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1998-99
THE PARLIAMENT OF THE COMMONWEALTH
OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
BROADCASTING
SERVICES AMENDMENT BILL (No. 4) 1999
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Communications, Information
Technology and the
Arts, Senator the Hon Richard Alston)
ISBN: 0642 426732
BROADCASTING SERVICES AMENDMENT BILL (No. 4)
1999
OUTLINE
The Broadcasting Services Amendment Bill (No. 4) 1999 (the Bill) makes
amendments to the Broadcasting Services Act 1992 (BSA), the
Radiocommunications Act 1992 (RA) and a minor amendment to the
Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act).
The Bill contains a new scheme for the regulation of international
broadcasting services that are transmitted from Australia. The scheme is being
introduced because there is currently no regulatory regime in relation to
international broadcasting from Australia. The Bill enables the Minister for
Foreign Affairs to determine whether an international broadcasting service is
likely to be contrary to the national interest. In determining this, the
Minister for Foreign Affairs will have regard in particular to the likely effect
of the service on Australia’s international relations.
The
amendments to the BSA establish a scheme for the regulation of international
broadcasting and make the necessary consequential amendments to the BSA.
Proposed new Part 8B of the BSA requires an Australian company who wishes to
provide an international broadcasting service to apply to the ABA for an
international broadcasting licence. If the ABA verifies the applicant's
corporate status and does not find the applicant to be unsuitable, the ABA must
refer the application to the Minister for Foreign Affairs, who will make a
national interest assessment as to whether the proposed international
broadcasting service is likely to be contrary to the national
interest.
The Minister for Foreign Affairs may direct the ABA not to
allocate a licence to an applicant if, in the opinion of the Minister for
Foreign Affairs, the proposed service is likely to be contrary to the national
interest. Alternatively, if he or she has no objection to the allocation of the
licence as a result of the national interest assessment, the Minister for
Foreign Affairs must direct the ABA to allocate the licence.
Division 3
of new Part 8B sets out the licence conditions for international broadcasting
licences. These conditions all deal with keeping records of broadcasts, and
providing such records to the ABA as requested.
Division 4 of new Part 8B
includes the prohibition on providing an international broadcasting service
without a licence, and provides for the ABA to issue a notice to a person who is
providing an unlicensed international broadcasting service directing the person
to cease to provide the service. Division 4 also contains an offence for breach
of conditions of an international broadcasting licence, and empowers the ABA to
cancel an international broadcasting licence if an international broadcasting
licensee has not commenced to provide a service 2 years after the licence was
allocated. In addition, the Minister for Foreign Affairs may, if he or she is
of the opinion that a service is contrary to the national interest, direct the
ABA to do one of the following things: give a formal warning to the licensee,
suspend the licence, or cancel the licence.
Division 5 of new Part 8B
provides for the ABA to assist the Minister for Foreign Affairs by preparing a
report about whether a specified international broadcasting service complies
with the international broadcasting guidelines that will be developed by the
ABA, and by obtaining records of broadcasts from an international broadcasting
licensee.
The Bill also makes a number of amendments to the
Radiocommunications Act 1992 (RA). These amendments ensure that only
persons who have an international broadcasting licence allocated by the ABA
under the BSA may be issued with a transmitter licence authorising operation of
a transmitter for transmitting an international broadcasting service by the
Australian Communications Authority (ACA).
The amendments to the RA also
require the ACA to cancel a transmitter licence that authorises use of a
transmitter to transmit an international broadcasting service where each
international broadcasting licence that authorised the provision of an
international broadcasting service has been cancelled by the ABA or surrendered
to the ABA.
The Bill also contains a minor amendment to the
Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) so that
decisions of the Minister for Foreign Affairs in relation to the proposed new
international broadcasting scheme are not subject to the requirement in the
AD(JR) Act to provide a statement of reasons.
FINANCIAL IMPACT STATEMENT
A person who makes an application to the ABA for an international
broadcasting licence will be required to pay a fee to the ABA. The fee will be
determined by the ABA. Under section 207 of the BSA, the fee must be calculated
on a cost-recovery basis. A person who applies to the ACA for a licence to
operate a radiocommunications transmitter to transmit an international
broadcasting service will be required to pay an application fee determined by
the ACA. Under section 53 of the Australian Communications Authority Act
1997, the fee must be calculated on a cost-recovery basis. In addition, a
radiocommunications transmitter licence tax is required to be paid annually.
The amount of this tax is determined by the ACA under the Radiocommunications
(Transmitter Licence Tax) Act 1983.
AD(JR) Act: Administrative Decisions (Judicial Review) Act
1977
The Office of Regulation Review did not require a Regulation Impact Statement
in relation to the measures contained in the Bill.
Clause 1 provides for the Act to be cited as the Broadcasting Services
Amendment Act (No.4) 1999.
Clause 2 provides for the Act to commence on the day on which it receives
the Royal Assent.
Clause 3 provides that each Act that is specified in a Schedule is amended as
set out in applicable items in the Schedule.
Part 1 - Amendments
Administrative Decisions
(Judicial Review) Act 1977
Item 1 – Proposed amendment
of Schedule 2 of the Administrative Decisions (Judicial Review) Act 1977
Item 1 adds a new paragraph (zc) to the end of Schedule 2 of the
AD(JR) Act. Schedule 2 of the AD(JR) Act sets out administrative decisions in
Commonwealth legislation that are not subject to the requirement in section 13
of the Act that a decision maker provide a statement of reasons to a person who
requests a statement of reasons under the AD(JR) Act.
The item has the
effect that decisions of the Minister for Foreign Affairs under proposed new
Part 8B of the BSA, which deals with international broadcasting services, are
not decisions in relation to which the Minister for Foreign Affairs is required
to provide a statement of reasons.
Under proposed new Part 8B of the BSA,
the Minister for Foreign Affairs may make the following decisions:
(a) that
he or she is of the opinion that an application for an international
broadcasting licence should be refused because the proposed service is likely to
be contrary to Australia's national interest;
(b) that he or she is of the
opinion that a formal warning should be given to a licensee of an international
broadcasting service because the service is contrary to Australia's national
interest;
(c) that he or she is of the opinion that a licensed international
broadcasting service should be suspended because the service is contrary to
Australia's national interest; or
(d) that he or she is of the opinion that a
licensed international broadcasting service should be cancelled because the
service is contrary to Australia's national interest.
