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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
BROADCASTING
LEGISLATION AMENDMENT BILL (NO. 2) 2002
EXPLANATORY
MEMORANDUM
(Circulated by authority of the
Minister for
Communications, Information Technology and the Arts,
Senator the Honourable
Richard Alston)
BROADCASTING LEGISLATION AMENDMENT BILL (NO. 2)
2002
OUTLINE
The Broadcasting Legislation Amendment Bill (No. 2) 2002 (the Bill) amends
the Broadcasting Services Act 1992 (BSA), the Radiocommunications Act
1992 (RA) and the Broadcasting Services (Transitional Provisions and
Consequential Amendments) Act 1992 to:
• provide for new
licensing arrangements for community television (CTV) services (Schedule
1);
• improve licensing arrangements for community broadcasting
(Schedule 2); and
• repeal the remaining provisions of the
Broadcasting Act 1942 dealing with political advertisements which the
High Court held invalid (Schedule 3).
In 1992, the Government asked the Australian Broadcasting Authority (ABA)
to conduct a trial of CTV using the vacant sixth television channel (Channel 31)
in Australia. CTV has operated on a trial basis since 1994.
A statutory
review of CTV, The Future of Community Television, conducted under clause
60C of Schedule 4 to the BSA, was tabled in Parliament in June 2002.
The review took into account:
• a report on the trial of
CTV prepared by the ABA;
• submissions received from interested
parties following the release of a discussion paper on digital transmission of
CTV; and
• a consultant’s analysis of the costs of digital
carriage of CTV.
The review concluded that:
• an immediate
or short-term transition to digital transmission for the CTV sector is not
necessary; and
• consideration should be given to providing greater
regulatory certainty and stronger accountability and governance measures for the
sector.
In August 2002, the Department of Communications, Information
Technology and the Arts released a discussion paper on a legislative proposal
for regulating CTV and related community broadcasting issues. Responses to this
paper indicated general support for the legislative proposals to provide an
environment in which the sector will have greater regulatory certainty with
stronger accountability and governance arrangements.
Schedule 1 of the
Bill responds to the issues raised in the review by establishing a new CTV
licensing framework in large part based upon that which is currently in place
for community broadcasters in Part 6 of the BSA. The new framework introduces
requirements aimed at improving the corporate governance and accountability of
CTV licensees. The new measures are intended to balance the need for ongoing
financial viability of the CTV sector with the need to ensure that the sector
maintains its community and not-for-profit nature.
The proposed
amendments would:
• assist the revenue raising ability of the CTV
sector by increasing the period for which a community television broadcasting
licensee can broadcast sponsorship announcements from 5 to 7 minutes in any hour
(item 12 of Schedule 1);
• improve the corporate governance and
accountability of CTV licensees by:
- requiring a CTV licensee to be a
company limited by guarantee within the meaning of the Corporations Act
2001 (items 4 and 5 of Schedule 1); and
- enabling the ABA to impose
conditions on all CTV licences dealing with matters such as community access to
air-time, governance and provision of annual reports to the ABA (items 6 to 8 of
Schedule 1);
• make it clear that it is the Parliament’s
intention that CTV services are to be regulated in a manner that causes them not
to operate in the same way as commercial television broadcasting services (items
6 to 8 of Schedule 1); and
• draw a balance between the revenue
raising requirements for the CTV sector and the community and not-for-profit
nature of the sector by imposing conditions on CTV licensees in relation to sale
of air-time which:
- prohibit sale of more than 2 hours of air-time in
any day to an individual business which operates for profit or as part of a
profit-making enterprise (unless it assists education or learning);
- prohibit sale of more than 8 hours of air-time in any day in aggregate
to businesses which operate for profit or as part of profit-making enterprises;
and
- prohibit sale of more than 8 hours of air-time in any day to a
particular person (items 6 to 8 of Schedule 1).
The new licensing
framework will also provide more certainty about access to spectrum for CTV
licensees than CTV operators have under the trial arrangements. Spectrum
currently used for CTV broadcasting will be able to continue to be used for
analog CTV transmission until 31 December 2006 (the end date of the moratorium
for the allocation of new commercial licences specified in section 28 of the
BSA). Arrangements for the digital carriage of CTV broadcasting services will
be reconsidered prior to the expiration of the moratorium. The date the
relevant spectrum can be used for analog transmission of CTV would be able to be
extended by disallowable instrument to deal with a situation where the
Government decides, closer to that time, that analog CTV should continue. These
arrangements will ensure that the relevant spectrum currently used for CTV
broadcasting services is available for use for other digital services if
alternative arrangements for digital carriage of CTV broadcasting services
become available and it is appropriate to cease analog
transmission.
