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Broadcasting Legislation Amendment (Primary Television Broadcasting Service) Bill 2015

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2013-2014-2015

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Broadcasting Legislation Amendment (PRIMARY tELEVISION BROADCASTING SERVICE) Bill 2015

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Communications,

the Honourable Malcolm Turnbull MP)

 

 

 

 

 

 

 



Broadcasting Legislation Amendment (PRIMARY tELEVISION BROADCASTING SERVICE) Bill 2015

 

OUTLINE

 

The Broadcasting Legislation Amendment (Primary Television Broadcasting Service) Bill 2015 (the Bill) would amend the Broadcasting Services Act 1992 (BSA) to allow commercial and national free-to-air broadcasters to provide their primary television broadcasting services (primary service) in standard definition (SD) or high definition (HD). Currently, free-to-air broadcasters are required to broadcast their primary service in SD.

 

On 27 January 2015, the Department of Communications released the Consultation Paper on Digital Television Regulation which sought views from interested members of the public and industry on future arrangements for digital television regulation. The Bill implements the proposed measure from the review to allow free-to-air broadcasters to provide their primary service in either SD or HD. The proposed measure was strongly supported by both industry and by members of the public who are in favour of watching major events, including sporting events, in HD format.

 

A number of consequential amendments would also need to be made to the anti-siphoning regime under Schedule 4 to the BSA and to provisions under section 41CA and Schedule 2 to the BSA relating to a commercial television broadcasting licence allocated under section 38C (services provided with the use of a satellite). The proposed changes would not materially affect the operation of these parts, but take into account the proposed amendment to allow a primary service to be broadcast in SD or HD.

 

Flexibility for Broadcast of Primary Channel

 

Free-to-air broadcasters are currently required to nominate a SD service as their primary service for the purpose of meeting regulatory obligations, including those relating to anti-siphoning and captioning and, in the case of commercial broadcasters, some Australian content obligations. Presently, the primary services include Channels 7, 9 and 10 and the main ABC and SBS channels. These primary services generally attract higher audiences than respective broadcasters’ other channels.

 

The requirement for free-to-air broadcasters to provide their primary television service in SD was introduced at the start of the digital switchover process to ensure that viewers would have access to at least one digital channel per broadcaster. At the time not all televisions and set-top boxes were capable of receiving HD content. However, a Newspoll survey conducted in February 2014, after the completion of the digital switchover programme, found that 96 per cent of all households had a main television set or set-top box that was capable of receiving HD content. It is expected that this figure has grown with HD capability generally standard in televisions and set-top boxes currently on the market.

 

With the completion of digital switchover and the availability of a range of new television services, many Australians now expect premium free-to-air programming to be provided in HD - especially events such as live sports.

 

The aim of the Bill is to provide free-to-air broadcasters with greater flexibility regarding the types of services they can offer and address growing consumer expectations that free-to-air broadcasters transmit higher quality content. These expectations arise from greater consumer access to new technology and alternative media platforms. Failure by free-to-air broadcasters to respond to these expectations may result in a loss of audience and relevance to the public.

 

The Australian Government remains committed to reducing the regulatory burden for business and the community. It is the Government’s position that commercial and national broadcasters are in the best position to determine the most appropriate mix of services and format for their audience. In a digital environment, the requirement for the primary service to be provided in SD is now outdated. Removing the restriction on the primary service will provide broadcasters with greater flexibility in ensuring efficient use of allocated spectrum. It will further allow broadcasters to continue to provide competitive service choices for viewers.

 

Consequential amendments

 

A consequence of amending the definition of a primary service to allow for the service to be provided in HD is that the rule restricting a broadcaster from premiering an anti-siphoning event on their non-primary multi-channel, under Part 4A of Schedule 4, would not apply to a broadcaster who offered a HD primary service and chose to firstly broadcast an anti-siphoning event on its SDTV non-primary multi-channel. To avoid this result, consequential amendments are required to the anti-siphoning regime to ensure that the current rules would continue to apply in the event broadcasters elect to provide their primary service in HD. These amendments would also cover the broadcast of anti-siphoning events by satellite television services.

