Broadcasting Legislation Amendment (Digital Radio) Bill 2017 [2018] AUSStaCSBSD 4 (7 February 2018)

• Broadcasting Legislation Amendment (Digital Radio) Bill 2017
• Consultation prior to making delegated legislation1

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Broadcasting Legislation Amendment (Digital Radio) Bill 2017

Purpose	This bill seeks to amend the Broadcasting Services Act 1992 and the Radiocommunications Act 1992 (Radiocommunications Act) to: • remove the requirement that the Australian Communications and Media Authority (ACMA) give written notice of its intention to declare a digital radio start-up day; • remove specific requirements in the Radiocommunications Act that ACMA consult before preparing or varying a digital radio channel plan; • amend timeframes associated with the formation of eligible joint venture companies and clarify the invitation and acceptance process for the formation of such companies; • amend timeframes associated with the formation of digital community radio broadcasting representative companies and clarify the invitation and acceptance process for the formation of such companies; • amend timeframes associated with issuing a foundation digital radio multiplex transmitter (DRMT) licence in accordance with a price-based allocation system; • amend timeframes associated with DRMT licensees giving the Australian Competition and Consumer Commission access undertakings; and • clarify how excess multiplex capacity on foundation DRMT licences is determined
Portfolio	Communications and the Arts
Introduced	Senate on 6 December 2017

Consultation prior to making delegated legislation^[1]

1.2 Schedule 1, item 4 of the bill seeks to repeal subsections 44A(5) and (7) of the Radiocommunications Act 1992 (Radiocommunications Act). Repealing those provisions would remove the requirement for the Australian Communications and Media Authority (ACMA) to, before preparing or varying a digital radio channel plan, publish a draft of the plan or variation on ACMA's website, invite members of the public to make submissions for a period of at least 30 days, and consider any submissions received from members of the public within that period. In explaining the repeal of those provisions, the explanatory memorandum states:

As digital radio channel plans and variations to digital radio channel plans are legislative instruments (subsections 44A(1) and (6)), the general consultation requirements for legislative instruments in Chapter 3 of the Legislation Act also apply...
Those general requirements are sufficient to ensure that the ACMA undertakes appropriate, and reasonably practicable, consultation when preparing or varying digital radio channel plans. Therefore, it is proposed to remove the separate, but duplicate, requirement in subsections 44A(5) and (7) of the Radcomms Act.^[2]

1.3 However, the committee notes that section 17 of the Legislation Act 2003 (Legislation Act) does not strictly require that consultation be undertaken before an instrument is made. Rather, it requires that a rule-maker be satisfied that any consultation, that he or she thinks is appropriate, is undertaken. In the event that a rule-maker does not think that consultation is appropriate, there is no requirement that consultation be undertaken.

1.4 Further, although the explanatory memorandum states that the consultation requirements in subsection 44(5) and (7) of the Radiocommunications Act duplicate those in the Legislation Act, it is not apparent to the committee that the consultation requirements are equivalent. The Radiocommunications Act currently imposes specific, mandatory consultation requirements on ACMA, which provide for at least 30 days for members of the public to make submissions on a draft plan or variation and for those submissions to be considered. By contrast, the Legislation Act provides that consultation may not be undertaken if a rule-maker considers it to be unnecessary or inappropriate; and the fact that consultation does not occur cannot affect the validity or enforceability of an instrument.^[3]

1.5 Where the Parliament delegates its legislative power in relation to significant regulatory schemes, the committee considers that it is appropriate that specific consultation obligations (beyond those in section 17 of the Legislation Act) apply to the making of legislative instruments, and that compliance with those obligations is a condition of the relevant instruments' validity.

1.6 The committee requests the minister's detailed justification for removing the current, specific requirements for consultation by ACMA prior to the preparation or variation of a digital radio channel plan by legislative instrument.

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[1] Schedule 1, item 4. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[2] Explanatory memorandum, p. 9.

[3] See sections 18 and 19 of the Legislation Act 2003.