Items 14 and 15 of Schedule 1 give effect to the necessary
legislative requirements by amending the Radiocommunications Act 1992 to
ensure that a transmitter licence for a CTV service will have effect only until
the later of 31 December 2006 or a date specified in a determination by the
Minister.
Other provisions will:
• exclude community
television services provided to remote Indigenous communities from the
definition of a CTV licence as these services will not have the resources to
meet the higher governance and accountability requirements placed on CTV
licensees (items 1 to 3 and 13 of Schedule 1);
• remove the
requirement that the ABA must determine standards in relation to
children’s programs that are to be observed by community television
licensees (items 9, 10 and 16 of Schedule 1);
- the requirement for such
standards is inappropriate for a sector whose programming is developed by
community groups of whom none may produce children’s programming;
and
• make a minor technical amendment (item 11 of Schedule
1).
This Schedule contains amendments to improve licensing arrangements for
community broadcasting generally. The main changes are:
• to
reinforce the community and not-for-profit nature of the community broadcasting
sector by making it a condition of community broadcasting licences that the
licensee will provide the service for community purposes and will not operate
the service for profit or as part of a profit-making enterprise (item 10 of
Schedule 2);
• to provide the Australian Broadcasting Authority
(ABA) with more discretion to review community broadcasting licences when
deciding whether to renew them by:
- allowing the ABA to take into
account on renewal the same matters that it has regard to in deciding whether to
allocate a licence (items 4 and 5 of Schedule 2);
- removing the
restriction which limits the ABA when considering issues of suitability to only
take into account a narrow range of matters relating to business record, trust
and candour and prior convictions (item 1 of Schedule 2); and
- enabling
the ABA, when renewing a licence, to consider a change to the community interest
the licensee is required to represent (item 9 of Schedule 2);
• to
require applications for renewal of community broadcasting licences to be made
between 26 weeks and one year before expiry (items 2 and 3 of Schedule
2);
- the ABA will be able to require a particular licensee to lodge an
early renewal application to give itself sufficient time to conduct an
investigation or hearing;
• to make a minor amendment to the rule
defining a “sponsorship announcement” in the BSA to include an
acknowledgment of financial support of a program provided on the
licensee’s service (item 8 of Schedule 2);
- the amendment would
solve a technical legal problem for community radio stations which broadcast
syndicated programs carried by the Community Radio Satellite service which
include sponsorship announcements in the source programs;
• allow
codes of practice to be developed by industry representatives of community
broadcasting licensees whose services target remote Indigenous communities
(items 6 and 7 of Schedule 2);
- the amendment is necessary because of
the large number of licensed remote Indigenous community television services
which need to be treated separately to CTV services.
Items 11 and 12 of
Schedule 2 contain application and transitional provisions which apply to
various items in Schedule 2.
This Schedule contains items that amend section 28 of the Broadcasting
Services (Transitional Provisions and Consequential Amendments) Act 1992
which provides that the Broadcasting Act 1942 is repealed
except for certain provisions. These provisions relate to Part IIID of that Act
which prohibited political advertisements during election periods and provided
for free election broadcast time. That Part was held to be invalid by the High
Court in Australian Capital Television v Commonwealth (1992) 177 CLR
106.
The amendments are expected to have no significant impact on Commonwealth
expenditure or revenue.
NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides for the citation of
the Broadcasting Legislation Amendment Act (No. 2) 2002 (the
Act).
Clause 2 - Commencement
Clause 2 of the Bill provides
for the commencement of the Act.
Schedules 1 and 2, relating to
community broadcasting, will commence 28 days after the day on which the Act
receives Royal Assent. Delayed commencement is appropriate for these amendments
because the community broadcasting sector and the ABA will need time to prepare
for the new licensing arrangements. In particular, the ABA will need to make an
instrument under new section 8B of the BSA determining remote Indigenous
communities after Royal Assent, but before Schedules 1 and 2 commence.
Schedule 3, and sections 1 to 3 of the Act, will commence on the day the
Act receives Royal Assent.
Clause 3 – Schedule(s)
By
virtue of this clause, provisions of the BSA and other Acts are amended as set
out in the Schedules to the Bill, and the transitional, application and savings
provisions have effect according to their terms.