The nature of these
decisions is such that exposure of the reasons for the decisions could itself be
contrary to Australia's national interest. For this reason, the Minister for
Foreign Affairs is not required to provide a statement of reasons under section
13 of the AD(JR) Act.
Broadcasting Services Act
1992
Item 2 – Proposed amendment of the Broadcasting
Services Act 1992 to insert a new paragraph 3(1)(ja)
Item 2
inserts a new paragraph 3(1)(ja) into the BSA so that the objects of the BSA
include ensuring that international broadcasting services are not provided
contrary to Australia's national interest.
Item 3 - Proposed amendment
of the Broadcasting Services Act 1992 to insert a new subsection
4(3A)
This item inserts a new subsection 4(3A) into the BSA which
provides that the regulatory policy set out in section 4 of the BSA does not
apply to Part 8B of the BSA which deals with international broadcasting
services.
Item 4 - Proposed amendment of subsection 6(1) of the
Broadcasting Services Act 1992 to insert a definition of international
broadcasting guidelines
Item 4 inserts a definition of
international broadcasting guidelines into section 6, the
interpretation section of the BSA.
Item 5 - Proposed amendment of subsection 6(1) of the Broadcasting
Services Act 1992 to insert a definition of international broadcasting
licence
Item 5 inserts a definition of
international broadcasting licence into section 6, the
interpretation section of the BSA.
Item 6 - Proposed amendment of
subsection 6(1) of the Broadcasting Services Act 1992 to insert a
definition of international broadcasting service
Item 6
inserts a definition of international broadcasting service
into section 6, the interpretation section of the BSA. The term
international broadcasting service has the meaning given by
proposed new section 18A.
Item 7 - Proposed amendment of subsection 6(1) of the Broadcasting
Services Act 1992 to insert a definition of Minister for Foreign
Affairs
Item 7 inserts a definition of Minister for Foreign
Affairs into section 6, the interpretation section of the
BSA.
Item 8 – Proposed amendment of the Broadcasting Services
Act 1992 to insert a new paragraph 11(fa)
Item 8 inserts into
section 11 of the BSA a proposed new paragraph (fa), which provides that
international broadcasting services are one of the categories of broadcasting
services under the BSA.
Item 9 – Proposed amendment of the
Broadcasting Services Act 1992 to insert a new section
11A
Item 9 inserts into the BSA a proposed new section 11A, Dual
categorisation of broadcasting services, which provides that an international
broadcasting service may also fall into another category of broadcasting
services.
Proposed new section 11A has been included to make it clear
that a broadcasting service may be both an international broadcasting service,
as defined in proposed new section 18A, and another kind of broadcasting
service. This clarification is necessary as the current categories of
broadcasting service in section 11 are intended to be mutually exclusive. An
international broadcasting service may also fall into another category of
broadcasting service where it is not only delivered to an audience outside
Australia, but is also delivered to persons in Australia.
Item 10 -
Proposed amendment of subsection 12(1) of the Broadcasting Services Act 1992
Item 10 proposes to amend subsection 12(1) of the BSA to reflect
that the method of regulating international broadcasting services is through
individual licences which are allocated by the Australian Broadcasting Authority
(ABA). Currently, commercial broadcasting services, community broadcasting
services and subscription television broadcasting services all require
individual licences allocated by the ABA. Applicants for individual licences
are subject to a suitability test as part of the application process. In
contrast, subscription radio broadcasting and subscription narrowcasting
services, and open narrowcasting services are provided under class licences. A
class licence contains conditions with which the person providing a service must
comply. However, a person need not apply for a class licence. National
broadcasting services are a category of broadcasting services, but are not
regulated by either individual or class licences.
Item 11 - Proposed
amendment of section 12 of the Broadcasting Services Act 1992
Item 11 adds proposed new subsections 12(3), 12(4), 12(5) and
12(6) to the BSA which deal with licensing of international broadcasting
services where the broadcasting service falls into the category of an
international broadcasting service and another category of broadcasting service.
Item 11 complements the proposed amendments at items 9 and 12.
Proposed
new subsection 12(3) provides that an international broadcasting service that
also falls into the category of commercial broadcasting services requires both
an international broadcasting licence and either a commercial radio broadcasting
licence or a commercial television broadcasting licence.
A service would
be an international broadcasting service if it is a service of the kind which is
described in proposed new section 18A of the BSA. Proposed new section 18A
provides that, subject to certain exceptions, international broadcasting
services are services targeted, to a significant extent, to audiences outside
Australia, where the means of delivery of the service involves the use of a
transmitter in Australia. A service is a commercial broadcasting service if it
is a service of the kind described in section 14 of the Act. As a result of
paragraph 21(b) of the AIA, references to the "general public" in section
14 mean the general public in Australia. Paragraph 21(b) of the AIA provides,
among other things, that unless the contrary intention appears, references to
localities, jurisdictions and other matters and things shall be construed as
references to localities, jurisdictions and other matters and things in and of
the Commonwealth.
Proposed new subsection 12(4) provides that an
international broadcasting service that also falls into the category of
community broadcasting services requires both an international broadcasting
licence and a community broadcasting licence.
A service would be an
international broadcasting service if it is a service of the kind which is
described in proposed new section 18A of the BSA. Proposed new section 18A
provides that, subject to certain exceptions, international broadcasting
services are services targeted, to a significant extent, to audiences outside
Australia, where the means of delivery of the service involves the use of a
transmitter in Australia. A service is a community broadcasting service if it
is a service of the kind described in section 15 of the Act. Section 15 of the
Act provides that, among other things, community broadcasting services are
services that provide programs that are made available free to the general
public. As a result of paragraph 21(b) of the AIA, references to the
"general public" in section 15 mean the general public in Australia. Paragraph
21(b) of the AIA provides, among other things, that unless the contrary
intention appears, references to localities, jurisdictions and other matters and
things shall be construed as references to localities, jurisdictions and other
matters and things in and of the Commonwealth.