 

Minor amendments will also be required to section 41CA of the BSA and licence conditions under Schedule 2 to the BSA relating to a commercial television broadcasting licence allocated under section 38C . A section 38C licensee is authorised under section 41CA to provide a suite of services sourced from either a remote licence area licensee who transmits terrestrially or a metropolitan licence area licensee who transmits terrestrially. These services include the primary service transmitted by the terrestrial licensee, other SD and HD multi-channelled television broadcasting services provided by the terrestrial licensee, as well as service(s) comprising local news programs that regional licence area licensees must provide to the section 38C licensee under section 43AA of the BSA. As a consequence of amending the definition of a primary service, technical amendments would need to be made to reflect that the primary service of the terrestrial licensee that is transmitted by the section 38C licensee could be either a SDTV or HDTV multi-channelled television broadcasting service. 

 

 



FINANCIAL IMPACT STATEMENT

 

The amendments in the Bill are not expected to have any direct financial impact on Commonwealth revenue or expenditure.

 

 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Broadcasting Legislation Amendment (Primary Television Broadcasting Service) Bill 2015

 

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Human Rights Act).

 

Overview of Bill

 

The purpose of the Bill is to amend the Broadcasting Services Act 1992 (BSA) to allow commercial and national free-to-air broadcasters to provide their primary television broadcasting services (primary service) in standard definition (SD) or high definition (HD). This will provide free-to-air broadcasters with greater flexibility regarding the types of services they can offer, so that they can respond more effectively to consumer expectations.

 

The Bill will also make consequential amendments to the anti-siphoning regime under Schedule 4 to the BSA and to provisions under section 41CA and Schedule 2 to the BSA relating to a commercial television broadcasting licence allocated under section 38C (services provided with the use of a satellite). These consequential amendments do not materially affect the operation of these parts, but take into account and facilitate the proposed amendment to allow a primary service to be broadcast in SD or HD.

 

Human rights implications

 

Australia is a signatory to the International Covenant on Civil and Political Rights (the ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of Persons with Disabilities (the CRPD). These three conventions are listed in section 3 of the Human Rights Act.

 

The Bill potentially engages a number of human rights because captioning requirements for the hearing impaired under the BSA are predominately placed on the primary service. As such it is important that people with disabilities generally have access to primary services. These human rights are:

·       Rights of people with a disability (Article 9 of the CRPD);

·       Right to equality and non-discrimination (Article 5 CRPD, Article 26 ICCPR);

·       Right to freedom of opinion and expression (Article 21 CRPD, Article 19 ICCPR).

The CRPD recognises the barriers that people with a disability may face in realising their rights. The rights under all human rights treaties apply to everyone, including people with disability. However, the CRPD applies human rights specifically to the context of people with a disability.

 

Article 9 of the CRPD provides that countries shall take appropriate measures to ensure that persons with disabilities have access to information and communications, including information and communications technologies as well as systems. The appropriate measures should include the identification and elimination of obstacles and barriers to accessibility. Article 5 of the CRPD also provides for the right to equality and non-discrimination, and requires that State Parties recognise that all persons are equal before and under the law (also refer to Article 26 of the ICCPR).

 

In addition, Article 21 of the CRPD sets out a number of obligations on Parties to ensure that people with a disability can exercise the right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas, on an equal basis with others (also refer to Article 19 of the ICCPR). In particular, Article 21 states that States Parties must take all appropriate measures to:

·       ensure that information intended for the general public is provided to people with disability in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost (Article 21(a));

·       urge private entities that provide services to the general public to provide information and services in accessible and usable formats for persons with disabilities (Article 21(c)); and

·       encourage the mass media to make their services accessible to persons with disabilities (Article 21(d)).

Primary services are the key mechanism for meeting captioning requirements under the BSA. It is important, therefore, that people with disabilities can access primary services in order to freely express and hold opinions in society. The amendments in the Bill to the definition of a primary service will give broadcasters the option to transmit their primary service in HD. This means that a person without a set-top box or television that is HD compatible would be unable to view a primary service that was broadcast in HD.

However, current HD equipment penetration rates are very high (estimated in February 2014 at 96 per cent of Australian households). As such, it is likely that viewers who do not have a HD compatible television are aware of being unable to access HD channels, as they would already be unable to access the existing free-to-air channels provided in the HD format. Given that the cost of purchasing a HD set-top box is relatively low (prices start at $40 to $50), primary services will remain reasonably accessible to viewers even where a primary service is transmitted in HD and the person does not currently have a HD set-top box or television.

Moreover, it is likely that people with disabilities already have access to HD channels due to the Household Assistance Scheme (HAS) programme conducted by the Department of Broadband, Communications and the Digital Economy. Between 2010 and 2014, support was made available to people who were in receipt of age pensions, disability support pensions, carer payment, Department of Veterans’ Affairs (DVA) service pensions or DVA income support supplements. The HAS offered some or all, of the following package free of charge:

·       purchase of a HD set-top box;

·       installation of the set-top box by a contracted qualified technician;

·       demonstration of equipment and instructions on how to use it;

·       12 months service and technical support;

·       equipment to receive free-to-air television via satellite (where necessary); and

·       upgrades to cabling and external antenna systems (where appropriate).

