Chapter 1Introduction
1.1On 4 July 2024 the Senate referred the Communications Legislation Amendment (Regional Broadcasting Continuity) Bill 2024 (the bill) to the Environment and Communications Legislation Committee for inquiry and report by 8August2024.
1.2The committee advertised the inquiry on its website and wrote to relevant organisations inviting submissions by 17 July 2024. The committee accepted fivepublic submissions and several public responses to questions on notice, listed at Appendix 1. Copies are available on the committee’s website.
1.3The committee thanks all those who contributed evidence to this inquiry.
Structure of this report
1.4This chapter provides administrative details of the inquiry and key information about the bill. Chapter 2 examines key issues raised in evidence and presents the committee’s view.
Policy context
1.5Upon introducing the bill, the Hon Michelle Rowland MP, Minister for Communications, described the Government’s broader policy objectives:
The Albanese government is committed to ensuring that all Australians have equitable access to media services and content, regardless of financial means or location. This includes through access to quality television broadcasting services.
Free-to-air broadcasting services keep Australians informed through news and current affairs and support the effective operation of our democratic institutions. They tell Australian stories with the creative sector, and provide a trusted source of entertainment for all Australians, including children.
1.6However, the free-to-air broadcasting sector ‘faces significant headwinds, and these are most acute in remote and regional Australia’. The minister highlighted two recent developments in regional broadcasting to which the bill relates.
1.7First, in May 2024 the board of Mildura Digital Television decided to cease operations from 1 July 2024. This means that viewers in Mildura cannot access Network Ten content via terrestrial broadcasting (though they may do so online via the 10 Play app). Mildura Digital Television, jointly owned by WIN and Seven Network, first went to air on 1 January 2006. According to information published on WIN’s website, ‘[f]or its entire history it [Mildura Digital Television] has run at a loss and WIN and Seven have taken the decision to wind it up as it does not make commercial sense to carry the TEN signal at a loss’.
1.8Second, as the minister explained:
In April 2024, WIN Television 'consolidated' the broadcasting services it provides under the authority of two commercial television broadcasting licences onto a single set of transmitters in the South Australian licence areas of Mount Gambier/South East TV1 and Riverland TV1.
1.9The minister described this as ‘a positive development for industry and consumers’ but also observed that ‘the current licensing framework is inflexible and doesn't permit this type of innovation’.
Key provisions of the bill
1.10The bill is intended to ‘support continued access to television broadcasting services in remote and regional Australia’. There are two key elements to the bill, each of which relates to one of the above developments:
To broaden the power for the regulator to declare that an area is eligible for the Viewer Access Satellite Television (VAST) service.
To remove impediments to commercial broadcasters consolidating their terrestrial transmission arrangements, and associated amendments regarding television licence area plans.
Access to VAST—Part 1 of Schedule 1
1.11VAST provides access to free-to-air television and radio via satellite. According to the Regional Ministerial Budget Statement 2023-24:
VAST is a safety-net service that delivers free-to-air satellite television and radio services to regional and remote Australia, including First Nations communities, that cannot access terrestrial television due to remoteness or difficult terrain. Over 1.5 million people rely on VAST, with 625,000 people directly accessing the service via direct-to-home satellite, and 92 per cent of those receiving the service living in regional and remote Australia. A further 875,000 people watch television from 124 terrestrial television towers in remote areas that take their program feed from VAST.
1.12Access to VAST is subject to certain criteria. One of these relates to the number of ‘applicable terrestrial digital commercial television broadcasting services’ available in an area. If an area receives fewer services than are required to be provided on VAST, then the area may be declared ‘service-deficient’ and be eligible for VAST.
1.13However, the explanatory memorandum describes shortcomings with this ‘count’ mechanism. For example, standard definition and high definition simulcasts of the same service are treated as different services for the purposes of this ‘count’. Given that the number of services provided by commercial television broadcasting licensees has increased over recent years:
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.