Proposed new
subsection 12(5) provides that an international broadcasting service that also
falls into the category of subscription television broadcasting services
requires both an international broadcasting licence and a subscription
television broadcasting licence.
A service would be an international
broadcasting service if it is a service of the kind which is described in
proposed new section 18A of the BSA. Proposed new section 18A provides that,
subject to certain exceptions, international broadcasting services are services
targeted, to a significant extent, to audiences outside Australia, where the
means of delivery of the service involves the use of a transmitter in Australia.
A service is a subscription television broadcasting service if it is a
television service of the kind described in section 16 of the Act. Section 16
of the Act provides that, among other things, subscription broadcasting services
are services that provide programs that appear intended to appeal to the general
public, and are made available to the general public on payment of subscription
fees. As a result of paragraph 21(b) of the AIA, references to the
"general public" in section 16 mean the general public in Australia. Paragraph
21(b) of the AIA provides, among other things, that unless the contrary
intention appears, references to localities, jurisdictions and other matters and
things shall be construed as references to localities, jurisdictions and other
matters and things in and of the Commonwealth.
Proposed new subsection
12(6) provides that, where an international broadcasting service also falls into
the category of broadcasting services covered by subsection 12(2) of the BSA,
the service requires an international broadcasting licence and is to be provided
under the relevant class licence. The categories of broadcasting services
covered by subsection 12(2) of the BSA are subscription radio broadcasting and
subscription narrowcasting services and open narrowcasting services. These are
all services that are provided under class licences.
A service would be
an international broadcasting service if it is a service of the kind which is
described in proposed new section 18A of the BSA. Proposed new section 18A
provides that, subject to certain exceptions, international broadcasting
services are services targeted, to a significant extent, to audiences outside
Australia, where the means of delivery of the service involves the use of a
transmitter in Australia.
A service is a subscription radio broadcasting
service if it is a radio service of the kind described in section 16 of the Act.
Section 16 of the Act provides that, among other things, subscription
broadcasting services are services that provide programs that appear intended to
appeal to the general public, and are made available to the general public on
payment of subscription fees. As a result of paragraph 21(b) of the AIA,
references to the "general public" in section 16 mean the general public in
Australia. Paragraph 21(b) of the AIA provides, among other things, that unless
the contrary intention appears, references to localities, jurisdictions and
other matters and things shall be construed as references to localities,
jurisdictions and other matters and things in and of the Commonwealth.
A
service is a subscription narrowcasting service or an open narrowcasting service
if, among other things, its reception is limited for various reasons. As a
result of paragraph 21(b) of the AIA, references to
“reception” in sections 17 and 18 of the BSA means reception in
Australia. Paragraph 21(b) of the AIA provides, among other things, that unless
the contrary intention appears, references to localities, jurisdictions and
other matters and things shall be construed as references to localities,
jurisdictions and other matters and things in and of the Commonwealth.
It
is intended that no second licence and no class licence requirements apply where
an international broadcasting service is received wholly outside
Australia.
Item 12 - Proposed amendment of the Broadcasting
Services Act 1992 to insert a new section 18A
Item 12 inserts a
proposed new section 18A into the BSA that sets out when a service would be an
international broadcasting service.
Proposed new subsection 18A(1)
provides that international broadcasting services are services targeted, to a
significant extent, to audiences outside Australia, where:
(a) the means of
delivery of the service involves the use of a radiocommunications transmitter in
Australia; and
(b) the services comply with any determinations or
clarifications by the ABA under section 19 of the BSA.
The proposed
provision is intended to ensure that only those broadcasting services that are
targeted to an audience outside Australia and transmitted from Australia, and
not those services that are fortuitously received outside Australia, will be
subject to regulation under the BSA as international broadcasting
services.
The reference to use of a radiocommunications transmitter in
Australia is limited to use of a radiocommunications transmitter in Australia in
the normal geographical sense of Australia (as modified by the definition in new
subsection 18A(5)). It does not extend to the use of a radiocommunications
transmitter on a satellite which, under regulations made under the RA, is an
Australian satellite. While section 16 of the RA
provides that the RA applies outside Australia in relation to Australian
satellites, the BSA does not extend outside Australia.
Proposed new
subsection 18A(2) provides that a broadcasting service is not an international
broadcasting service if the service is provided either by the Australian
Broadcasting Corporation (ABC) in accordance with section 6 of the Australian
Broadcasting Corporation Act 1983 or by the Special Broadcasting Service
Corporation (SBS) in accordance with section 6 of the Special Broadcasting
Corporation Act 1991; or is an exempt broadcasting service. The
effect of this proposed new provision is that ABC and SBS Charter services and
broadcasting services of the kind set out in proposed new subsection 18A(3) are
not international broadcasting services for the purposes of the
BSA.
Proposed new subsection 18A(3) provides that a broadcasting service
is an exempt broadcasting service if all of the following conditions
apply:
(a) the service delivers only programs packaged outside Australia;
and
(b) all relevant programming decisions are made outside Australia;
and
(c) the service is transmitted from a place outside Australia to an earth
station in Australia for the sole purpose of being immediately re-transmitted to
a satellite; and
(d) the satellite is a means of delivering the
service.
Proposed new subsection 18A(3) is intended to remove from the
regulation of the BSA all satellite pass-through broadcasting services where all
of the packaging of programs and all of the programming decisions are made
outside Australia. An example of such a service would be a television service
which comprises programs packaged in the United States, where all the
programming decisions are made in the United States, that is transmitted to an
earth station in Australia by satellite or cable and is immediately
re-transmitted to a satellite which delivers the television service to
Indonesia. This exemption is intended to ensure that the amendments do not
affect any commercial proposals to make Australia a programming up-link hub for
broadcasting services delivered by satellite.
Proposed new subsection
18A(4) provides that the references to localities in proposed new section 18A
are not intended to affect the application of paragraph 21(b) of the AIA and
section 10 of the BSA to a provision of the BSA that deals with a
category of broadcasting services other than international broadcasting
services. Paragraph 21(b) of the AIA provides, among other things, that unless
the contrary intention appears, references to localities, jurisdictions and
other matters and things shall be construed as references to localities,
jurisdictions and other matters and things in and of the Commonwealth. Section
10 of the BSA provides that the BSA extends to all external
territories.
