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1998 - 1999 - 2000
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
BROADCASTING SERVICES
AMENDMENT BILL (No. 4) 1999
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments to be moved on behalf of the
Government
(Circulated by authority of
the Minister for Communications, Information
Technology and the Arts,
Senator the Hon Richard Alston)
ISBN: 0642 452962
BROADCASTING SERVICES AMENDMENT BILL (No. 4)
1999
Amendments to be moved on behalf of the
Government
OUTLINE
The Broadcasting Services Amendment Bill (No.4) 1999 (the Bill) amends the
Broadcasting Services Act 1992 (BSA), the Radiocommunications Act
1992 (RA) and the Administrative Decisions (Judicial Review) Act 1977
(AD(JR) Act) to:
• provide a scheme for the regulation of
international broadcasting services that are transmitted from Australia;
and
• exempt decisions of the Minister for Foreign Affairs in
relation to the proposed new international broadcasting scheme from the
requirement in the AD(JR) Act to provide a statement of reasons.
After
introduction in the House, the Bill was referred to the Senate Foreign Affairs,
Defence and Trade Legislation Committee. The Committee made the following three
recommendations:
• that the Bill be amended so that the
international broadcasting guidelines to be prepared by the Australian
Broadcasting Authority (ABA) under proposed new section 121FP be a disallowable
instrument;
• that the Bill be amended to require the Minister for
Foreign Affairs to report to Parliament reasons for any decision to refuse to
allocate an international broadcasting
licence, or to suspend or cancel an
international broadcasting licence, where the Minister refused to provide a
statement of reasons under the AD(JR) Act; and
• that the
Government give consideration to a proposal from an aspirant provider of
radiocommunications transmission services for international broadcasting that
the Bill be amended so that providers of transmission services could apply for
international broadcasting licences on behalf of content providers of
international broadcasting services, and deal with the ABA in relation to such
international broadcasting licences on behalf of content providers.
The
proposed amendments to the Bill implement the Committee’s recommendations
1 and 2 and also amend the Bill so that it includes a scheme, the nominated
broadcaster declaration scheme, to give effect to recommendation 3. The
nominated broadcaster declaration scheme is intended to allow a person who is a
provider of transmission services to broadcasters with the opportunity to apply
for international broadcasting licences on behalf of the providers of the
content of international broadcasting services, and to deal with the ABA in
relation to those licences.
The amendments also propose to amend the
RA to allow a person who wishes to apply to the ABA to be a nominated
broadcaster in relation to an international broadcasting service to be provided
by another person, to apply to the Australian Communications Authority (ACA) for
a certificate indicating that, if the conditions specified in the certificate
are met, the ACA will be disposed to issue the transmitter licence. These
amendments are intended to give a person who wishes to become a nominated
broadcaster some confidence that they will obtain the necessary transmitter
licences if the application for the international broadcasting licence is
successful. This may assist a transmission provider to obtain support from
content providers for becoming a nominated broadcaster. As the Bill provides
that the ACA must not issue a transmitter licence authorising operation of a
transmitter for transmitting an international broadcasting service unless there
is already in force an international broadcasting licence authorising provision
of that service, a transmission provider may not obtain the necessary
transmitter licences for transmitting an international broadcasting service in
advance of the allocation of the international broadcasting licence in relation
to the service under the BSA.
FINANCIAL IMPACT STATEMENT
The proposed amendments are not expected to have a significant impact on
Commonwealth expenditure or revenue.
Amendment (1)
This amendment changes the name of proposed Division 1 of Part 8B of the
BSA from “Simplified outline” to “Introduction”. Part
8B of the BSA is the proposed new part of the BSA “International
Broadcasting Licences”.
Amendment (2)
This amendment inserts an outline of the proposed new nominated
broadcaster declaration scheme in the simplified outline in the Bill at proposed
new section 121F.
This amendment inserts definitions of terms used in the proposed new
nominated broadcaster declaration scheme into the Bill as proposed new section
121FAA.
