Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
1998 –1999–2000–2001
THE PARLIAMENT
OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
BROADCASTING
LEGISLATION AMENDMENT BILL 2001
REVISED EXPLANATORY
MEMORANDUM
(Circulated by authority of Senator the Hon. Richard Alston,
Minister for Communications, Information Technology and the Arts)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE SENATE TO THE BILL AS
INTRODUCED
ISBN: 0642 466483
BROADCASTING
LEGISLATION
AMENDMENT BILL
2001
OUTLINE
The Broadcasting Legislation Amendment Bill (the Bill) amends the
Broadcasting Services Act 1992 (the BSA), the Australian Broadcasting
Corporation Act 1983 (the ABC Act), and the Special Broadcasting Service
Act 1991 (the SBS Act):
(a) to transfer provisions giving the Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS) the specific function of datacasting from the BSA to their respective enabling legislation;
(b) to allow the ABC and SBS to develop and operate datacasting codes of practice by removing the requirement that they be subject to codes of practice developed by the commercial datacasting industry; and
(c) to make a number of minor amendments to the provisions of the BSA
inserted by the Broadcasting Services Amendment (Digital Television and
Datacasting) Act 2000 (the Digital Act).
Clauses 39 and 40 of
Schedule 6 of the BSA, which were inserted by the Digital Act, give the ABC and
the SBS the function of providing datacasting services under a datacasting
licence if those Corporations respectively apply for a datacasting licence.
These provisions were included in Schedule 6 to achieve the following
objectives:
• making any ABC or SBS involvement in datacasting a
matter for their respective Boards (and therefore not making it a charter
function of those organisations); and
• requiring any ABC or SBS
involvement in datacasting to be on the same basis as other
datacasters.
At present there is no reference to the provision of
datacasting services in either the ABC Act or the SBS Act. In order to best
reflect the ABC’s and SBS’s ability to datacast, the Bill amends the
BSA by removing the provision for ABC and SBS datacasting (Items 5 and 6 of
Schedule 1), and amends the ABC and SBS Acts by inserting equivalent clauses
(Items 1-3 of Schedules 2 and 3 respectively).
The Bill also amends
codes of practice and complaints handling procedures in relation to ABC and SBS
datacasting. These amendments:
• modify section 8(1)(e) of the ABC Act and section 10(1)(j) of the SBS Act to ensure that the respective Boards of the ABC and SBS have the power to develop codes of practice for their datacasting services (Item 4 in Schedules 2 and 3 respectively);
• amend Part 4 and clause 37 of Schedule 6 of the BSA to exempt ABC and SBS datacasting services from provisions relating to codes of practice and ABA investigation of complaints under codes of practice (Items 4A and 4B of Schedule 1); and
• ensure the code of practice complaints handling provisions in Division 2 of Part 11 of the BSA apply to both national broadcasting services and datacasting services provided by the ABC and SBS (Items 1A, 1B and 1C of Schedule 1).
The amendments will assist the development and operation of codes by the
ABC and SBS by removing a requirement that they be subject to codes of practice
developed by the commercial datacasting industry that may not suit the kinds of
datacasting services provided by the ABC and SBS. At the same time, the ABC and
SBS will remain subject to ABA licensing procedures and ABA oversight in
relation to breaches of licence conditions. This ensures that any datacasting
service provided by the ABC and SBS will remain within the general regulatory
framework for datacasting.
The Bill also rectifies a number of minor errors that occurred as a
consequence of various amendments made in the Senate to the Broadcasting
Amendment (Digital Television and Datacasting) Bill (the Digital Bill) during
consideration of the Bill in June 2000 (Items 2–4 of Schedule 1).
FINANCIAL IMPACT STATEMENT
The Bill is not expected to have any impact on Commonwealth expenditure
or revenue.
BROADCASTING
LEGISLATION
AMENDMENT BILL
2001
NOTES ON CLAUSES
Clause 1 – Short title
Clause 1 provides that the Bill,
when enacted, may be cited as the Broadcasting Legislation Amendment Act
2001.
Clause 2 – Commencement
Clause 2 provides
that the Bill, when enacted, will commence on the day on which it receives Royal
Assent.
Clause 3 – Schedule(s)
Clause 3 provides,
in effect, that provisions in the BSA, the ABC Act and the SBS Act that are
specified respectively in Schedules 1, 2 and 3 to the Bill are amended or
repealed in accordance with the applicable items of those Schedules, and that
other items in the Schedules have effect according to their terms.
Schedule 1 Proposed amendments to the
Broadcasting Service Act 1992
Item 1A, 1B and 1C – Amendments to ABC/SBS datacasting– codes
of practice and complaints
Division 2 of Part 11 of the BSA
establishes a complaints handling procedure in relation to complaints made about
the Australian Broadcasting Corporation or the Special Broadcasting Service
Corporation on the ground that that national broadcasting service has acted
contrary to a code of practice developed by that national broadcasting service
and notified to the ABA.
Items 1A, 1B and 1C extend the existing
complaint handling procedure to apply to complaints made about datacasting
services provided by the ABC or SBS on the ground that the ABC or SBS has acted
contrary to a code of practice developed by that Corporation and notified to the
ABA.