There are three
Schedules to the Bill. The Schedules of the Bill make amendments as
follows:
• Schedule 1 – BSA and RA;
• Schedule 2
– BSA;
• Schedule 3 – Broadcasting Services
(Transitional Provisions and Consequential Amendments) Act 1992.
Schedule 1 amends the BSA and the RA to improve the regulatory framework
for the community television (CTV) sector. The new CTV licensing framework will
be based on that which is currently in place for community broadcasters in Part
6 of the BSA, with some changes applying specifically to CTV broadcasting
licences.
More stringent governance and accountability requirements will
be imposed on CTV licensees through the imposition of additional licence
conditions. However, these changes will not apply to a licensee providing a
community television broadcasting service that targets, to a significant extent,
a remote Indigenous community. New arrangements are provided for program
standards and codes of practice for community television broadcasting services.
Provision is also made for changes to be made to planning provisions for
broadcasting spectrum in the RA to give CTV broadcasters more certainty than
they have under the current trial arrangements.
Item 1 – Subsection 6(1)
Item 1 inserts a definition
for the new term, “CTV licence”, in subsection 6(1). The definition
is based on the existing definition of community broadcasting licence, but
specifies that the service provides television programs.
A service that
is targeted, to a significant extent, to one or more “remote Indigenous
communities” (see items 2 and 3 below) is excluded from the definition of
CTV licence and hence from the amendments relating to CTV licensing. At
present, these do not have the resources to meet the higher governance and
accountability requirements placed on CTV licensees.
Item 2 –
Subsection 6(1)
Item 2 inserts a signpost definition of
“remote Indigenous community”, pointing to new section 8B of the
BSA, inserted by item 3.
Item 3 inserts new section 8B into the BSA, which defines a “remote
Indigenous community”.
Subsection 8B(1) provides that a particular
Indigenous community is a remote Indigenous community if so determined by the
ABA. The determination must be made in writing.
Subsection 8B(2)
provides that a determination made by the ABA under subsection 8B(1) is a
disallowable instrument.
A large number of television services provided
to remote Indigenous communities were developed under the Broadcasting for
Remote Aboriginal Communities Scheme. These services are currently licensed as
community television broadcasting services under the BSA. The instrument under
new section 8B will identify the relevant remote communities whose services will
not be subject to the more stringent regulatory requirements applying to CTV
licensees.
Item 4 – Subsection 81(1)
Item 4 repeals
the existing subsection 81(1), and substitutes new subsection 81(1).
The
substantive difference between the existing and new provisions is new paragraph
81(1)(a), which has the effect that a CTV licence can only be issued to a
company limited by guarantee (within the meaning of the Corporations Act
2001). This will ensure that CTV licensees are subject to appropriate
accountability and reporting requirements imposed by the Corporations Act
2001.
New paragraph 81(1)(b) effectively re-enacts the existing
suitability requirements. It provides that a licence will not be issued if the
ABA decides that subsection 83(2) applies to the applicant. Under subsection
83(2), if the ABA is satisfied that allowing a particular company to provide
community broadcasting services would lead to a significant risk of an offence
against the BSA or the regulations, or a breach of a licence condition, the
community broadcasting licence will not be issued.
Item 5 –
Subsection 81(2)
Item 5 makes a minor technical amendment to
subsection 81(2) as a consequence of item 4 above.
Item 6 – At
the end of section 86
Item 6 inserts new subsection 86(2).
Existing section 86 provides that each community broadcasting licence is
subject to the conditions set out in Part 5 of Schedule 2 (paragraph 86(a)), and
any other conditions imposed under section 87 (paragraph 86(b)).
New
subsection 86(2) provides that in addition to the above conditions, a CTV
licensee will also be subject to any conditions imposed under the new section
87A (see item 8 of this Schedule).
Item 7 – At the end of
subsection 87(5)
Item 7 inserts new paragraph 87(5)(c).
Existing subsection 87(1) provides that the ABA may, by notice in
writing, vary or revoke a condition of the licence, or impose an additional
condition on a particular community broadcasting licence.
Existing
subsection 87(5) provides that a notice given under subsection 87(1) must not be
inconsistent with determinations and clarifications under section 19 (paragraph
87(5)(a)), or standard conditions set out in Part 5 of Schedule 2 of the BSA
(paragraph 87(5)(b)).