Proposed new subsection 18A(4) is included to ensure that it
is clear that the references to localities outside Australia in proposed new
subsection 18A(3) does not displace the general rule of interpretation in
paragraph 21(b) of the AIA, or rule in section 10 of the BSA.
Proposed
new subsection 18A(5) provides that, in section 18A, Australia
includes the external territories, and radiocommunications
transmitter has the same meaning as in the Radiocommunications
Act 1992. There is a definition of radiocommunications
transmitter at subsection 7(2) of that Act.
Item 13 -
Proposed amendment of paragraphs 19(1)(a) and (b) of the Broadcasting
Services Act 1992
Item 13 is a proposed amendment to include
references to proposed new section 18A in paragraphs 19(1)(a) and (b). The
effect of the item is that the ABA will have the power, by notice in the
Gazette, to determine additional criteria to those specified in section
18A, or clarify the criteria specified in section 18A, for the purposes of
distinguishing between categories of broadcasting services. Proposed new
section 18A sets out the criteria for an international broadcasting
service.
Item 14 - Proposed amendment of subsection 21(1) of the
Broadcasting Services Act 1992
Item 14 is a minor amendment
consequential upon the proposed amendment at item 9, which provides that an
international broadcasting service may also fall into another category of
broadcasting services.
Item 15 - Proposed amendment of subsection
21(2) of the Broadcasting Services Act 1992
Item 15 is a minor
amendment consequential upon the proposed amendment at item 9, which provides
that an international broadcasting service may also fall into another category
of broadcasting services.
Item 16 - Proposed amendment of subsection
21(4) of the Broadcasting Services Act 1992
Item 16 is a
minor amendment consequential upon the proposed amendment at item 9, which
provides that an international broadcasting service may also fall into another
category of broadcasting services.
Item 17 - Proposed amendment of
paragraph 21(5)(a) of the Broadcasting Services Act 1992
Item
17 is a minor amendment consequential upon the proposed amendment at item 9,
which provides that an international broadcasting service may also fall into
another category of broadcasting services.
Item 18 - Proposed
amendment of paragraph 21(5)(b) of the Broadcasting Services Act 1992
Item 18 is a minor amendment consequential upon the proposed
amendment at item 9, which provides that an international broadcasting service
may also fall into another category of broadcasting services.
Item 19
- Proposed amendment of paragraph 21(5)(b) of the Broadcasting Services Act
1992
Item 19 is a minor amendment consequential upon the
proposed amendment at item 9, which provides that an international broadcasting
service may also fall into another category of broadcasting
services.
Item 20 - Proposed amendment of subsection 21(6) of the
Broadcasting Services Act 1992
Item 20 is a minor amendment
consequential upon the proposed amendment at item 9, which provides that an
international broadcasting service may also fall into another category of
broadcasting services.
Item 21 - Proposed amendment of the
Broadcasting Services Act 1992 to insert new subsections 21(8) and
21(9)
This item proposes to add new subsections 21(8) and 21(9) to
the BSA.
Proposed new subsection 21(8) provides that the ABA must not
give an opinion under section 21 that a particular broadcasting service falls
into more than one category of broadcasting service unless one of the categories
is international broadcasting services.
Proposed new subsection 21(9)
provides that a person must not, in an application to the ABA for an opinion as
to which category of broadcasting services a broadcasting service falls into,
state an opinion that a broadcasting service falls into more than one category
of broadcasting services, unless one of the categories is international
broadcasting services. This provision has been included because subsection
21(6) of the Act provides that if the ABA does not give an opinion under section
21 within 45 days, the ABA will be taken to have given the opinion that accords
with the applicant’s opinion.
Item 22 - Proposed amendment of
the Broadcasting Services Act 1992 to insert a new Part 8B before Part
9
Item 22 inserts a new Part 8B into the BSA that deals with
international broadcasting licences.
Part 8B - International
broadcasting licences
Division 1 - Simplified outline
Proposed new section 121F of the Broadcasting Services Act
1992 - Simplified outline
Proposed new section 121F sets out a
simplified outline of proposed new Part 8B of the BSA.
Division 2 -
Allocation of international broadcasting licences
Proposed new
section 121FA of the Broadcasting Services Act 1992 - Application for
international broadcasting licence
Proposed new section 121FA
provides that a person may apply to the ABA for a licence to provide an
international broadcasting service (subsection 121FA(1)), and that the
application must be in accordance with a form approved in writing by the ABA,
and accompanied by the application fee determined in writing by the ABA
(subsection 121FA(2)).
Proposed new section 121FB of the
Broadcasting Services Act 1992 - Corporate status and
suitability
Proposed new section 121FB sets out the corporate status
and suitability requirements that must be satisfied by an applicant for an
international broadcasting licence.
Proposed new subsection 121FB(1)
provides that, if the ABA is satisfied that an applicant for an international
broadcasting licence is company that is formed in Australia, and does not decide
that the applicant is an unsuitable applicant under proposed new section 121FC,
the ABA must refer the application to the Minister for Foreign Affairs and give
the Minister a report about whether the proposed international broadcasting
service complies with the international broadcasting guidelines. The
international broadcasting guidelines are guidelines that will be developed by
the ABA in consultation with the Minister for Foreign Affairs.
Proposed
new subsection 121FB(2) provides that if the ABA is not satisfied that an
applicant for an international broadcasting licence is a company that is formed
in Australia, or decides that the applicant is an unsuitable applicant under
proposed new section 121FC, the ABA must refuse to allocate an international
broadcasting licence to the applicant.
Proposed new subsection 121FB(3)
provides that, if under subsection 121FB(2), the ABA refuses to allocate an
international broadcasting licence to an applicant, the ABA must give written
notice of the refusal to the applicant.
The effect of proposed new
section 121FB is that there are two preconditions that an applicant for an
international broadcasting licence must meet before the application is referred
to the Minister for Foreign Affairs for the national interest assessment. An
applicant must be a company formed in Australia and not be an unsuitable
applicant under proposed new section 121FC. If the applicant does not meet
these preconditions, the ABA must refuse to allocate the licence and inform the
applicant in writing.
