Commonwealth Numbered Regulations - Explanatory Statements

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BROADCASTING SERVICES (DIGITAL TELEVISION STANDARDS) AMENDMENT REGULATIONS 2003 (NO. 2) 2003 NO. 310

Subsection 217(1) of the Broadcasting Services Act 1992 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed by the Act, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The purpose of the accompanying Regulations is to make a minor amendment to the Broadcasting Services (Digital Television Standards) Regulations 2000 (the Principal Regulations) required as a result of amendments to the Act contained in Part 1 of Schedule 1 to the Communications Legislation Amendment Act (No. 3) 2003 (the Amendment Act). The amendments in Part 1 of Schedule 1 to the Amendment Act correct an anomaly in Schedule 4 to the Act that prevented a commercial television broadcasting licensee who had been allocated a second broadcasting licence under section 38A of the Act before 1 January 2001 from electing to multichannel its services.

Part of the regulatory regime for introducing digital television broadcasting in Australia is a 'simulcast period'. This is a transitional period during which a commercial television broadcasting licensee is required to transmit simultaneously the commercial broadcasting service concerned in both analog and standard definition digital mode. At the end of the simulcast period, analog transmissions are to cease. The simulcast period in relation to metropolitan licence areas commenced on 1 January 2001. The commencement of the simulcast period for each regional licence area is determined by the Australian Broadcasting Authority (ABA) under Part A of the Commercial Television Conversion Scheme.

Under section 38A of the Act the commercial television broadcasting licensees in solus television markets (licence areas with only one existing commercial television broadcasting licence) can apply to the ABA for a licence to operate a second commercial service in their market. Licensees are required to simulcast the original and second services in analog and digital mode for the duration of the simulcast period in each solus licence area.

Clause 37E of Schedule 4 to the Act requires that regulations be made that determine standards which are directed towards ensuring that commercial television broadcasting licensees in non-remote areas simulcast a specified amount of high definition television (HDTV) programming during the simulcast period. Schedule 1 to the Principal

Regulations sets HDTV quota standards that apply to non-remote licensees. Paragraph 1(c) of Schedule 1 to the Principal Regulations provides that the HDTV quota standards contained in that Schedule do not apply to a commercial television broadcasting licensee where the broadcaster has made an election under subclause 6(5A) of Schedule 4 to the Act. If a broadcaster makes an election under subclause 6(5A), the broadcaster may multichannel the digital version of the two commercial broadcasting services, and is exempt from the HDTV quotas. A commercial television broadcasting licensee may make an election under subclause 6(5A) if the broadcaster holds two commercial television licences in respect of the same licence area, one of which was allocated under either section 38A or 38B of the Act.

New subclause 6(5AA) was inserted into Schedule 4 of the Act by item 1 of Part 1 of Schedule 1 to the Amendment Act. New subclause 6(5AA) supplements

subclause 6(5A), which only allows a broadcaster to elect to multichannel the digital version of the two commercial broadcasting services "at or about the same time" as the additional commercial broadcasting licence was allocated by the ABA. New subclause 6(5AA) will allow a broadcaster who was allocated a section 38A commercial television broadcasting licence before 1 January 2001 (the day on which subclause 6(5A) commenced), to elect to multichannel the digital version of their two commercial television services with exemption from the HDTV quotas. Revised paragraph 37E(4)(c) of Schedule 4 to the Act (amended by item 3 of Schedule 1 to the Amendment Act) provides that the Standards contained in Schedule 1 to the Principal Regulations are not to apply where an election has been made under new subclause 6(5AA).

The accompanying Regulations amend paragraph 1(c) of Schedule 1 to the Principal Regulations to ensure that where a commercial television broadcasting licensee makes an election under new subclause 6(5AA) of Schedule 4 to the Act, the HDTV quotas in Schedule 1 to the Principal Regulations will not apply.

Details of the accompanying Regulations are set out in the Attachment.

Part 1 of Schedule 1 to the Amendment Act is expressed to commence on a day to be fixed by Proclamation, or six months from the day on which the Act received the Royal Assent. The Act received the Royal Assent on 24 October 2003. Section 4 of the Acts Interpretation Act 1901 allows the amendment to paragraph 1(c) of the Principal Regulations to be made (but not commence) before the amendments in Part 1 of Schedule 1 to the Act come into operation. The accompanying Regulations therefore commence on the commencement of Part 1 of Schedule 1 to the Act.

ATTACHMENT

DETAILS OF THE BROADCASTING SERVICE (DIGITAL TELEVISION STANDARDS) AMENDMENT REGULATIONS 2003 (NO. 2)

Regulation 1 - Name of Regulations

Regulation 1 provides that the name of the proposed Regulations is the Broadcasting Services (Digital Television Standards) Amendment Regulations 2003 (No. 2).

Regulation 2 - Commencement

Regulation 2 provides that the proposed Regulations commence on the commencement of Part 1 of Schedule 1 to the Communications Legislation Amendment Act (No. 3) 2003.

Regulation 3 - Amendment of Broadcasting Services (Digital Television Standards) Regulations 2000

Regulation 3 provides that Schedule 1 to the proposed Regulations amends the Broadcasting Services (Digital Television Standards) Regulations 2000.

Schedule 1       Amendment

Item 1 - Schedule 1, paragraph 1(c)

Item 1 inserts a reference to subclause 6(5AA) into paragraph 1(c) of Schedule 1 to the Broadcasting Services (Digital Television Standards) Regulations 2000. The purpose of the amendment is to ensure that the HDTV quota Standards in that Schedule will not apply in relation to the transmission of a commercial television broadcasting service where that service is the subject of an election under subclause 6(5A) or (5AA) of the Broadcasting Services Act 1992.