Item 2 – Repeal of paragraphs 6(8)(ca) and 19(8)(ca) of
Schedule 4
Paragraphs 6(8)(ca) and 19(8)(ca) of Schedule 4 of the
BSA both refer to Category B digital program-enhancement content. These
paragraphs have no substantive operation after the deletion of subclauses
6(15)-(19) and 19(15)-(19) by amendments made in the Senate to the Digital Bill.
Item 3 – Amendment to subparagraphs 37E(2)(a)(i) and
37F(2)(a)(i) of Schedule 4
Item 4 omits an incorrect reference to
‘SDTV mode’ in subparagraphs 37E(2)(a)(i) and 37F(2)(a)(i) of
Schedule 4 and substitutes a reference to ‘SDTV digital mode’.
Clause 27A of Schedule 6 of the BSA provides that the ABA may make an
exemption order in relation to a transmission of matter by a datacasting
licensee where the matter is content proposed to be copied from the Internet.
Clause 20AA provides that the conditions contained in clauses 14 and 16 of
Schedule 6 do not apply in relation to matter that is the subject of an
exemption order under subclause 27A(1).
This proposed amendment omits an
incorrect reference to clause ‘20A’ in clause 27A and substitutes a
reference to clause ‘20AA’ of Schedule 6.
Items 4A and 4B
– Insertion of new clause 35A and new subclause 37(3) in Schedule
6
Part 4 of Schedule 6 deals with codes of practice for datacasting
licensees. Clause 28 of the Schedule provides that a group that the ABA is
satisfied represents datacasting licensees should develop a code of practice for
the datacasting industry, in consultation with ABA and taking account of any
relevant ABA research. Under clause 37 of Schedule 6, the ABA has the power to
investigate complaints made in respect of codes of practice developed under
Part 4.
Item 4A inserts a new clause 35A in Schedule 6 of the BSA
which exempts the ABC and SBS from the standard codes of practice clauses
applying to datacasting licensees in general.
Item 4B inserts a new
subclause 37(3) in Schedule 6 which provides that the standard provision for
dealing with complaints about compliance with datacasting codes of practice does
not apply to the ABC and SBS.
Item 5 – Amendment to the heading
of Part 6 of Schedule 6
Consequential to the proposed deletion of
clauses 39 and 40 in Item 6, it is proposed that the heading of Part 6 of
Schedule 6 be changed to ‘Control of datacasting transmitter
licences’ to reflect the nature of the remaining provision in Part 6 of
Schedule 6 of the BSA.
Item 6 – Repeal of clauses 39 and 40 of
Schedule 6
Clauses 39 and 40 of Schedule 6 of the BSA give the ABC
and SBS the function of providing datacasting services under a datacasting
licence if those Corporations respectively apply for a datacasting licence.
Consequential to the insertion of equivalent clauses in the enabling legislation
of the ABC and the SBS proposed by Item 3 in Schedule 2 and Item 3 in Schedule 3
of the Bill, this Item repeals clauses 39 and 40 of Schedule 4 of the BSA.
Consequential to the proposed amendment in Item 5 to the heading of Part
6 of Schedule 6 of the BSA, the note to Item 6 provides that the heading of
Clause 41, the remaining clause in this Part, be replaced with the heading
‘Datacasting transmitter licences not to be controlled by the ABC or
SBS’.
Schedule 2 Proposed amendments to the
Australian Broadcasting Corporation Act
1983
Item 1 – Insertion of definition of datacasting licence in
subsection 3(1)
This item inserts a definition of datacasting
licence in subsection 3(1) (the definition clause) of the ABC Act. This term is
used in the proposed new section 6A.
For the purposes of the ABC Act, it
is proposed that the term datacasting licence will have the same meaning as in
the BSA. In the BSA, a datacasting licence means a licence to provide a
datacasting service under Schedule 6 of that Act.
Item 2 –
Insertion of definition of datacasting service in subsection 3(1)
This item inserts a definition of datacasting service in subsection 3(1)
(the definition clause) of the ABC Act. This term is used in the proposed new
section 6A. For the purposes of the Act, the term datacasting service will have
the same meaning as in the BSA.
In the BSA, a datacasting licence means
a service that delivers content:
• whether in the form of text; or
• whether in the form of data; or
• whether in the form of speech, music or other sounds; or
• whether in the form of visual images (animated or otherwise); or
• whether in any other form; or
• whether in any combination of forms;
to persons having
equipment appropriate for receiving that content, where the delivery of the
service uses the broadcasting services bands.
Item 3 –
Insertion of new section 6A
Item 3 inserts a new section 6A which
provides that where the ABC applies for and receives a datacasting licence then,
in addition to the ABC Charter functions contained in section 6 of the ABC Act,
the ABC has the function of providing a datacasting service under, and in
accordance with the conditions of, the licence. This provision mirrors subclause
39(1) of Schedule 6 of the current BSA.
This provision does not require
the ABC to provide datacasting services. It provides the ABC with the ability to
choose how to best use its transmission capacity by enabling it, for example, to
use all the available digital transmission capacity to provide multi-channelled
national television broadcasting services rather than datacasting services, if
it so chooses.
