2022

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

BROADCASTING SERVICES AMENDMENT (COMMUNITY RADIO) BILL 2022

 

 

EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the Minister for Communications,

the Honourable Michelle Rowland MP)

 

 

 

 

 

 

 

 

 

BROADCASTING SERVICES AMENDMENT (COMMUNITY RADIO) BILL 2022

GENERAL OUTLINE

The Broadcasting Services Amendment (Community Radio) Bill 2022 (the Bill) contains six measures designed to provide greater regulatory clarity and flexibility for community radio broadcasters by simplifying aspects of community broadcasting licensing arrangements.

As a result of the amendments, community radio broadcasters will have more certainty around the obligations and requirements of their licences, and listeners will continue to access quality and diverse radio services. Additionally, the Australian Communications and Media Authority’s (ACMA) licensing processes for both community and temporary community broadcasting will be streamlined and clarified.

The measures set out in the Bill were developed in consultation with community radio, commercial radio and First Nations Media sector representatives.

The measures in the Bill amend Parts 3, 6 and 6A of the Broadcasting Services Act 1992 (BSA) to:

·          Confirm that c ommunity b roadcasting l icence (CBL) renewal is not a competitive process and that when considering applications for renewal s of existing CBLs , the ACMA will consider , among other things, the current service provided under the existing licence and not a “proposed service”.

·          Clarify the ACMA’s powers to allocate new CBLs and t emporary c ommunity b roadcasting l icences (TCBL s ) with effect from a specified future date.

·          Clarify the matters the ACMA may consider when allocating a new TCBL by adding criteria to give consistency to r eflect that of long- t erm CBLs to improve management of TCBLs.

·          Allow the ACMA the discretion to limit the number of TCBL licensees that can share a particular frequency.

·          Include deadlines by which late applications for the renewal of a community licence can be made.

·          Clarify the ACMA’s powers to commence a process to allocate a new CBL.

 

FINANCIAL IMPACT

 

The measures in the Bill will not have any significant impact on Commonwealth expenditure or revenue. Any financial impacts will be met from existing appropriations. It is anticipated that there will be a net positive benefit to both the community broadcasting industry and the ACMA as the amendments explicitly reduce regulatory burden by streamlining aspects of the licensing arrangements under the regulatory regime.

 

 

 

 

 

 

 

 

STATEMENT OF COMPABITILITY WITH HUMAN RIGHTS

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

 

Broadcasting Services Amendment (Community Radio) Bill 2022

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.

 

OVERVIEW OF THE BILL

The Broadcasting Services Amendment (Community Radio) Bill 2022 (the Bill) amends the Broadcasting Services Act 1992 (the BSA) by:

 

·          changing the language of the BSA to make it clear that existing licensees will not be subject to a competitive process to retain their licence every 5 years and that renewal will be based on the current licence;

·          ensuring efficient use of spectrum by allowing licences to be allocated in advance, thereby providing prospective stations with notice to prepare broadcasting infrastructure and content programming before the commencement date;

·          minimising the risk of poor services by creating flexibility, balance and consistency on matters to be considered when allocating temporary community broadcasting licences (TCBLs);

·          reducing the administrative and regulatory burden arising from managing multiple TCBL licensees sharing a frequency, and improving the quality of broadcasting services for listeners;

·          improving the administrative efficiency and flexibility of the licence renewal process with the inclusion of deadlines; and

·          providing the opportunity for expedited timelines for the Australian Communications and Media Authority’s (ACMA) implementation of routine licensing decisions on the allocation of community broadcasting licences (CBLs).