This amendment to proposed new section 121FA of the BSA ensures that it is
clear that a person may only apply to the ABA for a licence to provide an
international broadcasting service if there is not a nominated broadcaster
declaration in relation to that international broadcasting service. If there is
a nominated broadcaster declaration in relation to an international broadcasting
service a transmission provider would have satisfied the ABA that they will
apply on behalf of the content provider for a licence to provide the
international broadcasting service.
This amendment to proposed new section 121FA inserts new subsections
121FA(1A) and 121FA(1B). Proposed new subsection 121FA(1A) provides that a
person who is the holder of a nominated broadcaster declaration in relation to
an international broadcasting service proposed to be provided by a content
provider may apply to the ABA for a licence authorising the content provider to
provide the international broadcasting service. The content provider is taken
to be the applicant for the licence.
Proposed new subsection 121FA(1B)
provides that an application for an international broadcasting licence under
section 121FA may only be made on the basis of one licence per international
broadcasting service.
Amendment (6)
This amendment makes a minor amendment to proposed new subsection 121FA(2)
consequential upon Amendment (5).
These amendments to proposed new section 121FB of the BSA limit the rules
in relation to corporate status and suitability to a person who is proposing to
provide the content of an international broadcasting service.
This amendment proposes to insert new subsections (4) – (8) to
proposed new section 121FB to:
• require the ABA to make reasonable
efforts to finalise its activities in relation to an application for an
international broadcasting licence from a proposed content provider of the
international broadcasting service within 30 days (proposed new subsection
121FB(4));
• require the ABA to refer an application for an
international broadcasting licence by the holder of a nominated broadcaster
declaration on behalf of a content provider to the Minister for Foreign Affairs
with a report about whether the proposed international broadcasting service
complies with the international broadcasting guidelines, if the ABA is satisfied
that the content provider is a company and the ABA does not decide that the
content provider is an unsuitable applicant (proposed new subsection
121FB(5));
• require the ABA to refuse to allocate an international
broadcasting licence to an applicant if the application was made by the holder
of a nominated broadcaster declaration on behalf of a content provider and the
ABA is not satisfied that the content provider is a company, or the ABA decides
that the content provider is an unsuitable applicant (proposed new subsection
121FB(6));
• require the ABA to give notice of its refusal to
allocate an international broadcasting licence under subsection 121FB(6) to the
content provider and the holder of the nominated broadcaster declaration
(proposed new subsection 121FB(7)); and
• require the ABA to make
reasonable efforts to finalise its activities in relation to an application for
an international broadcasting licence from the holder of a nominated broadcaster
declaration within 30 days (proposed new subsection 121FB(8)).
Amendments (11) – (14)
These amendments to proposed new section 121FD of the BSA ensure that all
references in proposed new section 121FD to an application for an international
broadcasting licence apply both to an application for an international
broadcasting licence made by the content provider and an application made by the
holder of a nominated broadcaster declaration on behalf of a content
provider.
Amendment (15)
This amendment to proposed new section 121FD ensures that a direction to
the ABA from the Minister for Foreign Affairs not to allocate an international
broadcasting licence is notified to the applicant for the licence and the holder
of the nominated broadcaster declaration, where the holder of a nominated
broadcaster declaration has applied for the international broadcasting licence
on behalf of a content provider.
Amendment (16)
This amendment to proposed new section 121FF provides that the conditions
in section 121FF that apply to international broadcasting licences do not apply
to an international broadcasting licence if a nominated broadcaster declaration
is in force in relation to the licence. Proposed new section 121FLE duplicates
the licence conditions where there is a nominated broadcaster declaration in
force in relation to an international broadcasting licence.
Amendment (17)
This amendment inserts a new Division 4A – Nominated broadcaster
declarations into proposed new Part 8A of the BSA. The proposed new Division
sets out the detail of the nominated broadcaster declaration scheme.
Proposed new section 121FLA sets out that the main object of Division 4A
of Part 8A of the BSA is to provide for the making of nominated broadcaster
declarations that allow an international broadcasting licence and a transmitter
licence that is for use for transmitting the international broadcasting service
to be held by different people.