New paragraph 87(5)(c) provides that where the
licence is a CTV licence, a determination made under subsection 87(1) must not
be inconsistent with any conditions imposed under new section 87A (see item 8 of
this Schedule).
Item 8 – After section 87
Item 8
inserts new section 87A into the BSA.
Section 87A imposes additional
conditions on all CTV licensees and provides a mechanism for the ABA to impose
further conditions. New subsection 87A(1) makes it clear that it is the
Parliament’s intention that CTV services are to be regulated in a manner
that causes them not to operate in the same way as commercial television
broadcasting services.
Additional standard conditions relating to
sale of access to air-time
The ABA would have regard to the
Parliament’s intention as expressed in new subsection 87A(1) in exercising
its powers under new section 87A.
The conditions relating to sale of
access to air-time imposed by new subsections 87A(2) to (5) are intended to draw
a balance between the revenue raising requirements for the CTV sector and the
community and not-for-profit nature of the sector.
New subsection 87A(2)
imposes a condition on all CTV licences preventing a licensee from selling
access to more than 2 hours of air-time per day to any person who operates a
business for profit or as part of a profit-making enterprise. The condition in
subsection (2) does not apply to sale of air-time to a company that has a sole
or dominant purpose of assisting a person in education or learning. This is
intended to allow the sale of more than 2 hours of air-time per day by CTV
licensees to commercial subsidiaries of universities and other educational
institutions.
New subsection (3) imposes a condition on all CTV licences
preventing a licensee from selling access to a combined total of more than 8
hours of air-time per day to people who operate businesses for profit or as part
of a profit-making enterprise.
New subsection (4) imposes an additional
condition on all CTV licenses preventing a licensee from selling access to more
than 8 hours of air-time per day to a particular person.
New subsection
(5) is an anti-avoidance measure. It is aimed at preventing businesses from
entering into contrived arrangements to purchase air-time from CTV licensees in
excess of the limits by splitting purchases amongst related companies or amongst
persons in a position to exercise control of the company such as directors or
senior executives. For the purposes of subsections (2) to (4), subsection (5)
treats sale of access to air-time to a person who is in a position to exercise
control of the company as sale to the company itself. The existing control
provisions (the definition of “control” in section 6, and Schedule
1) will apply here. Subsection (5) also treats sale of access to air-time to a
“related body corporate” (within the meaning of the Corporations
Act 2001) as sale to the company itself.
New subsection (12) defines
the terms “sell”, “access” and “air-time” so
that in effect sale of access to air-time means a licensee entering into an
arrangement under which a person (usually the licensee) receives consideration
in cash or kind in return for providing a third party the right to select or
provide programs to be broadcast on the licensee’s service during a period
of time.
Additional conditions imposed by the ABA relating to sale of
access to air-time
New subsection (6) allows the ABA to impose, by
written determination, other conditions relating to sale of access to air-time
on all CTV licences. This power would need to be exercised if, over time, CTV
licensees were to become too commercial in character as a result of sale of
air-time activities.
Additional conditions imposed by the ABA relating
to other matters
New subsection (7) allows the ABA to impose, by
disallowable instrument, other conditions on all CTV licences. The ABA may, for
example, impose conditions relating to:
a) community access to
air-time;
b) the governance of CTV licensees; and
c) the provision
of annual reports to the ABA.
Paragraph 87A(7)(a), which refers to
community access to air-time, enables minimum obligations for community access
to be set. The ABA may seek to impose minimum access and programming
obligations to ensure that relevant community stakeholders have sufficient
access to air time on the service.
Paragraph 87A(7)(b) refers to
conditions relating to the governance of a licensee. An example of a condition
which could be imposed in relation to governance of a CTV licence is a
requirement to include provisions in the constitution of the company which
require members of the company to be not-for-profit organisations.
Paragraph 87A(7)(c) specifically allows the ABA to require the provision
of annual reports, and to require that reports be provided in an approved form.
This is intended to ensure the ABA can effectively monitor the management of the
CTV service and the CTV licensee’s compliance with licence
conditions.
These examples do not limit the conditions which may be
imposed under subsection (7).
Changes to conditions
New
subsection 87A(8) provides that the ABA may, by written determination, vary or
revoke any condition imposed by or under section 87A.