HUMAN RIGHTS IMPLICATIONS

 

Australia is a signatory to the International Covenant on Civil and Political Rights (the ICCPR) , the International Convention on the Elimination of all Forms of Racial Discrimination (ICEFRD), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Rights of Persons with Disabilities (CRPD) . These conventions are listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and include :

 

·          Right to freedom of thought, conscience and religion (Article 18, ICCPR)

·          Right to freedom of expression; including the freedom to seek, receive and impart ideas of all kinds through any media (Article 19, ICCPR; Article 21, CRPD)

·          Right to enjoy and benefit from science and culture (Article 15 ICESCR)

·          Right of equality and non-discrimination (Article 26 , ICCPR ; Article 5, ICEFRD )

 

The measures contained in the Bill do not engage any of the applicable human rights and freedoms. This is because the measures only directly affect the ACMA and companies who are seeking to apply for a TCBL or applying for a new, or renewal of an existing, community broadcasting licence. To the extent that the measures in the Bill:

·          facilitate the continuation of community broadcasting in Australia; and

·          reduce the regulatory burden to widen access to community broadcasting services among current and prospective licensees (and therefore, result in upstream benefits and impact on listeners );

any impact on citizens’ rights to take part in cultural life, exercise their right to freedom of expression, thought, conscience and religion and enjoy the benefits of science is expected to be positive.

 

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.

 

 

NOTES ON CLAUSES

 

Clause 1 - Short Title

 

Clause 1 provides that the Bill, when enacted, may be cited as the Broadcasting Services Amendment ( Community Radio ) Act 202 2 .

 

Clause 2 - Commencement

 

Clause 2 provides that the whole of the Act will commence the day after the Act receives the Royal Assent .

 

Clause 3 - Schedules

 

The amendments set out in Schedules 1 and 2 to the Bill are intended to streamline and reform aspects of the community radio regulatory framework under the Broadcasting Services Act 1992 (the BSA) by clarifying the intent of the BSA in respect of community broadcasting licences (CBLs) renewal processes not being competitive, streamlining licensing arrangements for CBLs, temporary community broadcasting licences (TCBLs) and aspects of the Australian Communications and Media Authority’s (ACMA) decision making in order to reduce regulatory burden, and improve certainty for community broadcasters and, in turn, their listeners.

 

Schedule 1 - Community broadcasting licences

 

Schedule 1 to the Bill proposes amendments to Part 6 of the BSA, which sets out the licensing regime for CBLs.

 

Broadcasting Services Act 1992

 

Item 1 - Section 80 (heading)

 

Item 1 repeals the heading for section 80 and inserts a replacement heading. This is a consequential change to the insertion of a new subsection by item 2.

 

Item 2 - Before subsection 80(1)  

 

Item 2 inserts a new subsection 80(1A) that provides an express power for the ACMA to decide to allocate one or more CBLs that are broadcasting services bands licences.

 

Currently, the ACMA has an implicit power to decide to allocate one or more CBLs, after which it must advertise for applications for those licences. The existence of an express power more clearly enables the ACMA to delegate the decision to commence a process to allocate a CBL. In future, such delegation would occur in reliance on sections 51 or 52 of the Australian Communications and Media Authority Act 2005 . These amendments do not change the current arrangements in regards to the requirement to advertise for applicants, or decisions to allocate a CBL to a particular applicant.

 

Item 3 - Subsection 80(1)

 

This item omits from subsection 80(1) the words “Where the ACMA is going to allocate one or more community broadcasting licences” and substitutes the words “If the ACMA decides under subsection (1A) to allocate one or more community broadcasting licences”. This change is consequential to the change made by the insertion of a new subsection 80(1A) by Item 2.

 

Item 4 - Section 89

 

Item 4 repeals section 89 of the BSA and replaces it with a new provision that no longer deals with commencement. There is no substantive change in the duration of CBLs as a consequence of the new section; such licences remain in force for 5 years subject to subsection 90(1E) and Part 10 of the Act. This update to section 89 will allow the ACMA to allocate CBLs with effect from a specified future date.