This proposed new section provides that a person who is the licensee of a
transmitter licence that is used, or intended to be used, for transmitting an
international broadcasting service, or who intends to apply for a transmitter
licence for transmitting an international broadcasting service, may apply to the
ABA for a nominated broadcaster declaration in relation to the provision of the
service by a particular content provider.
Proposed new subsection 121FLC(1) requires the ABA to declare that the
provision of an international broadcasting service by the content provider is
nominated in relation to a transmitter licence, or proposed transmitter licence,
if the ABA is satisfied that:
• either the content provider holds
an international broadcasting licence in relation to the international
broadcasting service, or, if the declaration is made, the transmission provider
or another person will, within 60 days after the making of the declaration,
apply for an international broadcasting licence on behalf of the content
provider; and
• the transmission provider intends to transmit the
international broadcasting service on behalf of the content provider;
and
• the transmission provider is a company that is formed in
Australia or in an external territory; and
• if the declaration were
made, the transmission provider would be in a position to comply with all the
obligations imposed on the transmission provider under proposed new section
121FLE.
Proposed new subsection 121FLC(2) requires the ABA to give copies
of a nominated broadcaster declaration to both the content provider and the
transmission provider. Proposed new subsection 121FLC(3) requires the ABA to
give notice of a refusal to make a nominated broadcaster declaration to both the
transmission provider and the content provider. Proposed new subsection
121FLC(4) requires the ABA to make reasonable efforts to make a declaration, or
refuse to make a declaration, within 30 days after the application is made.
Proposed new subsection 121FLC(5) provides that the ABA is not prevented from
making more than one nominated broadcaster declaration in relation to a
particular international broadcasting service, so long as each declaration
relates to a different transmitter licence or proposed transmitter
licence.
This proposed new section sets out that the effect of a nominated
broadcaster declaration is:
• that for the purposes of the RA, the
content provider is taken not to operate the transmitter (paragraph
121FLD(e));
• that for the purposes of the BSA, the content provider is
taken to provide the international broadcasting service (paragraph
121FLD(f));
• that for the purposes of the BSA any programs transmitted
by the licensee of the transmitter licence on behalf of the content provider are
taken to be programs transmitted by the content provider (paragraph 121FLD(g));
and
• for the purposes of Part 8A of the BSA (except section 121FLG),
the ABA is taken to have given a written notice to the content provider if the
ABA gives the notice to the licensee of the transmitter licence.
This new section imposes conditions on nominated broadcaster declarations
which mirror the conditions in proposed new section 121FF that are imposed on
international broadcasting licences where there is no nominated
broadcaster.
This new section provides that the holder of a nominated broadcaster
declaration is guilty of an offence if the person intentionally breaches a
condition of the nominated broadcaster declaration. The penalty for this
offence is 2,000 penalty units. Currently a penalty unit is $110, so the
current maximum penalty is $220,000.
This proposed new section sets out the requirements in relation to
revocation of a nominated broadcaster declaration by the ABA.
The ABA
must revoke a nominated broadcaster declaration in all of the following
circumstances:
• if the ABA is satisfied that the holder of the
declaration is neither transmitting, nor proposing to transmit, the
international broadcasting service on behalf of the content provider; or the
holder of the declaration is involved, or proposes to become involved, in the
selection or provision of programs to be transmitted on the international
broadcasting service; or the holder of the declaration is not a company that is
formed in Australia or in an external territory (proposed new subsection
121FLG(1));
• if the ABA is satisfied that, at the time the declaration
was made, there was no international broadcasting licence in relation to the
service and either no application for a licence was made under subsection
121FA(1A) within 60 days after the making of the declaration, or the licence
application was refused (proposed new subsection 121FLG(2)); or
• if
either the holder of the declaration or the content provider notify the ABA in
writing that either person does not consent to the continued operation of the
declaration (proposed new subsection 121FLG(3)).
If the ABA revokes a
declaration they must give a copy of the revocation to the person who held the
declaration and the content provider (proposed new subsection
121FLG(4)).
