Communications Legislation Amendment (Regional Broadcasting Continuity) Bill 2024 - Commentary on Ministerial Responses [2024] AUSStaCSBSD 153 (14 August 2024)

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Purpose	The bill seeks to amend the Broadcasting Services Act 1992 and the Radiocommunications Act 1992 to support continued access to television broadcasting services in regional Australia.
Portfolio	Infrastructure Transport, Regional Development, Communications and Arts
Introduced	House of Representatives on 26 June 2024
Bill status	Before the Senate

Exemption from disallowance
Exemption from sunsetting^[154]

2.18 This bill seeks to insert proposed section 102AE into the Radiocommunications Act 1992 (the Radiocommunications Act) to provide for consolidating transmitter licences for certain broadcasting services. Proposed subsection 102AE(6) provides that the minister may, by legislative instrument, give directions to the Australian Communications and Media Authority (ACMA) in relation to the exercise of the ACMA’s powers in making rules under subsection 102AE(5).^[155]

2.19 A note to proposed subsection 102AE(6) confirms that section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply in relation to these directions, as per regulations made under paragraphs 44(2)(b) and 54(2)(b) of the Legislation Act 2003.^[156]

2.20 In Scrutiny Digest 7 of 2024, the committee requested the minister’s advice as to why it is necessary and appropriate for instruments made under proposed subsection 102AE(6) of the Radiocommunications Act 1992 to be exempt from disallowance and sunsetting.^[157]

Minister for Communication’s response^[158]

2.21 The minister advised that the approach adopted in making instruments made under proposed subsection 102AE(6), which are ministerial directions, as being exempt from sunsetting and disallowance is consistent with the Legislation (Exemptions and Other Matters) Regulation 2015.

2.22 The minister also advised that it would be important for any ministerial direction made under this provision to deliver certainty and continuity over time. The minister stated that if broadcasters are to consolidate their transmission arrangements, it is critical that they have certainty regarding policy settings which may impact those decisions and that therefore it is appropriate that ministerial directions made under proposed subsection 102AE(6) be exempt from sunsetting and disallowance.

Committee comment

2.23 The committee thanks the minister for this response. The committee understands the need for commercial certainty but reiterates that in June 2021, the Senate acknowledged these implications and resolved that delegated legislation should be subject to disallowance unless exceptional circumstances can be shown which would justify an exemption.^[159] In addition, the Senate resolved that any claim that circumstances justify such an exemption will be subject to rigorous scrutiny, with the expectation that the claim will only be justified in rare cases.

2.24 In this instance, it is not clear to the committee how subjecting the instruments to disallowance or sunsetting creates uncertainty as to the effect of the instrument. An instrument has effect from the day it is registered, and will continue to have effect unless it is disallowed within the disallowance period. The committee does not consider the need for certainty in this context to be an indication of exceptional circumstances that warrant an exemption from disallowance or sunsetting. The committee also notes the point made by the Senate Standing Committee for the Scrutiny of Delegated Legislation in its final report into the exemption of delegated legislation from parliamentary oversight:

A well-formed instrument that is made according to its enabling legislation and enjoys broad support will not be disallowed, and is thus unlikely to manifest any of the consequences suggested by departments. Many rationales that point to the possibility of negative outcomes call for such a significant stretch to the credulity of the Parliament that they cannot be seriously considered.^[160]

2.25 Further, given that instruments only sunset ten years following their commencement, it is unclear how making an instrument exempt from sunsetting promotes certainty. Sunsetting is vital in ensuring that legislative instruments are regularly reviewed, remain fit for purpose and are subject to a level of parliamentary oversight when the relevant instruments are remade.

2.26 The committee reiterates its view that a need for administrative flexibility or creating certainty are not exceptional circumstances that, in and of themselves, justify an exemption from sunsetting or disallowance.

2.27 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of instruments made under proposed subsection 102AE(6) of the bill being exempt from sunsetting and disallowance.

^[154] Schedule 1, item 11, proposed subsection 102AE(6). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iv) and (v).

^[155] Proposed subsection 102AE(5) provides that the ACMA can make rules by legislative instrument prescribing specified matters.

^[156] The committee notes that instruments made under proposed subsection 102AE(6) would be exempted on the basis of table item 2 in section 9 of the Legislation (Exemption and Other Matters) Regulation 2015 (LEOM), which exempts directions by a minister to any person or body from disallowance. Similarly, ministerial directions would be exempt from sunsetting under table item 3 in section 11 of LEOM.

^[158] The minister responded to the committee’s comments in a letter dated 22 July 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 9 of 2024).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests