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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
BROADCASTING LEGISLATION AMENDMENT
BILL (NO. 3) 2002
EXPLANATORY
MEMORANDUM
(Circulated by authority of the
Minister for
Communications, Information Technology and the Arts,
Senator the Honourable
Richard Alston)
The Broadcasting Legislation Amendment Bill (No. 3) 2002 (the Bill)
amends the Broadcasting Services Act 1992 (the BSA) to:
• replace the current requirement that national and commercial television broadcasters must transmit at least 20 hours of HDTV programs each week (commencing from specified dates) with an annual minimum requirement of 1040 hours;
• clarify that where only part of a television program meets the requirements of a HDTV program, that part should be considered a HDTV program for the purposes of the HDTV quota obligations, and provide that a HDTV program may include limited extracts of archival material;
• provide that a HDTV program is to include advertisements, community service announcements, station or program promotions or similar material broadcast during the program; and
• provide that the statutory review of HDTV quota arrangements
currently scheduled to be conducted by 1 January 2004, be conducted by 1 July
2005.
The proposed changes give effect to the Government’s 2001
election policy that it would consider amendments to the digital broadcasting
regime in relation to HDTV arrangements.
The BSA currently requires
broadcasters to transmit at least 20 hours per week of HDTV programs in digital
mode on the HDTV version of their service in each area from two years after the
commencement of the simulcast period in that area. The Broadcasting Legislation
Amendment Bill (No. 1) 2002, introduced into Parliament earlier these sittings,
has the effect of delaying the commencement of the HDTV obligations in mainland
State capitals until 1 July 2003.
The current provisions in the BSA do
not allow the HDTV quota requirements to be met through averaging over any
period longer than one week. The Bill amends the requirements so that the
broadcasters are required to transmit at least 1040 hours per year of HDTV
programs in digital mode in that area on the HDTV version of the service (from
two years after the commencement of the simulcast period in their area or from 1
July 2003, whichever is the later).
This will provide greater flexibility
to broadcasters in the way they meet the quota and avoid situations where
programming decisions are made to satisfy the quota that are not commercially
sensible. At the same time it will ensure that HDTV programming is available
for people who wish to purchase HDTV receivers.
The current legislation
does not indicate how non-HD material included in HD programming is to be
accounted for in the HD quota. This Bill contains amendments that make it clear
that where only part of a television program meets the requirements of a HDTV
program, only that part should be considered a HDTV program for the purposes of
the HDTV quota obligations. In cases where HDTV programs contain insubstantial
amounts of archival material, that material may be counted towards the total
quota requirements for HDTV programming.
The Bill also includes
provisions making it clear that any advertising or sponsorship, community
service announcement, station or program promotion, news break or weather
bulletin or similar material broadcast during a HD program or part of a HD
program can be counted for quota purposes.
The amendments contained in
the Broadcasting Legislation Amendment Bill (No. 1) mean that HDTV transmissions
will not be required to commence until 1 July 2003. There would be very little
experience on which to base the review if it were conducted at the time
currently required, by 1 January 2004. Therefore, the Bill proposes that the
review into HDTV quotas be delayed so that the Minister must cause it to be
conducted by 1 July 2005, two years after the commencement of HDTV requirements.
The Bill is to commence on Royal Assent.
The Bill will not have a significant financial impact.
NOTES ON CLAUSES
Clause 1 – Short title
Clause 1 provides for the
citation of the Broadcasting Legislation Amendment Act (No. 3) 2002 (the
Act).
Clause 2 – Commencement
Clause 2 of the Bill
provides that the Act will commence on Royal Assent.
Clause 3
– Schedule(s)
By virtue of this clause, provisions of the BSA
are amended as set out in the Schedule to the Bill.
Schedule 1 – Amendment of the
Broadcasting Services Act 1992
Item 1
– Clause 1 of Schedule 4
Clause 1 of Schedule 4 is a
simplified outline of the Schedule.
Clause 1 is amended by this item so
that it refers to reviews of various aspects of Schedule 4 by “specified
dates”, rather than specifying a number of dates.
This amendment
is made for the following reasons:
• item 11 below delays the review of HDTV quotas;
• in any event, clause 1 does not currently accurately list review
dates provided for in Schedule 4, because some review provisions were inserted,
and dates for some reviews were changed, by parliamentary amendments to earlier
legislation.
Item 2 – Paragraph 37E(2)(b) of
Schedule 4
This amendment is consequential on item 3 below.
Item 3 – After subclause 37E(2A) of Schedule
4
This item inserts a new subclause 37E(2B) into Schedule 4.
