as
a result of the amendments contained in Items 1 and 4.
Item 6 - Saving provision
Item 6 clarifies that a service-deficiency declaration made under subsection 130ZH(1) that
was in force before the commencement of the Bill continues to be in force on and after that
commencement.
Item 7 - Application provision
Item 7 provides that amended subsection 130ZH(4), which provides for the revocation of
service-deficiency declarations, would apply to any service-deficiency declaration made
under subsection 130ZH(1) before, on, or after the commencement of the Bill.
Part 2--Consolidating transmitter licences for certain broadcasting
services
Part 2 of Schedule 1 to the Bill would amend the RCA to allow the ACMA, under certain
circumstances, to declare that a single transmitter licence issued under subsection 102(1) may
authorise the transmission of the broadcasting service or services of two broadcasting
licences in a given licence area. Such a declaration would be called a 'consolidation
declaration'.
Amendments to the Radiocommunications Act 1992
Item 8 - Subsection 102(1)
Item 9 - At the end of subsection 102(1)
Subsection 102(1) of the RCA provides that, if a commercial broadcasting licence or a
community broadcasting licence is allocated to a person under Part 4 or Part 6 of the BSA
(respectively), the ACMA must issue to the person a transmitter licence that authorises the
operation of one or more specified radiocommunications transmitters for transmitting the
broadcasting service or services licensed under the BSA using the broadcasting services
bands.
Item 8 would insert a reference to new section 102AE in subsection 102(1) to require that the
issuance of transmitter licences under subsection 102(1) is subject to the transmitter
consolidation arrangements in section 102AE.
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Item 9 would insert a note after subsection 102(1) outlining that section 102AE provides for
the consolidation of transmitter licences issued under this subsection, with the effect that
multiple broadcasting services bands licences may relate to a single consolidated transmitter
licence. This is an explanatory note to aid the understanding of the effect of new section
102AE on subsection 102(1).
Item 10 - At the end of subsection 102(2)
Subsection 102(2) provides that if a related licence - being a broadcasting services band
licence allocated to a person under Part 4 or Part 6 of the BSA - is transferred, the transmitter
licence is taken to be issued to the person to whom the related licence is transferred.
Item 10 would provide that subsection 102(2) is subject to new subsection 102AE(4), which
deals with the transfer of a consolidated licence.
Item 11 - After section 102AD
Item 11 would insert a new section 102AE that would empower the ACMA to make a
consolidation declaration that allows a single transmitter licence to authorise the operation of
one or more transmitters for transmitting the broadcasting service or services of two or more
broadcasting services bands licences in a given licence area.
Subsection 102AE(1) would provide that the licensee of a transmitter licence issued under
subsection 102(1) of the RCA, and the licensee of another such licence- collectively, the
'relevant licences' - may, by written notice given to the ACMA, request that the ACMA
make a consolidation declaration in relation to the relevant licences (a 'consolidation
request').
Subsection 102AE(2) would provide that the relevant licensee of each of the relevant licences
may be the same licensee. This accommodates the fact that in certain licence areas, a single
commercial broadcaster holds a number of licences allocated under one or more of
section 36, section 38A and section 38B of the BSA.
Subsection 102AE(3) would provide the power for the ACMA to make a consolidation
declaration. Paragraph 102AE(3)(a) would set out that, if the ACMA is satisfied that it is
appropriate in all the circumstances to do so, the regulator may make a declaration providing
that one of the relevant licences referred to in an application made under subsection
102AE(1) is taken to authorise:
• the operation of the one or more radiocommunications transmitters specified in the
consolidated licence; and
• the transmission, using those transmitters, of the broadcasting service or services
concerned in accordance with each of the broadcasting services bands licences to which
either of the relevant licences relates.