This power extends
to the conditions relating to sale of access to air-time imposed by subsections
(2) to (5) above. This flexibility is important so that the ABA is able to
adjust the conditions as appropriate in light of its experience of their
operation and the needs of the sector. In particular, the conditions may need
to be varied if it becomes apparent that businesses are entering into contrived
arrangements to avoid their operation and the non-commercial nature of the
sector is consequently put at risk.
New subsection 87A(9) provides that
the ABA must, before taking any action in relation to licence conditions under
subsection (6), (7) or (8), seek public comment on the proposed
action.
New subsection 87A(10) provides that any action taken by the ABA
under subsection (6), (7) or (8) must not be inconsistent with determinations
and clarifications under section 19 (paragraph 87A(10)(a)), or conditions set
out in Part 5 of Schedule 2 of the BSA (paragraph 87A(10)(b)). This provision
ensures that any additional conditions imposed by the ABA on CTV licensees will
not conflict with the standard conditions applying to all community
broadcasters.
The ABA would be expected to take into account the general
policy underlying section 87A, set out in subsection 87A(1) above, when it
considers either the desirability of taking action under subsection (6), (7) or
(8) to change the section 87A conditions, or the detail of any proposed changes
to the conditions.
Any action by the ABA under subsection (6), (7) or (8)
would also be subject to Parliamentary scrutiny through the disallowance process
(see new subsection (11)).
Item 9 – Subsection
122(1)
Item 10 – Subsection 122(3)
The
substantive effect of the amendments made by items 9 and 10 is to remove the
obligation on the ABA to determine mandatory standards for community television
broadcasters relating to children’s programs (see existing paragraph
122(1)(b) and subsection 122(3)). The requirement for such standards is
inappropriate for a sector whose programming is developed by community groups of
whom none may produce children’s programming.
The existing
requirements in section 122 for standards for commercial television relating to
children’s programs and Australian content are unaffected.
Item
11 – Paragraph 9(1)(b) of Schedule 2
Item 11 makes a technical
correction to paragraph 9(1)(b) of Schedule 2 of the BSA.
Item 12
– Subclause 9(3) of Schedule 2
Item 12 provides that subclause
9(3) of Schedule 2 of the BSA is repealed, and new subclause 9(3) of Schedule 2
is substituted.
The substantive difference between the existing and the
new provision is to increase the maximum amount of sponsorship announcements
which may be broadcast by community television broadcasting licensees from 5
minutes per hour to 7 minutes per hour. This is intended to assist the revenue
raising ability of the CTV sector.
Item 13 – Subclause 9(6) of
Schedule 2
Item 13 amends subclause 9(6) of Schedule 2 as a
consequence of the new provisions which exclude remote Indigenous community
services from the new CTV licensing arrangements (see items 1 to 3 above).
Radiocommunications Act 1992
Item 14 –
Subsection 103(4)
Item 15 – After subsection
103(4)
The amendments made by items 14 and 15 will provide more
certainty about access to spectrum for CTV licensees than CTV operators have
under the trial arrangements.
Items 14 and 15 amend section 103 of the
Radiocommunications Act 1992. The significant substantive difference
between the existing and new provision is new paragraph 103(4A)(c). (New
paragraphs 103(4A)(a) and (b) correspond to the existing provisions in
paragraphs 103(4)(a) and (b).)
The effect of the amendments is that
spectrum currently used for CTV broadcasting will be able to continue to be used
for analog CTV transmission until 31 December 2006, which is the end date of the
moratorium for the allocation of new commercial licences specified in section 28
of the BSA (see new subparagraph 103(4A)(c)(i)). Arrangements for the digital
carriage of CTV broadcasting services will be reconsidered prior to the
expiration of the moratorium.
The date the relevant spectrum can be
used for analog transmission of CTV will be able to be extended by disallowable
instrument to deal with a situation where the Government decides, closer to that
time, that analog CTV should continue (see new subparagraph 103(4A)(c)(ii) and
subsection 103(4B)).
These arrangements will ensure that the relevant
spectrum currently used for CTV broadcasting services is available for use for
other digital services if alternative arrangements for digital carriage of CTV
broadcasting services become available and it is appropriate to cease analog
transmission.
Item 16 – Saving provision relating to item 9
Item 16
is a saving provision related to item 9, which amends the standard-setting power
in section 122 of the BSA. Item 16 ensures the continued validity of standards
made by the ABA under section 122 before commencement.