Proposed new subsection 121FLG(5) provides that a revocation
under subsection 121FLG(1), (2) or (3) takes effect on the date specified in the
revocation.
Proposed new subsection 121FLG(6) provides that the ABA must
not revoke a nominated broadcaster declaration under subsection 121FLG(1) or (2)
(that is a revocation other than a revocation requested by either the holder of
the declaration or the content provider) unless the ABA has first given the
holder of the declaration and the content provider a written notice setting out
a proposal to revoke the declaration and inviting a submission on the proposal
and considered any submission received from the holder of the declaration or
content provider within the time limit specified in the notice.
Proposed
new subsection 121FLG(7) requires the time limit specified in the notice to be
at least 7 days.
Proposed new subsections 121FLG(8) and (9) are intended
to ensure that a holder of a nominated broadcaster declaration and a content
provider can’t agree to prevent a request for revocation of a nominated
broadcaster declaration by the ABA. A contract to prevent a person giving
notice to the ABA that a person does not consent to the continued operation of a
declaration, or to impose any restriction on the giving of such a notice would
be void.
This proposed new section sets out the circumstances in which the ABA
must cancel an international broadcasting licence when a nominated broadcaster
declaration has been revoked, and there is an international broadcasting licence
in force. The general rule is that the ABA must cancel a licence when the
content provider is not a company formed in Australia or has not arranged for
another person who is a company formed in Australia to provide the service on
behalf of the content provider.
The ABA must cancel the international
broadcasting licence when:
• 30 days pass after the revocation of the
nominated broadcaster declaration and the ABA is satisfied that both: the
content provider is not a company formed in Australia; and the content provider
has not taken reasonable steps to arrange for the international broadcasting
service to be provided by an Australian company (proposed new paragraph
121FLH(1)(c)); or
• 90 days pass after the revocation and the ABA is
satisfied that the content provider is not a company formed in Australia
(proposed new paragraph 121FLH(2)(c)).
Proposed new subsection 121FLH(3)
allows the ABA to give a content provider a period of longer than 90 days to
arrange for the service to be provided by a company formed in Australia.
However, proposed new subsection 121FLH(4) provides that the ABA must not notify
a greater number of days unless there are exceptional circumstances. This is
intended to ensure that, while extensions of time may be granted by the ABA when
warranted, it is clear that such an extension should rarely be
granted.
Proposed new subsection 121FLH(5) imposes an obligation on the
ABA to give the content provider written notice of its intention to cancel a
licence under subsection 121FLH(1) or (2), and a reasonable opportunity to make
submissions in relation to the proposed cancellation. Proposed new subsection
121FLH(6) requires the ABA to notify the ACA of a cancellation under subsections
121FLH(1) or (2).
This proposed new section requires the ABA to maintain a register that
contains details of nominated broadcaster declarations currently in force. The
Register may be maintained by electronic means and must be made available for
inspection on the Internet.
Amendment (18)
This amendment implements a recommendation of the Senate Foreign Affairs,
Defence and Trade Committee, that the international broadcasting guidelines made
by the ABA under proposed new section 121FP of the BSA be a disallowable
instrument.
Amendment (19)
This amendment implements the second recommendation of the Senate
Defence, Foreign Affairs and Trade Committee. The amendment inserts a new
section 121FS into the BSA that requires the Minister for Foreign Affairs to
table in Parliament a copy of a statement about a decision to refuse to allocate
an international broadcasting licence to a person who applies for a licence, or
a decision to suspend or cancel an international broadcasting licence. The
Minister is only required to table the statement in Parliament if the Minister
refuses a request from a person aggrieved by a decision to refuse to allocate a
licence, or to suspend or cancel a licence, for a statement of reasons in
relation to the decision.
As a result of the amendment of the AD(JR) Act
at item 1 of Part 1 of Schedule 1 of the Bill, the Minister for Foreign Affairs
is not required to provide a statement of reasons in relation to decisions under
Part 8B of the BSA.