Consideration of the corporate status and
suitability of an applicant for an international broadcasting licence by the ABA
is not intended to preclude general corporate status and suitability issues from
being considered in the context of Australia’s national interest under
proposed new Part 8B of the BSA.
Proposed new section 121FC of the
Broadcasting Services Act 1992 - Unsuitable applicant
Proposed
new section 121FC deals with when an applicant is an unsuitable
applicant.
Proposed new subsection 121FC(1) provides that the ABA may
decide that an applicant is an unsuitable applicant if it is satisfied that
allowing a particular company to provide an international broadcasting service
under an international broadcasting licence would lead to a significant risk of
either an offence against the Act or any regulations under the Act, or a breach
of the licence conditions.
Proposed new subsection 121FC(2) sets out the
factors that the ABA is to take into account in deciding whether there exists a
significant risk of either an offence against the Act or any regulations under
the Act or a breach of the licence conditions. These factors include factors
relevant to the company and persons in a position to control the company.
The effect of proposed new section 121FC is that the ABA must form a
view as to whether the applicant is an unsuitable applicant, having regard to
the factors in proposed new subsection 121FC(2). These factors are the same
factors that the ABA is required to take into account in the application process
for commercial, community or subscription television broadcasting
licences.
Proposed new section 121FD of the Broadcasting Services
Act 1992 - Australia's national interest
Proposed new section
121FD sets out the role of the Minister for Foreign Affairs in the international
broadcasting licence application process.
Proposed new subsection
121FD(1) provides that if an application for an international broadcasting
licence is referred to the Minister for Foreign Affairs by the ABA under
subsection 121FB(1), and the Minister for Foreign Affairs is of the opinion that
the proposed international broadcasting service is likely to be contrary to
Australia's national interest, the Minister for Foreign Affairs may, by written
notice to the ABA, direct the ABA not to allocate an international broadcasting
licence to the applicant. The effect of the provision is that the ABA must
refuse to allocate an international broadcasting licence to a person if, in the
opinion of the Minister for Foreign Affairs, the proposed broadcasting service
may be contrary to the national interest.
Proposed new subsection
121FD(2) provides that if an application for an international broadcasting
licence is referred to the Minister for Foreign Affairs under proposed new
subsection 121FB(1), and the Minister for Foreign Affairs is not of the opinion
that the international broadcasting service concerned is likely to be contrary
to the national interest, the Minister for Foreign Affairs must, by written
notice to the ABA, inform the ABA that he or she has no objection to the
allocation of an international broadcasting licence to the
applicant.
Proposed new subsection 121FD(3) provides that, for the
purposes of proposed new section 121FD, in determining whether a proposed
international broadcasting service is likely to be contrary to Australia's
national interest, the Minister for Foreign Affairs must have regard to the
likely effect of the proposed service on Australia's international
relations.
Proposed new subsection 121FD(4) provides that, for the
purposes of proposed new section 121FD, in determining whether a proposed
international broadcasting service is likely to be contrary to Australia's
national interest, the Minister for Foreign Affairs may have regard to a report
given by the ABA under proposed new subsection 121FB(1).
The effect of
proposed new subsection 121FD(4) is that the Minister for Foreign Affairs may
have regard to the ABA report about whether the proposed international
broadcasting service complies with the international broadcasting guidelines.
The Minister for Foreign Affairs may also have regard to any other material that
he or she considers relevant.
Proposed new subsection 121FD(5) requires
the Minister for Foreign Affairs to make reasonable efforts to, within 60 days
of a referral from the ABA of an application for an international broadcasting
licence, either direct the ABA not to allocate the licence because he or she is
of the opinion that the proposed international broadcasting service is likely to
be contrary to the national interest, or inform the ABA that he or she does not
object to the allocation of an international broadcasting licence to the
applicant.
Proposed new subsection 121FD(6) provides that, if the
Minister for Foreign Affairs directs the ABA not to allocate an international
broadcasting licence to an applicant, the ABA is required to give written notice
of the direction to the applicant.
Proposed new section 121FE of the
Broadcasting Services Act 1992 - Allocation of
licence
Proposed new section 121FE provides that if the Minister for
Foreign Affairs informs the ABA under subsection 121FD(2) of the BSA that he or
she has no objection to the allocation of an international broadcasting licence
to an applicant, the ABA must allocate the licence to the applicant.
The
effect of proposed new section 121FE is that the ABA has no discretion in
relation to the allocation of an international broadcasting licence once the
Minister for Foreign Affairs has informed the ABA that he or she has no
objection on national interest grounds to the allocation of the
licence.
Division 3 - Obligations of international broadcasting
licensees
Proposed new section 121FF of the Broadcasting
Services Act 1992 - Conditions of international broadcasting licences
Proposed new section 121FF sets out the conditions to which each
international broadcasting licence is subject. A licensee of an international
broadcasting licence is subject to the following conditions:
(a) to make a
record of programs broadcast on the service in a form approved by the
ABA;
(b) to retain this record of broadcast for 90 days after the broadcast;
and
(c) to make this record available to the ABA on request and free of
charge.
The purpose of the record keeping licence conditions is to ensure
that the ABA will receive from licensees records of broadcasts if the ABA
requests these records of broadcasts on behalf of the Minister for Foreign
Affairs under proposed new section 121FN.
Division 4 -
Remedies
Proposed new section 121FG of the Broadcasting
Services Act 1992 - Prohibition on providing an international broadcasting
service without a licence
Proposed new subsection 121FG(1) provides
that a person is guilty of an offence if the person intentionally provides an
international broadcasting service and does not have a licence to provide that
service and is reckless as to that fact. The penalty for this offence is 20,000
penalty units. Currently a penalty unit is $110, so the current penalty is
$2,200,000. Under subsection 4B(3) of the Crimes Act 1914, if a body
corporate is convicted of an offence against a Commonwealth law, the Court may
impose a penalty of up to 5 times the amount of the maximum penalty that could
be imposed on a natural person.