Paragraph 102AE(3)(b) would provide that the consolidated licence is taken to be held by the
licensee of each of the relevant licences (if the same licensee holds both licences), and to be
held jointly by the licensees (if these licensees are different). This is necessary because, in
15
certain circumstances, the relevant licences may be held either by the same party, or by
different parties.
Paragraph 102AE(3)(c) would provide that the consolidated licence is taken to continue to be
issued under section 102, and that each of the broadcasting services bands licences to be
associated with the consolidated licence are taken to be the related licences of the
consolidated licence for the purpose of section 102.
Paragraph 102AE(3)(d) would provide that the other of the relevant licences is taken to have
been surrendered, and the ACMA is taken to have accepted that surrender, at the time the
declaration is made. This is intended to ensure that the now 'unused' transmitter licence is
surrendered to the regulator.
Due to its surrender, the 'unused' licence would no longer attract liability to pay Commercial
Broadcasting Tax (CBT) under the Commercial Broadcasting Tax Act 2017. It is intended
that the consolidated licence would continue to attract liability to pay CBT under that Act.
The ability for the ACMA to declare a transmitter licence to be a consolidated licence under
subsection 102AE(3) is likely to be predominantly relevant to transmitter licences used to
provide commercial television broadcasting services. This is because there is no technical
capacity to consolidate transmitter arrangements for AM or FM radio services, which operate
on the basis of one radio broadcasting service per frequency. There are also no circumstances
where more than one community television broadcasting licence has been allocated in any
one licence area. Transmitter licences for digital radio services are not subject to subsection
102(1) of the RCA and are allocated separately under that Act.
Subsection 102AE(4) is intended to provide a means of determining which party or parties
continue to hold a consolidated licence in the circumstance that one of the related licences -
being a broadcasting services band licence allocated to a person under Part 4 or Part 6 of the
BSA - is transferred.
This subsection would provide that if one of the related licences for a consolidated licence
(the first licensee) is transferred to another person (the second licensee), then:
• the first licensee is taken to cease to hold the consolidated licence, unless they hold one of
the other related licences; and
• the consolidated licence is taken to be held by:
o the second licensee (if the licensee of each of the related licensees is the second
licensee); or
o jointly by the second licensee and each licensee of the other related licences (if the
licensee of the related licences is different).
Subsection 102AE(5) would provide that the ACMA may, by legislative instrument, make
rules prescribing the following matters:
• the types of licensees that may make a consolidation request;
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• the information that must be included in a consolidation request;
• the circumstances in which a consolidation request or consolidation declaration may be
made;
• the matters that may be provided for in a consolidation declaration;
• the effects of making a consolidation declaration;
• the circumstances in which a consolidation declaration may or must be varied or revoked,
and the effects of such a variation or revocation; and
• any other matters that the ACMA considers necessary or convenient to give effect to this
section.
Under subsections 102AE(6) and (7), the Minister may, by legislative instrument, give
directions to the ACMA in relation to the exercise of its rule-making powers under subsection
102AE(5), and the ACMA must comply with any such direction.
The rule-making powers (and the capacity for the Minister to direct the regulator in respect of
those powers) are intended to provide a mechanism to establish parameters to apply to
consolidation requests and consolidation declarations, should that be warranted. These rule-
making powers are not mandatory, and the ACMA may (or may not) make any such rules.
Without limiting or otherwise affecting the potential use of subsection 102AE(5), this rule-
making power may be used to limit the scope of service consolidation requests and
declarations, prescribe the form of written notice that a consolidation request must be made
in, as well as set out any other procedural matters that the ACMA considers appropriate to
administer the new framework.
These provisions are intentionally broad to allow the ACMA's approach to service
consolidation to be flexible as market conditions and technology changes. As these service
consolidation amendments respond to such changes, this flexibility will be important in
ensuring that section 102AE does not become obsolete.
The note to subsection 102AE(6) explains that, as is standard, the disallowance and
sunsetting provisions of the Legislation Act 2003 do not apply to a ministerial direction given
under the subsection.