1.14The bill would amend the Broadcasting Services Act 1992 to replace the ‘count’ mechanism with a power for the Australian Communications and Media Authority (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 in the area is ‘deficient’. The bill provides that when the ACMA is determining this, it may have regard to:
(a)the current applicable terrestrial digital commercial television broadcasting services provided to persons in:
(i)the relevant area; and
(ii)other licence areas;
(b)the history of such services having been provided to persons in the relevant area;
(c)the extent to which there has been a reduction in the number of such services provided to persons in the relevant area;
(d)any other matters that the ACMA considers relevant.
1.15The minister confirmed these changes could have an effect in Mildura:
Audiences that wish to continue to watch Network Ten content via broadcast television in Mildura will be able to do so as a result of these changes if and when a service deficiency declaration is made by the authority.
‘Consolidation’ of transmission arrangements—Parts 2 and 3 of Schedule 1
1.16The explanatory memorandum states that current legislation creates ‘a strict one-to-one relationship between a broadcasting licence and a transmitter licence’. It outlined a rationale for changing this:
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 obligations under the BSA [Broadcasting Services Act 1992], while also distorting the intended application of other provisions.
1.17The bill would enable the one-to-one relationship to be broken in certain circumstances. Specifically, amendments to the Radiocommunications Act 1992 in Part 2 of Schedule 1 would permit the licensees of two transmitter licences to request that the ACMA ‘declare one of those 2 licences to be a “consolidated licence”, on which all relevant broadcasting services are provided, where it is satisfied that it is appropriate in all the circumstances to do so’.
1.18The explanatory memorandum clarifies that the change is ‘likely to be predominantly relevant to commercial television broadcasting licences’.
1.19In addition, Part 3 of Schedule 1 to the bill would amend the Broadcasting Services Act 1992 to clarify that the ACMA has the power to reflect consolidated licensing arrangements in relevant television licence area plans. These plans are prepared by the ACMA and ‘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’. The explanatory memorandum says the proposed clarification ‘would enable the transmitter consolidation measure to be implemented as intended’.
Financial impact statement
1.20The explanatory memorandum includes a ‘nil’ financial impact statement.
Consideration by other parliamentary committees
Senate Committee for the Scrutiny of Bills
1.21The Scrutiny of Bills Committee commented on provisions of the bill that would exempt certain legislative instruments from disallowance and sunsetting.
1.22Proposed subsection 102AE(5) of the Radiocommunications Act 1992 provides that the ACMA may, by legislative instrument, make rules relating to consolidation requests and declarations. Proposed subsection 102AE(6) provides that the minister may, by legislative instrument, give directions to the ACMA in relation to its exercise of these powers.
1.23Directions made by the minister would not be subject to disallowance or sunsetting. The explanatory memorandum provides the following rationale:
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.
1.24The Scrutiny of Bills Committee drew attention to the value of disallowance and sunsetting for parliamentary oversight. Regarding disallowance exemptions:
…the committee expects that any exemption of delegated legislation from the usual disallowance process should be fully justified in the explanatory memorandum. This justification should include an explanation of the exceptional circumstances that are said to justify the exemption and how they apply to the circumstances of the provision in question.
1.25Regarding exemptions to sunsetting, the Scrutiny of Bills Committee said it ‘expects the explanatory memorandum to outline the circumstances that justify the limit on parliamentary oversight and scrutiny’.
1.26The Scrutiny of Bills Committee requested the minister’s advice ‘as to why it is necessary and appropriate for instruments made under proposed subsection102AE(6) of the Radiocommunications Act 1992 to be exempt from disallowance and sunsetting’. The Scrutiny of Bills Committee received a response from the minister on 22 July 2024, but at the time this report was adopted, the response had not been published.
Parliamentary Joint Committee on Human Rights
1.27The Parliamentary Joint Committee on Human Rights examined the bill and made no comment on it.
1.28The statement of compatibility with human rights states that the bill engages several rights. These include, for example, the right of everyone to take part in cultural life in Article 15 of the International Covenant on Economic, Social and Cultural Rights. The statement concludes that the bill is compatible with these human rights and freedoms.