Proposed new subsection 121FG(2) provides that a person who contravenes
subsection 121FG(1) is guilty of a separate offence in respect of each day
during which the contravention continues. Section 213 of the BSA provides
that the maximum penalty for each day that an offence that is a continuing
offence continues is 10% of the maximum penalty for the principal
offence.
Proposed new section 121FH of the Broadcasting Services
Act 1992 - Notice for providing an international broadcasting service
without a licence
Proposed new subsection 121FH(1) provides for the
ABA to issue a notice to a person who the ABA is satisfied is providing an
international broadcasting service without a licence for that service, directing
that person to cease providing the service.
Proposed new subsection
121FH(2) provides that a person is guilty of an offence if the person has been
issued with a notice by the ABA under subsection 121FH(1) and the person
intentionally fails to comply with the notice. The penalty for this offence is
20,000 penalty units. Currently a penalty unit is $110, so the current penalty
is $2,200,000. Under subsection 4B(3) of the Crimes Act 1914, if a body
corporate is convicted of an offence against a Commonwealth law, the Court may
impose a penalty of up to 5 times the amount of the maximum penalty that could
be imposed on a natural person.
Proposed new subsection 121FH(3)
provides that a person who contravenes subsection 121FH(2) is guilty of a
separate offence in respect of each day during which the contravention
continues. Section 213 of the BSA provides that the maximum penalty for each day
that an offence that is a continuing offence continues is 10% of the maximum
penalty for the principal offence.
Proposed new section 121FJ of the Broadcasting Services Act 1992 -
Offence for breach of conditions of international broadcasting licence
Proposed new section 121FJ provides that a person is guilty of an
offence if the person is an international broadcasting licensee, and the person
intentionally breaches a condition of the licence. The penalty is 2,000 penalty
units, which is currently $220,000.
Subsection 4B(3) of the Crimes
Act 1914 would not apply to this penalty as the offence only applies to
licensees and applicants for licences must be a company.
Proposed new
section 121FK of the Broadcasting Services Act 1992 - Cancellation of
licence if service does not commence within 2 years
Proposed new
section 121FK provides for cancellation of an international broadcasting licence
by the ABA if the licensee does not start providing the service within 2 years.
Proposed new section 121FK also requires the ABA to give written notice of the
intention to cancel a licence, and to notify the ACA that an international
broadcasting licence has been cancelled.
Proposed new subsection 121FK(1)
empowers the ABA to cancel a licence if the person who was allocated the licence
has not commenced to provide the international broadcasting service within 2
years of allocation of the licence. This provision is intended to ensure that a
national interest assessment, which is part of the licence allocation process
for an international broadcasting licence, will be reasonably current when the
proposed service commences. As the ABA will have the discretion to cancel the
licence, and is required to seek representations from a licensee if the ABA is
proposing to cancel the licence, the ABA will be obliged to take any matters
raised by the licensee into account before cancelling the licence under this
proposed new provision.
Proposed new subsection 121FK(2) requires the
ABA to give the licensee notice of its intention to cancel a licence under
subsection 121FK(1), and to provide a licensee with a reasonable opportunity to
make representations in relation to the proposed cancellation. This is intended
to ensure that the ABA takes all relevant issues into account in any decision to
cancel a licence under proposed new section 121FK.
Proposed new
subsection 121FK(3) provides that, if the ABA cancels a licence under subsection
121FK(1), the ABA must notify the cancellation to the ACA. This provision is
relevant to the proposed amendments in the Bill to the Radiocommunications
Act 1992 (RA) which include that the ABA must cancel a transmitter licence
that authorises the operation of a radiocommunications transmitter used to
transmit an international broadcasting service, where the international
broadcasting licence that authorises the provision of the international
broadcasting service has been cancelled or surrendered (see proposed new section
128A of the RA).
Proposed new section 121FL of the Broadcasting
Services Act 1992 - Formal warning, or cancellation or suspension of
licence, where service is contrary to Australia's national interest
Proposed new section 121FL provides for formal warning, suspension
and cancellation of international broadcasting licences by the ABA, on the
direction of the Minister for Foreign Affairs, on national interest grounds.
Proposed new section 121FL provides the Minister for Foreign Affairs with a
choice of three enforcement options so that he or she may choose the option that
he or she believes is warranted in the circumstances. The Minister for Foreign
Affairs is not, for example, required to direct the ABA to issue a formal
warning to an international broadcasting licensee before he or she may direct
the ABA to suspend or cancel an international broadcasting
licence.
Proposed new subsection 121FL(1) provides that, if the Minister
for Foreign Affairs is of the opinion that a licensed international broadcasting
service is contrary to the national interest, and the Minister for Foreign
Affairs directs the ABA to issue a formal warning to the licensee, the ABA must
issue the formal warning to the licensee.
Proposed new subsection
121FL(2) provides that, if the ABA issues a formal warning to a licensee under
proposed new subsection 121FL(1), the ABA must notify the warning to the
ACA.
Proposed new subsection 121FL(3) provides that if the Minister for
Foreign Affairs is of the opinion that a licensed international broadcasting
service is contrary to the national interest, and the Minister for Foreign
Affairs directs the ABA to suspend the licence for a period specified in the
direction, the ABA must suspend the licence for the period specified in the
direction. If the holder of an international broadcasting licence has been
informed by the ABA that its licence has been suspended, and the service
continues during that period of suspension, the holder of the licence would be
guilty of the offence of providing an international broadcasting service without
a licence (proposed new section 121FG).
Proposed new subsection 121FL(4)
provides that, if the ABA suspends a licence under subsection 121FL(3), the ABA
must notify the suspension to the ACA.
Proposed new subsection 121FL(5)
provides that, if the Minister for Foreign Affairs is of the opinion that a
licensed international broadcasting service is contrary to the national
interest, and the Minister for Foreign Affairs directs the ABA to cancel the
licence, the ABA must cancel the licence.
Proposed new subsection
121FL(6) provides that, if the Minister for Foreign Affairs proposes to direct
the ABA to cancel an international broadcasting licence, he or she must direct
the ABA to give the licensee written notice of that intention, and give the
licensee a reasonable opportunity to send a submission to the ABA in relation to
the proposed direction to cancel the licence, and forward any submission to the
Minister for Foreign Affairs.