Therefore, it is unlikely that the Bill will have an impact on people with a disability in regards to seeking or receiving information via television broadcasting services or programming. The Bill will provide relevant television broadcasters with increased flexibility to provide their primary service in SD or HD while also remaining consistent with the rights of people with a disability and the right to equality and non-discrimination. The Bill will not change any accessibility requirements which are already established under the BSA and a s such, the Bill will not have an effect on the right for people with a disability to freely express an opinion in Australian society.

Conclusion

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in part 3 of the Human Rights Act. 

To the extent that the measures in the Bill may engage rights in the CRPD, ICCPR and ICESCR, as outlined above, the measures are reasonable and proportionate to the goal of reducing the regulatory burden on the broadcasting industry and providing the Australian community with access to high quality free-to-air programming.



 

 

ABBREVIATIONS

 

The following abbreviations are used in this explanatory memorandum:

 

 

 

ACMA:

Australian Communications and Media Authority

 

Bill:

 

Broadcasting Legislation Amendment (Primary Television Broadcasting Service) Bill 2015

 

 

BSA:

 

Broadcasting Services Act 1992 (Cth)

 

 

 

 

Minister:

 

HD

 

SD

Minister for Communications

 

High Definition

 

Standard Definition

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

NOTES ON CLAUSES

 

Broadcasting Legislation Amendment (PRIMARY TELEVISION BROADCASTING SERVICE) Bill 2015

 

 

Clause 1 - Short title

Clause 1 provides that the Bill, when enacted, may be cited as the Broadcasting Legislation Amendment (Primary Television Broadcasting Service) Act 2015 .

 

Clause 2 - Commencement

Clause 2 of the Bill specifies when the Act commences. It specifies that the whole of the Act will commence the day after the Act receives the Royal Assent.

 

Clause 3 - Schedules

Clause 3 is a machinery provision that provides that each Act specified in a Schedule is amended or repealed in accordance with the items of the Schedule concerned, and any other items in the Schedule have effect according to their terms.

 

Schedule 1 - Broadcasting Services Act 1992

 

Item 1 - Paragraphs 41CA(1)(a) and (d)

Item 2 - After paragraph 41CA(1)(f)

Item 3 - Paragraph 41CA(1)(g)

Items 1, 2 and 3 would make technical amendments to section 41CA of the BSA as a consequence of the amendments contained in Item 19 below.

 

Section 41CA of the BSA deals with the services authorised to be provided by a commercial television broadcasting licence allocated under section 38C of the BSA.

 

Section 38C authorises the delivery of commercial television broadcasting services by means of a satellite. A section 38C licensee is authorised under section 41CA(1) to provide a suite of services sourced from either a remote licence area licensee who transmits terrestrially or a metropolitan licence area licensee who transmits terrestrially. These services include the primary service transmitted by the terrestrial licensee, standard definition (SD) and high definition (HD) multi-channelled television broadcasting services provided by the terrestrial licensee, as well as service(s) comprising local news programs that regional licence area licensees must provide to the 38C licensee under section 43AA of the BSA.

 

Items 1 and 2 would respectively repeal paragraphs 41CA(1)(a) and (d) and insert new paragraphs 41CA(1)(fa), (fb), (fc) and (fd). These are technical amendments to reflect that, as a consequence of the amendments that would be made by Item 19, the primary service of the terrestrial licensee that is transmitted by satellite by a section 38C licensee could be either a SDTV or HDTV multi-channelled television broadcasting service.

 

Item 3 would also make a technical amendment to paragraph 41CA(1)(g) to reflect that as a consequence of the amendments that would be made by Item 19, the local news programs provided by a regional licence area licensee to the section 38C licensee pursuant to section 43AA may be in HD or SD format.

 

Item 4 - At the end of paragraph 41CA(3)(b)

Item 5 - After paragraph 41CA(3)(b)

Under subsection 41CA(3) of the BSA, if a terrestrial licensee’s service broadcasts an anti-siphoning event, the section 38C licensee can transmit a different anti-siphoning event in its place, and for the purposes of the service authorisations in subsection 41CA(1) the program content will be considered the same, or substantially the same, as the program content of the terrestrial licensee.