Schedule 2 – Community broadcasting
licences
Part 1 – Amendments
Broadcasting Services Act 1992
Item 1 –
Subsection 83(3)
Item 1 amends subsection 83(3) so that the ABA, when
considering whether or not an applicant is a suitable company for allocation of
a community broadcasting licence, is not limited to considering only the narrow
range of matters relating to business record, trust and candour and prior
convictions set out in that subsection.
The amendment will make section
83 consistent with section 41, which is the equivalent provision for commercial
broadcasting licences.
Item 2 – Subsection
90(1)
Item 3 – After subsection 90(1)
Section 90
currently requires an application for renewal of a community broadcasting
licence to be made between 20 weeks and one year before expiry. Items 2 and 3
amend section 90 to require the renewal application to be made between 26 weeks
and one year before expiry (see new paragraph 90(1A)(a)).
The ABA will
be able to require a particular licensee to lodge an early renewal application
(see new paragraph 90(1A)(b)).
It is expected that the ABA would choose
to notify an applicant that an application for renewal will be due earlier than
the due date where the ABA is aware of concerns about the operation of a service
and decides that a renewal investigation or hearing will be necessary. Specific
criteria are not imposed to limit the exercise of the power to alter the renewal
date as it is intended that the ABA have administrative flexibility in
determining when an early application for renewal is warranted.
It is
not proposed to grant a licensee a right to merits review in respect of the
decision to require a renewal application to be made by an earlier date
specified by the ABA. The decision to move the closing date for applications
forward is a procedural matter, and providing a right to merits review in
respect of this decision would potentially frustrate and delay the
administrative process. The rights of the licensee to adequate notice of the
change are protected by the requirement that at least 4 weeks notice be given by
the ABA (see new subsection 90(1B)). This will give the licensee sufficient
time to comply with the new deadline.
Item 4 – Subsection
91(1)
Item 5 – After subsection 91(2)
Items 4 and
5 amend section 91 of the BSA to allow the ABA to take into account on renewal
the same matters that it has regard to under subsection 84(2) in deciding
whether to allocate a licence (see in particular new subsection 91(2A)).
The amendments thus allow the ABA to refuse to renew a licence where the
applicant no longer meets the criteria set out in subsection 84(2). For
example, the ABA may refuse to renew a licence where the licensee no longer has
the capacity to provide the service (paragraph 84(2)(c)).
It will not be
mandatory for the ABA to give detailed consideration to every licence renewal
application against the criteria in subsection 84(2). Rather, the ABA will have
a discretion as to whether it conducts a renewal inquiry, and as to the matters
it considers in any inquiry. For most community licence renewals, it is
expected that the ABA will not have received substantial complaints about the
service and will not consider it necessary to have regard to the matters in
paragraphs 84(2)(a) to (f).
It is not proposed to provide a licensee
seeking renewal of a licence with a right to seek merits review where the ABA
exercises its power to refuse to renew a licence. A decision made by the ABA
under subsection 84(2) of the BSA to allocate a licence is not subject to merits
review (section 84(2) is not listed in section 204 of the BSA, which sets out
those matters which may be appealed to the Administrative Appeals Tribunal). As
the allocation decision is not reviewable, it would not be appropriate for the
corresponding decision on renewal of the licence to be reviewable.
Item 6 – Paragraph 123(1)(b)
Item 7 – After
paragraph 123(1)(b)
The amendments to section 123 made by items 6 and
7 allow separate codes of practice to be developed under new paragraph
123(1)(ba) by industry representatives of community broadcasting licensees whose
services target remote Indigenous communities. This is necessary because of the
large number of remote Indigenous community television services which need to be
treated differently to CTV services. The amendments will give remote Indigenous
community broadcasters the flexibility to develop codes that better meet their
circumstances.
Item 8 – Paragraph 2(2)(b) of Schedule
2
Item 8 makes a minor amendment to the provision which defines a
“sponsorship announcement” so that it includes an acknowledgment of
financial support of a program provided on the licensee’s service.
Currently a sponsorship announcement must acknowledge financial support of the
licensee.
The amendment will solve a technical legal problem for
community radio stations which broadcast syndicated programs carried by the
Community Radio Satellite service. Some of these syndicated programs include
sponsorship announcements acknowledging support of the station that produced the
source program, rather than the station retransmitting the program.
Item 9 – Paragraph 9(2)(b) of Schedule 2
The licence
condition in existing paragraph 9(2)(b) of Schedule 2 requires a community
broadcasting licensee to continue to represent the community interest that it
represented when the licence was allocated.