Proposed new subsection 121FL(6) is
intended to provide a mechanism to ensure that before the Minister for Foreign
Affairs may direct the ABA to cancel an international broadcasting licence on
national interest grounds, the holder of the licence will have been given the
opportunity to raise any relevant matters that should be taken into account by
the Minister for Foreign Affairs before proceeding to direct the ABA to cancel
the licence.
Proposed new subsection 121FL(7) provides that, if the ABA
cancels a licence under subsection 121FL(5), the ABA must notify the
cancellation to the ACA.
Proposed new subsection 121FL(8) provides that,
in determining whether an international broadcasting service is contrary to the
national interest for the purposes of section 121FL, the Minister for Foreign
Affairs must have regard to the effect of the service on Australia's
international relations.
In determining whether an international
broadcasting service is contrary to the national interest under proposed new
subsection 121FL(8) the Minister for Foreign Affairs is not precluded from
having regard to the corporate status and continuing suitability of a
licensee.
Proposed new subsection 121FL (9) provides that, for the
purposes of proposed new section 121FL, the Minister for Foreign Affairs may, in
determining whether an international broadcasting service is contrary to the
national interest, have regard to a report given by the ABA under section 121FM.
Proposed new section 121FM provides that the Minister for Foreign Affairs may
direct the ABA to prepare a report about whether a specified international
broadcasting service complies with the international broadcasting
guidelines.
Proposed new subsection 121FL(9) has been included in section
121FL so that it is clear that an ABA report under section 121FM is not the only
source of material to which the Minister for Foreign Affairs may have regard
when he or she decides whether to direct the ABA to give a formal warning to an
international broadcasting licensee, or to suspend or cancel an international
broadcasting licence.
Division 5 - ABA to assist the Minister for
Foreign Affairs
Proposed new section 121FM of the Broadcasting
Services Act 1992 - Report about compliance with international broadcasting
guidelines
Proposed new section 121FM provides that the Minister for
Foreign Affairs may direct the ABA to prepare a report about whether a specified
international broadcasting service complies with the international broadcasting
guidelines.
Proposed new section 121FN of the Broadcasting Services
Act 1992 - Records of broadcasts
Proposed new section 121FN
provides that the Minister for Foreign Affairs may direct the ABA to obtain
specified records or copies of records of broadcasts from an international
broadcasting licensee and give the records or copies to the Minister for Foreign
Affairs.
The purpose of the provision is to ensure that, if the Minister
for Foreign Affairs wishes to review specific broadcasts which he or she is
concerned may be contrary to the national interest, he or she may direct the ABA
to acquire the relevant records of broadcasts. The licensee should have these
records as keeping records of broadcasts for 90 days and giving the records to
the ABA on request are licence conditions to which all international
broadcasting licensees are subject as a result of proposed new section
121FF.
Division 6 - Miscellaneous
Proposed new section
121FP of the Broadcasting Services Act 1992 - International broadcasting
guidelines
Proposed new subsection 121FP(1) requires the ABA to
formulate written guidelines relating to international broadcasting services.
Proposed new subsection 121FP(2) provides that international broadcasting
guidelines may deal with matters other than Australia's national interest.
Proposed new section 121FQ of the Broadcasting Services Act 1992
- Surrender of international broadcasting licences
Proposed new
subsection 121FQ(1) provides that an international broadcasting licensee may
surrender the licence by giving written notice to the ABA.
Proposed new
subsection 121FQ(2) provides that the ABA must notify the ACA if a licence is
surrendered under subsection 121FQ(1).
Proposed new section 121FR of
the Broadcasting Services Act 1992 - Complaints about international
broadcasting services
Proposed new section 121FR provides that it
is not a function of the ABA to monitor and investigate complaints concerning
international broadcasting services. However, if an international broadcasting
service also falls into another category of broadcasting services, proposed new
section 121FR does not prevent the ABA from performing its function of
monitoring and investigating complaints about the service in the service's
capacity as a service that falls into that other category.
Item 23 – Proposed amendment of section 204 of the Broadcasting
Services Act 1992 (to add a table item before item dealing with refusal to
include a code of practice in the Register)
Item 23 amends the table
in section 204 of the Act so that an appeal to the Administrative Appeals
Tribunal is available from a decision of the ABA that a company is an unsuitable
applicant for an international broadcasting licence (under proposed new section
121FC) and a decision of the ABA to cancel an international broadcasting licence
under proposed new section 121FK).
Item 24 – Proposed amendment
of subsection 214(1) of the Broadcasting Services Act
1992
This item amends subsection 214(1) of the BSA so that
subsection 214(1) contains a reference to subsections 121FG(2) and 121FH(3).
Section 214 provides for the procedure in relation to continuing offences under
the BSA. Proposed new subsections 121FG(2) and 121FH(3) provide that the
offences in subsection 121FG(1) and 121FH(2) respectively are continuing
offences.
Item 25 – Proposed amendment of subclause
1(1) of Schedule 1 of the Broadcasting Services Act 1992
Item
25 amends subclause 1(1) of Schedule 1 of the Act to include international
broadcasting licences in the list of broadcasting licences. Schedule 1 is
intended to provide a means of finding out who is in a position to exercise
control of broadcasting licences, newspapers and companies and a means of
tracing company interests. Subclause 1(1) has been amended to include
international broadcasting licences because under proposed new section 121FC, in
deciding whether an applicant for an international broadcasting licence is an
unsuitable applicant, the ABA is required to take into account the business
record of each person who would be in the position to control an international
broadcasting licence, and the record in situations requiring trust and candour
of each person who would be in the position to control an international
broadcasting licence.
Item 26 - Proposed amendment of subclause 4(4)
of Schedule 1 of the Broadcasting Services Act 1992 to amend the
definition of media company
Item 26 amends the definition of
media company in subclause 4(4) of Schedule 1 of the BSA so that
the definition includes a company that holds an international broadcasting
licence.
Radiocommunications Act 1992
Item 27
– Proposed amendment of section 5 of the Radiocommunications Act 1992
to insert a definition of international broadcasting
licence
Item 27 inserts a definition of international
broadcasting licence into section 5, the interpretation section of the
RA.