 

Items 4 and 5 would make technical consequential amendments to subsection 41CA(3), so that subsection 41CA(3) operates in relation to the new paragraphs 41CA(1)(fb) and (fd) to be inserted by Item 2 above.

 

Item 6 - After paragraph 7C(1)(a) of Schedule 2

Item 7 - After paragraph 7C(2)(a) of Schedule 2

Item 8 - After paragraph 7C(5)(a) of Schedule 2

In addition to the service authorisations for a section 38C licensee under section 41CA of the BSA, a section 38C licensee is subject to licence conditions in Schedule 2 to the BSA under which the section 38C licensee must provide certain services sourced from a remote or metropolitan licence area licensee who transmits terrestrially.

 

Under clause 7C of Schedule 2 to the BSA, a section 38C licensee is subject to a licence condition about the provision of non-primary commercial television broadcasting services of terrestrial licensees.

 

Items 6, 7 and 8 would make technical amendments to paragraphs 7C(1)(a), 7C(2)(a) and 7C(5)(a) respectively to clarify that references in these licence conditions to the HDTV multi-channelled commercial television broadcasting services are references to the non-primary HDTV multi-channelled services. These amendments would be consequential to the amendments made by Item 19 below, under which it would be possible for a HDTV multi-channelled commercial television service to be the primary service of a terrestrial licensee.

 

Item 9 - Subclause 7D(1) of Schedule 2

Under clause 7D of Schedule 2 to the BSA, a section 38C licensee is subject to licence conditions about the provision of local news services.

 

Item 9 would make a technical consequential amendment to subclause 7D(1), so that the local news services licence condition would also operate in relation to the services that the section 38C licensee would be authorised to provide under the new paragraphs 41CA(1)(fb) and (fd) to be inserted by Item 2 above.

 

Item 10 - Subparagraph 7E(b)(i) of Schedule 2

Item 11 - Subparagraph 7F(1)(a)(i) of Schedule 2

Item 12 - Subparagraph 7G(b)(i) of Schedule 2

Clauses 7E, 7F and 7G of Schedule 2 to the BSA provide certain exemptions from particular Schedule 2 licence conditions, in relation to the non-primary multi-channelled commercial television broadcasting services transmitted by a section 38C licensee.

 

Items 10, 11 and 12 would respectively make technical consequential amendments to subparagraphs 7E(b)(i), 7F(1)(a)(i) and 7G(b)(i) of Schedule 2 so that the exemptions provided by these clauses would continue to apply in relation to the non-primary multi-channelled commercial television broadcasting services, whether those services be HDTV or SDTV services. These amendments are consequential to the amendments that would be made by Item 19 below, whereby a HDTV service could be the commercial broadcaster’s primary service.

 

Item 13 - Clause 41E of Schedule 4 (heading)

Item 16 - Clause 41FA of Schedule 4 (heading)

Item 20 - Clause 41K of Schedule 4 (heading)

Item 23 - Clause 41LA of Schedule 4 (heading)

Items 13, 16, 20 and 23 would respectively rename the headings of clauses 41E, 41FA, 41K and 41LA of Schedule 4 to the BSA to replace references to various ‘SDTV multi-channelled’ television broadcasting services with references to ‘multi-channelled’ television broadcasting services. The new headings would better reflect the expanded scope of the clauses as proposed by Items 14, 17, 21 and 24 below.

 

Item 14 - Paragraphs 41E(1)(a) and (b) of Schedule 4

Item 15 - Clause 41F of Schedule 4

Item 17 - Subparagraphs 41FA(1)(b)(i) and (ii)

Item 18 - Clause 41FB of Schedule 4

Item 21 - Paragraphs 41K(1)(a) and (b) of Schedule 4

Item 22 - Clause 41L of Schedule 4

Item 24 - Paragraphs 41LA(1)(a) and (b)

Item 25 - Clause 41LB of Schedule 4

Part 4A of Schedule 4 to the BSA deals with restrictions on the televising of anti-siphoning events on commercial and national television broadcasting services. Under Part 4A of Schedule 4, commercial and national broadcasters are prevented from televising an anti-siphoning event on a non-primary multi-channelled television broadcasting service unless the event is first broadcast, or broadcast concurrently, on the broadcaster’s primary broadcasting service. The provisions of Part 4A are framed on the basis that a broadcaster’s primary broadcasting service would be an SDTV broadcasting service, as is currently required under clauses 41G, 41M and 41N of Schedule 4 to the BSA.