Amendment (20)
This amendment adds ABA decisions in relation to the nominated
broadcaster scheme to the list of decisions of the ABA that are reviewable by
the Administrative Appeals Tribunal. The decisions are: refusal to make a
nominated broadcaster declaration; revocation of a nominated broadcaster
declaration; and cancellation of an international broadcasting licence following
revocation of a nominated broadcaster declaration.
Amendment (21)
This amendment inserts a new definition into section 5 of the RA for the
term provisional international broadcasting certificate.
Amendment (22)
This amendment inserts a new subsection into section 100 of the RA which
provides that if a provisional international broadcasting certificate is in
force in relation to an application for a transmitter licence and the
application for the licence is made by the holder of the certificate, and the
conditions set out in the certificate are satisfied, the ACA must not refuse to
issue the transmitter licence unless the ACA is satisfied that there are
exceptional circumstances that warrant the refusal.
This amendment is
intended to ensure that the acquisition of a provisional international
broadcasting certificate gives the person a genuine indication that, if the
conditions in the certificate are satisfied, the ACA will issue the transmitter
licence when the application for the transmitter licence is made.
Amendment (23)
This amendment proposes to insert a new Division 10 – Provisional
international broadcasting certificates into Part 3.3 of the RA.
Proposed new Division 10 of Part 3.3 of the Radiocommunications
Act 1992
Proposed new section 131AE of the RA provides that a person who proposes
to make an application for a transmitter licence authorising operation of a
radiocommunications transmitter for transmitting an international broadcasting
service may apply to the ACA for a provisional international broadcasting
certificate in relation to the proposed application for the transmitter
licence.
Proposed new section 131AF of the RA sets out the process for the issuing
of a provisional international broadcasting certificate by the ACA.
Specifically it provides that:
• the ACA may issue such a
certificate (proposed new subsection 131AF(1));
• the certificate must
state that the ACA will be disposed to issue the transmitter licence if the
following conditions are satisfied: the applicant applies for a transmitter
licence while the certificate is in force; at the time the application is made
there is both an international broadcasting licence that authorises the
provision of the international broadcasting service concerned and spectrum is
available for the provision of that service; and any other conditions the ACA
specifies in the certificate (proposed new subsection 131AF(2));
• in
deciding whether to issue a certificate, the ACA must have regard to all the
matters to which it would be required to have regard when deciding whether to
issue the transmitter licence (other than the requirement in subsection 100(3B)
of the RA that provides that the ACA must not issue a transmitter licence that
authorises the operation of a transmitter for transmitting an international
broadcasting licence unless there is in force an international broadcasting
licence that authorises provision of that service); and may have regard to any
other matters which the ACA is permitted to have regard when deciding whether to
issue the transmitter licence; and such other matters as the ACA considers
relevant (proposed new subsection 131AF(3));
• if the ACA refuses to
issue a provisional international broadcasting certificate to a person, the ACA
must give the person written notice and a statement of reasons (proposed new
subsection 131AF(4)).
This proposed new section provides that a provisional international
broadcasting certificate comes into force on the day it was issued and remains
in force for 240 days, and that if a provisional international broadcasting
certificate expires, a person may make an application for a fresh
certificate.
Amendment (24)
This amendment inserts a new paragraph into section 285 of the RA so that
a refusal to issue a provisional international broadcasting certificate under
section 131AF is a decision that may be subject to reconsideration by the ACA,
and, subsequently, to review by the Administrative Appeals Tribunal under
section 292 of the RA.
Amendment (25)
This amendment to the transitional provisions of the Bill adds to item 36
a reference to subsection 121FB(7) consequential upon Amendment 10.
This amendment adds a new subitem (1A) to item 36 which provides that,
for the purposes of the transitional rule in subitem 36(1), if an application is
made on behalf of a content provider under subsection 121FA(1A) of the BSA, the
content provider is taken to have made the application. Under proposed new
subsection 121FA(1A) of the BSA the holder of a nominated broadcaster
declaration may apply for an international broadcasting licence on behalf of a
content provider (see Amendment 5).