Item 28 - Proposed amendment of section 5 of the
Radiocommunications Act 1992 to insert a definition of international
broadcasting service
Item 28 inserts a definition of
international broadcasting service into section 5, the
interpretation section of the RA.
Item 29 - Proposed amendment of
section 100 of the Radiocommunications Act 1992 to insert a new
subsection 100(3B)
Item 29 inserts proposed new subsection 100(3B)
into the RA.
Proposed new subsection 100(3B) provides that the ACA must
not issue a transmitter licence authorising operation of a radiocommunications
transmitter for transmitting an international broadcasting service unless there
is in force an international broadcasting licence that authorises provision of
that service.
Proposed new subsection 100(3B) ensures that a person who wishes to provide an international broadcasting service obtains an international broadcasting licence to authorise provision of the international broadcasting service before they obtain a transmitter licence which authorises the use of a transmitter to transmit the international broadcasting service. This is intended to ensure that the national interest assessment which must take place before the ABA may allocate an international broadcasting licence to a person has been completed before the ACA is required to consider an application for a transmitter licence to authorise use of a transmitter to transmit an international broadcasting service.
Item 30 - Proposed amendment of subsection 108(2) of the
Radiocommunications Act 1992 to insert a new paragraph
108(2)(da)
Item 30 inserts a proposed new paragraph 108(2)(da) into
the RA that provides that it is a condition of a transmitter licence that the
licensee and any person authorised by the licensee under section 114 of the RA,
must not operate, or permit operation of, a transmitter for transmitting an
international broadcasting service unless there is in force an international
broadcasting licence authorising provision of that service.
Breach of the
licence condition in proposed new 108(2)(da) is an offence under section 113 of
the RA, and is a ground for the ACA to suspend or cancel a licence under
Division 6 of Part 3.3 of the RA. Including the proposed new condition in the
RA is intended to discourage the holder of a transmitter licence from
transmitting an international broadcasting service in relation to which there is
not in force an international broadcasting licence.
Item 31 - Proposed
amendment of paragraph 118(1)(d) of the Radiocommunications Act 1992
Item 31 amends paragraph 118(1)(d) of the RA so that, among the
things that a licensee must notify a person authorised to use a transmitter
under a transmitter licence, is a notice under proposed new subsection 128B(1)
cancelling the licence.
Item 32 - Proposed amendment of the
Radiocommunications Act 1992 to insert a new heading before section
125
Item 32 inserts a new heading "Subdivision A - General
Provisions" into Division 6 of Part 3.3 of the RA. This is necessary because
item 34 adds a new Subdivision B at the end of Division 6 of Part 3.3, and the
current Division 6 will become Subdivision A.
Item 33 - Proposed
amendment of section 125 of the Radiocommunications Act 1992
Item 33 amends section 125 so that all references to "this
Division" are references to "this Subdivision".
Item 34 - Proposed
amendment of the Radiocommunications Act 1992 to insert a new Subdivision
at the end of Division 6 of Part 3.3
Item 34 adds a new Subdivision B
to Division 6 of Part 3.3 which contains the special cancellation rules that
apply only in relation to transmitter licences used for the transmission of
international broadcasting services.
Proposed new section 128A provides
that Subdivision B applies to a transmitter licence if the licence authorises
the operation of a radiocommunications transmitter for transmitting one or more
international broadcasting services, and each international broadcasting licence
that authorised the provision of those international broadcasting services has
been surrendered or cancelled. Under the proposed amendments to the BSA in this
Bill, the ABA is required to notify the ACA if an international broadcasting
licence is surrendered or cancelled.
Proposed new section 128B provides
that the ACA must, by written notice to the holder of the transmitter licence,
cancel the licence and that the notice must give the reasons for cancelling the
licence. In this case, the reasons for cancelling the licence will be that the
ACA has been advised by the ABA that the international broadcasting licence in
relation to the international broadcasting service has been surrendered or
cancelled.
If a transmitter licence that authorises use of a transmitter
for transmitting an international broadcasting service also authorises use of a
transmitter for another purpose, and that transmitter licence is cancelled by
the ACA under proposed new section 128B of the RA, it is intended that the ACA
will issue a new transmitter licence in relation to that other
purpose.
Item 35 - Proposed amendment of paragraph 148(c) of the
Radiocommunications Act 1992
Item 35 amends paragraph 148(c)
so that reference to cancellation of a licence under proposed new 128B is
included in the paragraph. Section 148 of the RA requires the ACA
to update the Register of Radiocommunications Licences which the ACA is required
to establish and keep under section 143 of the RA.
Part 2 -
Transitional Provisions
Item 36 - Transitional - existing
providers of international broadcasting services
Item 36 is a
transitional provision which will be of relevance to persons who are providing
international broadcasting services when the scheme for regulating international
broadcasting commences.
Subclause (1) of this item provides that the
prohibition on providing an international broadcasting service in proposed new
sections 121FG and 121FH of the BSA, and the licence condition in proposed new
paragraph 108(2)(da) of the RA, do not apply until:
(a) if the person does
not apply for an international broadcasting service within 30 days of the
commencement of this item - the end of 30 days after the item
commences;
(b) if the person applies for an international broadcasting
licence for the service within 30 days but the licence is not allocated to the
person, the time when the person receives notification from the ABA that the
licence is refused because the person is not a company or a suitable applicant,
or because the Minister for Foreign Affairs is of the opinion that the proposed
international broadcasting service is likely to be contrary to the national
interest;
(c) if the person applies for an international broadcasting licence
and the licence is allocated to the person - the time when the licence is
allocated.
Item 36 is intended to ensure that a person who is already
providing an international broadcasting service when proposed new Part 8B
commences is given adequate time to apply for an international broadcasting
licence, during which time the offences of providing an international
broadcasting service without a licence, or failing to comply with an ABA
direction to cease providing an unlicensed international broadcasting service,
do not apply to them.
Subclause (2) of item 36 provides that if a person
was providing an international broadcasting service before the commencement of
item 36, proposed new sections 121FB and 121FD of the BSA, which refer to
proposed international broadcasting services, have effect as if the service was
a proposed service.