Subsection 102AE(8) would provide definitions for the section. It would set out that, in
section 102AE:
• consolidation declaration means a declaration made under subsection (3).
• consolidation request means a request made under subsection (1).
Item 12 - Subsection 103(4A)
Item 13 - After subsection 103(4A)
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Subsection 103(4A) sets out the circumstances under which a transmitter licence issued under
subsection 102(1) remains is force with respect to the related licence referred to in that
subsection.
Item 12 would provide that this subsection is subject to new subsection 102AE(5), which sets
out the means of determining which party or parties continue to hold a consolidated licence in
the circumstance that one of the related licences is transferred (Item 11 refers).
Item 13 would provide that if a consolidation declaration is in force in relation to a
transmitter licence issued under subsection 102(1), the transmitter licence continues to be in
force until all of the related broadcasting services bands licences cease to be in force. This is
intended to ensure that a consolidated licence continues to remain in force even if one of the
related broadcasting services bands licences is not, thus avoiding the potential interruption in
the provision of services.
Item 14 - Application provision--general
Item 14 would provide that the amendments made by Part 2 of Schedule 1 to the Bill apply in
relation to a consolidation request made under subsection 102AE(1), whether or not the
transmitter licences to which the request related were issued before, on or after than
commencement. This would ensure that consolidation requests can be made in relation to
existing transmitter licences, as well as any licences to be allocated in the future.
Item 15 - Transitional provision--consolidation declarations
Item 15 would provide that the ACMA may, in a consolidation declaration made under
subsection 102AE(4), provide that a consolidation declaration is taken to have effect from a
day that is before the day on which the consolidation declaration is made, or before the
commencement of the Bill, or both. This would enable a consolidation declaration to have
effect from an earlier point in time, should this be warranted in the circumstances.
Part 3--Preparation of licence area plans
Part 3 of Schedule 1 to the Bill would amend section 26 of the BSA to clarify that the ACMA
has the power to reflect the consolidated licensing arrangements enabled by the amendments
contained in Part 2 of Schedule 1 to the Bill with respect to any relevant Television Licence
Area Plans (TLAPs).
Item 16 - After subsection 26(1E)
Subsection 26(1) of the BSA provides that the ACMA must, by legislative instrument,
prepare licence area plans that determine the number and characteristics of broadcasting
services, including technical specifications, that are to be available in particular areas of
Australia with the use of the broadcasting services bands. Where these plans relate to
television broadcasting services, they are known as TLAPs. These instruments are made
under subsection 26(1B) of the BSA and they enable the regulator, among other matters, to
allot radiofrequency channels to particular television broadcasters.
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Item 16 would insert a new subsection 26(1F) to clarify that, without limiting the operation of
the section, a TLAP may allot, or empower the ACMA to allot, a channel to two or more
particular commercial television broadcasting licensees.
This amendment would remove any ambiguity as to the capacity of the ACMA to reflect the
effect of a consolidation declaration in a TLAP. While the amendment specifically references
commercial television broadcasting licensees, it would not limit the ACMA's ability to allot a
channel in any other manner. This would include the allotment of a channel to broadcasters
other than commercial television broadcasting licensees.
Item 17 - Application provision--general
Item 17 would provide that the clarification inserted by subsection 26(1F) applies in relation
to a TLAP prepared before, on or after the commencement of the Bill.
Item 18 - Transitional provision--variation of television licence area plans
Item 18 would provide that, if the ACMA varies a TLAP to allot, or to empower the ACMA
to allot, a channel to two or more particular commercial television broadcasting licensees, it
may deem that the varied TLAP is taken to have effect from a day that is before the day on
which the variation is made, or before the commencement of the Bill, or both. This is
intended to enable the timing of a variation of a TLAP in this particular circumstance to align
with a transmitter consolidation arrangement enabled by the amendments in Part 2 of
Schedule 1 to the Bill.
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