The ABC would have the power under section 25 of the ABC
Act to apply for a datacasting licence. The ABC would be able to apply its money
in relation to the datacasting function under section 68 of the ABC Act.
Where, as a consequence of new subsection 6A(1), it becomes a function
of the ABC to provide a datacasting service, any business or other activity
related to the performance of the datacasting function will be an authorised
business for the purposes of subsection 25A(2).
New subsection 6A(2)
provides that subsection 6A(1) is not intended to impose any obligation on the
corporation in relation to the provision of a datacasting licence, beyond the
obligations imposed on the ABC by the datacasting licence. It is intended that
this subsection will prevent the ABC being compelled by court proceedings to
carry out datacasting functions without affecting the ability to take
enforcement action under the BSA in relation to licensing requirements.
Section 8 of the ABC Act sets out the duties of the ABC Board. Paragraph
8(1)(e) provides that it is a duty of the Board to develop codes of practice
relating to programming matters and to notify those codes to the Australian
Broadcasting Authority.
Item 4 replaces current paragraph 8(1)(e) with a
new paragraph which provides that it is a duty of the Board to develop codes of
practice in relation to both programming matters, and in relation to a
datacasting service where the ABC has the function of providing a datacasting
service under new section 6A. The ABC will be required to notify those codes to
the Australian Broadcasting Authority, and a breach of a datacasting code of
practice by the ABC would be subject to the complaints mechanism in Division 2
of Part 11 of the BSA Act, as proposed to be amended under Items 1A, 1B and 1C
of Schedule 1 of the Bill.
Schedule 3 Proposed amendments to the
Special Broadcasting Act 1991
Item 1 – Insertion of definition of datacasting licence in
subsection 3(1)
This item inserts a definition of datacasting
licence in subsection 3(1) (the definition clause) of the SBS Act. This term is
used in the proposed new section 6A.
For the purposes of the SBS Act, it
is proposed that the term datacasting licence will have the same meaning as in
the BSA. In the BSA, a datacasting licence means a licence to provide a
datacasting service under Schedule 6 of that Act.
Item 2 –
Insertion of definition of datacasting service in subsection 3(1)
This item inserts a definition of datacasting service in subsection 3(1)
(the definition clause) of the SBS Act. This term is used in the proposed new
section 6A. For the purposes of the Act, the term datacasting service will have
the same meaning as in the BSA.
In the BSA, a datacasting licence means
a service that delivers content:
• whether in the form of text; or
• whether in the form of data; or
• whether in the form of speech, music or other sounds; or
• whether in the form of visual images (animated or otherwise); or
• whether in any other form; or
• whether in any combination of forms;
to persons having
equipment appropriate for receiving that content, where the delivery of the
service uses the broadcasting services bands.
Item 3 –
Insertion of new section 6A
Item 3 inserts a new section 6A which
provides that where the SBS applies for and receives a datacasting licence then,
in addition to the SBS Charter functions contained in section 6 of the SBS Act,
the SBS has the function of providing a datacasting service under, and in
accordance with the conditions of, the licence. This provision mirrors subclause
40(1) of Schedule 6 of the current BSA.
This provision does not require
the SBS to provide datacasting services. It provides the SBS with the ability to
choose how to best use its transmission capacity by enabling it, for example, to
use all the available digital transmission capacity to provide multi-channelled
national television broadcasting services rather than datacasting services, if
it so chooses.
The SBS would have the power under section 44 of the SBS Act
to apply for a datacasting licence. The SBS would be able to apply its money in
relation to the datacasting function under section 58.
Where, as a
consequence of new subsection 6A(1), it becomes a function of the SBS to provide
a datacasting service, any business or other activity related to the performance
of the datacasting function will be an authorised business for the purposes of
subsection 52(2). When performing the datacasting function, the SBS will be
subject to the datacasting regime in Schedule 6 of the BSA in the same way as
other datacasters.
New subsection 6A(2) provides that subsection 6A(1) is
not intended to impose any obligation on the corporation in relation to the
provision of a datacasting licence, beyond the obligations imposed on the SBS by
the datacasting licence. It is intended that this subsection will prevent the
SBS being compelled by court proceedings to carry out datacasting functions
without affecting the ability to take enforcement action under the BSA in
relation to licensing requirements.
Section 10 of the SBS Act sets out the duties of the SBS Board. Paragraph
10(1)(j) provides that it is a duty of the Board to develop codes of practice
relating to programming matters and to notify those codes to the Australian
Broadcasting Authority.
Item 4 replaces current paragraph 10(1)(j) with a
new paragraph which provides that it is a duty of the Board to develop codes of
practice in relation to both programming matters, and in relation to a
datacasting service where the SBS has the function of providing a datacasting
service under new section 6A. The SBS will be required to notify those codes to
the Australian Broadcasting Authority, and a breach of a datacasting code of
practice by the SBS would be subject to the complaints mechanism contained
Division 2 of Part 11 of the BSA Act, as proposed to be amended under Items 1A,
1B and 1C of Schedule 1 of the Bill.