 

Currently, when allocating new CBLs, the date of allocation is the date on which ACMA has irrevocably decided to allocate the licence, for example by making the decision and informing the licensee. This has resulted in prospective community radio and broadcasting stations having very limited advance notice to prepare their station for broadcast, as the date of allocation is not known until allocation occurs. In some cases, this has led to successful licensees taking significant time to begin broadcasting following the initial allocation of a CBL, leading to a temporary non/under-utilisation of the broadcasting spectrum, which is inefficient and reduces the effective duration of the licence. As such, the intention of this amendment is to ensure successful licensees can be provided more time to plan and make necessary preparations for broadcasting before their licence comes into effect.

 

Item 5 - Paragraph 90(1C)(a)

Item 6 - After subsection 90(1C)

 

Item 5 repeals paragraph 90(1C)(a) and replaces it with a new provision to determine the date by which late applications for renewal of CBLs can be considered by the ACMA.

 

Under the new subparagraph, existing CBL licensees seeking a renewal of their CBL may lodge late applications for renewal before the earlier of the following:

·          the date when the licence is set to expire;

·          time set by the ACMA under the new power at subsection 90(1CA) and notified to the licensee.

 

The remaining conditions under paragraphs 90(1C)(b) and (c) remain unchanged: the application must be accompanied by a written statement setting out the licensee’s reasons for the lateness of the application; and the ACMA must consider there to be exceptional circumstances that warrant the consideration of the late application.

 

Item 6 adds a new subsection 90(1CA), which confers power on the ACMA to specify a time after which a late application lodged by CBL licensees will not be accepted by it.

 

The effect of these two amendments is to enable the ACMA to provide a written notice to licensees specifying a concrete deadline by which late applications for CBL renewal applications must be made. This will provide greater certainty to licensees and assist the ACMA with the more timely and orderly processing of late applications, and avoid applications being made with short notice. The amendments will also ensure that existing licences are capable of being renewed at a time before they are due to expire, after which there is no avenue to renew.

 

As a result of these changes, applicants will have a clearer understanding of the licensing process and the related services delivered under the CBLs are less likely to be disrupted.

 

Item 7 - Subsection 91(2A)

 

Item 7 repeals existing subsection 91(2A), which provides the ACMA with discretion to refuse to renew a CBL and replaces it with a new provision that is clearer about the nature of that discretion. The revised language in the new subsection also confirms that CBL renewal is not a competitive process, which is consistent with the original policy intent for CBLs under the Act. The Act already includes a number of provisions that evidence the policy intention that CBL renewals under Part 6 of the BSA are not competitive processes. This aspect of the amendment removes any doubt surrounding the issue of whether or not CBL licence renewal is a competitive process.

 

Under the replacement provision, the ACMA will retain its ability, when considering applications for CBL renewals, to have regard to a range of matters that mirror, or are substantially similar to, the matters set out in paragraphs 84(2)(a) to (f) . This includes the extent to which a radio service meets general community needs and reflects the nature of that community.

 

Additionally, the ACMA should still be able to refuse to renew a licence under existing subsection 91(2) if it no longer regards the licensee as suitable (by deciding that subsection 83(2) of the BSA applies).

 

Item 8 - Application provision

 

Item 8 sets out two application provisions.

 

Subitem 8(1) provides for the amendment to section 89 (item 1 of Schedule 1) to have application to licences allocated on or after the commencement of subitem 8(1), if the application was made on or after that commencement.

 

Subitem 8(2) provides for the amendments to section 90 (items 2 and 3 of Schedule 1) to apply to renewal of licences where the application for renewal was made on or after the commencement of subitem 8(2), regardless of when the licences were allocated.

 

Both subitems 8(1) and 8(2) commence on the day after the Act receives the Royal Assent.

 

 

 

 

Schedule 2 - Temporary community broadcasting licences

 

Schedule 2 to the Bill amends Parts 3 and 6A of the Act, which relates to the issuance of transmitter licences to temporary community broadcasting licensees (TCBLs).

 

Broadcasting Services Act 1992

 

Item 1 - After subsection 34(2)

 

Section 34 of Part 3 of the Act regulates when and how the ACMA can approve the allocation of broadcasting services bands spectrum, for alternative uses. There are a range of circumstances under which unallocated spectrum may be made available for temporary transmission services, including for TCBLs, for a period of time as determined by the ACMA.

