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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)
1
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
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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.
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FINANCIAL IMPACT STATEMENT
The amendments in the Bill are not expected to have any direct financial impact on
Commonwealth revenue or expenditure.
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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.
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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
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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 as 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.
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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: Minister for Communications
HD High Definition
SD Standard Definition
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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
9
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.
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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,
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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
12
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.