 

The amendments that would be made to Part 4A of Schedule 4 to the BSA are technical in nature and consequential to the amendments proposed by Items 19, 26 and 27 below, whereby the primary service could be an SDTV or HDTV multi-channelled television broadcasting service.

 

Clause 41E of Schedule 4 to the BSA places restrictions on the broadcasting of anti-siphoning events on SDTV multi-channelled commercial television broadcasting services. Clause 41F of Schedule 4 to the BSA places restrictions on the broadcasting of anti-siphoning events on HDTV multi-channelled commercial television broadcasting services.

 

Items 14 and 15 would make technical amendments that are consequential to the amendments that would be made by Item 19 to allow a primary commercial television broadcasting service to be an SDTV or HDTV multi-channelled service.

 

Item 14 would expand the scope of clause 41E so that it applies where the primary service is a SDTV or HDTV multi-channelled commercial television broadcasting service, and Item 15 would repeal clause 41F. The restrictions contained in clause 41F would be captured in the proposed expanded scope of clause 41E.

 

The restrictions on the televising of anti-siphoning events on commercial television broadcasting services would remain substantively the same. The licensee would still be prevented from televising an anti-siphoning event on a non-primary multi-channelled commercial television broadcasting service unless the event was first broadcast, or broadcast concurrently, on the broadcaster’s primary broadcasting service.

 

Items 17 and 18 would respectively make corresponding amendments to clauses 41FA and 41FB in relation to the restrictions placed on the broadcasting of anti-siphoning events by commercial television broadcasting licensees that are licensed under section 38C of the BSA.

Items 21 and 22 would respectively make corresponding amendments to clauses 41K and 41L in relation to the restrictions placed on the broadcasting of anti-siphoning events by national television broadcasters.

 

Items 24 and 25 would respectively make corresponding amendments to clauses 41LA and 41LB in relation to the restrictions placed on the broadcasting of anti-siphoning events by national broadcasters with the use of a satellite.

 

Item 19 - Subclauses 41G(2), (3) and (4) of Schedule 4

Item 26 - Subclause 41M(1) of Schedule 4

Item 27 - Subclauses 41N(1) and (2) of Schedule 4

Under subclauses 41G(2) and (3) of Schedule 4 to the BSA, the ACMA must declare by legislative instrument that a specified SDTV multi-channelled commercial television broadcasting service provided by a commercial television broadcasting licensee for the licence area is the licensee’s primary commercial television broadcasting service. Corresponding provisions apply under subclauses 41G(4), (5) and (6) of Schedule 4 in relation to one or more specified SDTV multi-channelled commercial television broadcasting services provided by a section 38C licensee.

 

Under clause 41M of Schedule 4 to the BSA, a national broadcaster must, by written notice given to the Minister, declare that a specified SDTV multi-channelled national television broadcasting service provided by the national broadcaster in a specified coverage area is the broadcaster’s primary national television broadcasting service. Corresponding provisions apply under clause 41N of Schedule 4 in relation to a specified SDTV multi-channelled national television broadcasting service provided by the national broadcaster, with the use of a satellite, in a specified satellite delivery area.

 

The regulatory obligations under the BSA applying to a broadcaster’s primary television broadcasting service, including those in relation to anti-siphoning, differ from those that apply to other (non-primary) multi-channelled television broadcasting services.

 

The requirement for broadcasters to provide their primary service in SD was introduced at the start of the digital switchover process to ensure that television viewers would have access to at least one digital channel for each broadcaster, as at that time not all televisions and set-top boxes were capable of receiving HD content. After the completion of digital switchover, access to HD television throughout Australia is now much more widespread. As a result, it is intended to provide broadcasters with greater flexibility regarding the format in which the primary service is provided.

 

Item 19 would amend subclauses 41(G)(2), (3) and (4) so that the ACMA could declare either a HDTV or SDTV multi-channelled commercial television broadcasting service of a commercial television broadcasting licensee, including a section 38C licensee, as the licensee’s primary commercial television broadcasting service.

 

Items 26 and 27 would make corresponding amendments in relation to national television broadcasting services, so that the primary service or primary satellite service of a national television broadcaster could be either a HDTV or SDTV multi-channelled television broadcasting service.

 

Item 28 - Transitional - declarations

Item 28 contains transitional provisions in relation to declarations of primary television broadcasting services currently in force.

 

This item preserves the continuity of declarations currently in force under clauses 41G, 41M and 41N so that they will continue until such time, if any, as the ACMA (in the case of primary commercial television broadcasting services) or the national broadcasters (in the case of primary national television broadcasting services) make new declarations.