The effect of this item is to change the HDTV quota requirement for
commercial television broadcasting licensees in non-remote areas from 20 hours
per week to 1040 hours per calendar year (which is an average of 20 hours per
week).
The “phase-in period” concept is inserted into
clause 37E by Broadcasting Legislation Amendment Bill (No. 1) 2002, which has
the effect of delaying the start of HDTV quota requirements in mainland State
capitals for 6 months, ie until 1 July 2003.
In non-remote areas
outside the mainland State capitals, the HDTV quota requirements commence 2
years after the start of the relevant simulcast period.
Simulcast
periods commence at various dates in various areas. In cases where a simulcast
period in a particular area does not start on 1 January in a year, new
paragraphs 37E(2B)(b) and (c) allow broadcasters in that area to satisfy the
annual quota for the remaining part of the first calendar year on a pro-rata
basis. If the simulcast period starts in the last 3 months of a calendar year,
broadcasters may satisfy the quota on a pro-rata basis over a longer period of
up to 15 months.
Item 4 – Subclause 37EA(7)
of Schedule 4
This item repeals and re-enacts subclause
37EA(7) of Schedule 4, as a consequence of new subclause 37E(2B) (inserted by
item 3 above).
The substantive difference between the current and new
provisions is that the reference to the 20 hour weekly quota is changed to a
reference to the annual quota provided for by new subclause 37E(2B).
Item 5 – Subclause 37EA(10) of Schedule 4
(definition of HDTV 20 hour requirement)
This item
repeals a definition which is made redundant by new subclause 37E(2B) (inserted
by item 3 above).
Item 6 – Paragraph
37F(2)(b) of Schedule 4
Item 7 – After subclause 37F(2A) of Schedule 4
Item 8 – Subclause 37FA(7) of Schedule 4
Item 9 – Subclause 37FA(10) of Schedule 4
(definition HDTV 20 hour requirement)
Items 6 to 9 make
amendments to the provisions relating to HDTV quotas for national
broadcasters in non-remote areas (ie clauses 37F and 37FA of Schedule 4). These
amendments correspond to the amendments made by items 2 to 5 above to the
provisions relating to HDTV quotas for commercial broadcasters in
non-remote areas (ie clauses 37E and 37EA of Schedule 4).
Item 10 – Clause 37L of Schedule
4
This item repeals and re-enacts clause 37L of Schedule 4,
which defines “high-definition television program” for the purposes
of the Schedule.
The substantive changes to clause 37L are to:
• clarify that where only part of a television program meets the requirements of a HDTV program, that part should be considered a HDTV program for the purposes of the HDTV quota obligations (see the qualification “to the extent that” in new paragraphs 37L(1)(a), (1)(b), (2)(a), (2)(b), (2)(c) and (2)(d));
• provide that a HDTV program may include an insubstantial proportion of extracts of non-HDTV “archival material” (see new subclauses 37L(3) and (4)); and
• provide that a HDTV program is to include advertising and
sponsorship, community service announcement, station or program promotion, news
break or weather bulletin or similar material broadcast during the program (see
the references to “incidental material” in new paragraphs 37L(1)(a),
(1)(b), (1)(c), (2)(a), (2)(b), (2)(c), (2)(d) and (2)(e), and new subclause
37L(6)).
“Archival material” is essentially non-HDTV material
which was originally produced before 1 July 2003 (the first date on which HDTV
programming must be transmitted) or some other date to be determined by the
Minister. In order to count towards the HDTV quota, this archival material must
be extracts of genuinely non-contemporary material which collectively represent
an “insubstantial proportion” of the total program (such as a HDTV
documentary which has “flash-backs” to historic material). If there
were greater amounts of archival material in a program, then none of the
archival material would count towards the quota. For example, if a composite
program of non-contemporary non-HDTV material were merely bound together by a
presenter filmed in HDTV, then only the scenes with the presenter would count
towards the quota.
For HDTV quota purposes, non-HDTV incidental material
such as advertisements in an otherwise HDTV program or HDTV program segment, can
be counted towards the duration of that program or program segment. For
example, where a program that was scheduled to run for a commercial hour, say
between 7.30 to 8.30 pm, was made up of HDTV material except for the
advertisements and news breaks shown during that hour, it would count for a full
hour towards the quota. Similarly, where only part of a program meets the
requirements for HDTV, those advertisements broadcast during the HDTV part of
the program would count towards the duration of the program for the purposes of
the HDTV quota.
Item 11 – Clause 60A of
Schedule 4
This item amends clause 60A of Schedule 4 to extend
the deadline for the review of HDTV quotas for 18 months, from 1 January 2004 to
1 July 2005. The heading to clause 60A is also amended accordingly.