 

Item 1 of Schedule 2 inserts a new subsection 34(2A) into the Act to allow for the ACMA to stipulate the maximum number of TCBLs that can be allocated to spectrum in such circumstances. This addition is related to the additions made to section 92F (item 5 of Schedule 2 to this Bill).

 

Item 2 - Subsection 92E(2)

Item 3 - After paragraph 92E(2)(b)

 

Existing subsection 92E(2) sets out the matters which the ACMA “is not to have” regard to in deciding whether to allocate a TCBL to an applicant or to one of a group of applicants. Item 2 changes the wording of the provision so that the ACMA “may also have” regard to the listed matters in paragraph 92E(2)(b), if it considers it appropriate to do so. The effect of this change is to expand the range of matters that the ACMA can consider in allocating new TCBLs.

 

Item 3 inserts a new subparagraph (ba) into subsection 92E(2) under subparagraph 92E(2)(b) so that it now reflect the matters that apply to CBLs in subsection 84(2). This amendment corrects a drafting oversight under the Broadcasting Legislation Amendment (Foreign Media Ownership, Community Radio and Other Measures) Act 2018 , which inserted paragraph 84(2)(ba) into the Act, but did not include a consequential amendment to s92E(2) to reflect the text of paragraph 84(2)(ba).

 

Amending subsection 92E(2) of the BSA to provide greater flexibility for the ACMA when considering allocation of a TCBL will minimise the risk of poor quality radio services. It will allow the ACMA to consider additional matters that provide a better indication of the quality of the proposed temporary community radio service and, if required, reject the application if there is insufficient evidence that a quality service will be provided.

 

Overall, the combined effect of items 2 and 3 clarify what matters the ACMA must consider when allocating new TCBLs and additional matters it can consider. The substitution made by item 2 to subsection 92E(2) retains the original policy intent of allowing aspiring broadcasters access to the broadcast spectrum in a fair and effective manner. However, it provides the ACMA with flexibility to consider the merits of applications as appropriate. This change is intended to help optimise the quality of community broadcasting services delivered to listeners across Australia.

 

Item 4 - Section 92F

 

This item is a consequential amendment to item 5 of Schedule 2 to the Bill, which

inserts a new subsection (2) into section 92F.

 

Item 5 - At the end of section 92F

 

Item 5 adds a new subsection to section 92F, which provides the ACMA with the discretion to restrict the number of TCBLs that can share a part or parts of a particular spectrum frequency for a period. This is intended to limit instances where several TCBL licensees are unable to share the same frequency in a consultative and professional manner, or where the ACMA would otherwise be required to allocate too many TCBLs in order to optimise the delivery of a suitable quality of broadcasting service for listeners of community broadcasts. By providing this discretion to the ACMA, it will increase the likelihood that listeners have access to quality and diverse radio programs, while curbing the confusion that can arise from multiple licensees sharing the same spectrum.

 

Item 6 - Paragraph 92G(1)(c)

 

Item 6 largely mirrors the amendments made under Schedule 1, Item 1 above by applying those to TCBLs. It repeals paragraph 92G(1)(c) of the BSA and replaces it with a new paragraph that allows the ACMA to allocate TCBLs in advance of a specified future date. As a result, successful licensees will have more time to plan and make necessary preparations for broadcasting before their licence comes into effect.

 

Item 7 - Application provision

 

Item 7 sets out two application provisions.

 

Subitem 7(1) provides for the amendment to section 92E (item 2 of Schedule 2) to apply in relation to applications made on or after the commencement of this item.

 

Subitem 7(2) provides for the amendments to sections 92F and 92G (items 4-6 of Schedule 2) to apply to licences allocated on or after the commencement of subitem 7(2) if the application for the licence was made on or after commencement of the item.

 

Both subitems 7(1) and 7(2) commence on the day after the Act receives the Royal Assent.