Item 9 amends that
condition so that it requires the licensee to continue to represent the
community interest that it represented when the license was allocated or last
renewed. This will enable the ABA, when renewing a licence, to consider a
change to the community interest that the licensee is required to represent.
The amendment recognises that a community broadcasting service should be able to
evolve with the community, and would allow the ABA to consider a submission from
a licensee that the community interest it represents has evolved since the
licence was allocated.
Item 10 – At the end of subclause 9(2)
of Schedule 2
Existing subclause 9(2) of Schedule 2 of the BSA sets
out standard licence conditions applying to all community broadcasting
licensees. Item 10 adds new standard licence conditions to subclause 9(2) of
Schedule 2 (new paragraphs 9(2)(d) and 9(2)(e)).
Paragraph 9(2)(d)
obliges the community broadcasting licensee to provide the broadcasting service
for community purposes. Paragraph 9(2)(e) requires the licensee not to operate
the service for profit or as part of a profit-making enterprise.
Both
of these additional licence conditions are intended to reinforce the community
and not-for-profit nature of the community broadcasting sector, consistently
with the definition of “community broadcasting services” in
paragraphs 15(a) and (b) of the BSA. The licence conditions reinforce the
distinction between community broadcasting and commercial broadcasting, and
ensure that the licensee is focused on servicing the needs of the relevant
community.
Part 2 – Application and transitional provisions
Item 11 – Application of items 2 and 3
Item 11 covers
the circumstance where a licensee is less than 30 weeks away from the expiry of
its licence at the time the amendments commence.
This item provides
that in these situations, existing section 90 will apply, giving the licensee
until 20 weeks before expiry to make its renewal application.
Item 12
– Transitional provision relating to items 6 and 7
Item 12 is a
transitional provision which relates to items 6 and 7, the items amending
section 123 of the BSA, which deals with codes of practice for classes of
licensees.
An existing registered code of practice applicable to all
community radio broadcasting licensees will continue to apply
until:
• in the case of non-Indigenous community radio
broadcasters, either:
− a code for non-Indigenous community radio
broadcasters is registered (see subitem 12(1) and paragraph 12(2)(a)); or
− a general replacement code for all community radio broadcasters
is registered within 3 months of the commencement of the Act (see subitem 12(1),
paragraph 12(2)(b) and subitem 12(7)); and
• in the case of
Indigenous community radio broadcasters, either:
− a code for
Indigenous community radio broadcasters is registered (see subitem 12(1) and
paragraph 12(3)(a)); or
− a general replacement code for all
community radio broadcasters is registered within 3 months of the commencement
of the Act (see subitem 12(1), paragraph 12(3)(b) and subitem 12(7)).
If a general replacement code for all community radio broadcasters is
registered within 3 months of the commencement of the Act, that general
replacement code will operate as if the amendments to section 123 had not been
made (see subitems 12(4) and 12(7)), until:
• in the case of
non-Indigenous community radio broadcasters, a code for non-Indigenous community
radio broadcasters is registered (see subitem 12(5)); and
• in the
case of Indigenous community radio broadcasters, a code for Indigenous community
radio broadcasters is registered (see subitem 12(6)).
This provision
ensures the continued operation of the existing community radio broadcasting
code, and allows a replacement code to be registered to govern the broadcasting
operations of all community radio licensees for the duration of the period from
the commencement of the Act until the registration of separate codes of practice
for Indigenous and non-Indigenous community broadcasting licensees under the new
paragraphs 123(b) and 123(ba) of the BSA. Such a replacement code would
continue in force until such time as codes of practice were developed for those
subclasses under the new provisions, and these codes were included on the
Register of codes of practice.
Item 1 – Subsection 28(1)
Item 2 –
Subsections 28(2) and (3)
This Schedule contains items that amend
section 28 of the Broadcasting Services (Transitional Provisions and
Consequential Amendments) Act 1992 (the Transitional Act). Section 28 of
the Transitional Act provides that the Broadcasting Act 1942 (the
1942 Act) is repealed except for certain provisions. The provisions which were
not repealed relate to Part IIID of the 1942 Act, which prohibited political
advertisements during election periods and provided for free election broadcast
time. That Part was held to be invalid by the High Court in Australian
Capital Television v Commonwealth (1992) 177 CLR 106.
Items 1 and 2
amend section 28 of the Transitional Act so that the remaining provisions of the
1942 Act are repealed.