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Broadcasting Services Amendment Bill (No. 1) 1999

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1998-99

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

Broadcasting Services Amendment Bill (No. 1) 1999

 

 

(Amendments to be moved on behalf of the Government)

 

(1)     Clause 2, page 1 (lines 10 to 12), omit subclause (2), substitute:

             (2)  Schedule 2 commences on the 28th day after the day on which this Act receives the Royal Assent.

             (3)  Part 2 of Schedule 3 commences immediately after the commencement of the Copyright Amendment (Digital Agenda) Act 2000 .

[Commencement]

(2)     Schedule 1, item 1, page 4 (before line 15), before the definition of commercial television broadcasting service , insert:

Central-Western time zone means:

                     (a)  the area consisting of:

                              (i)  South Australia; and

                             (ii)  Broken Hill (within the meaning of the Standard Time Act 1987 of New South Wales); or

                     (b)  Western Australia; or

                     (c)  the Northern Territory; or

                     (d)  the Territory of Christmas Island; or

                     (e)  the Territory of Cocos (Keeling) Islands.

[Delayed televising in the Central-Western time zones; Section 146B—definition of Central-Western time zone]

(3)     Schedule 1, item 1, page 5 (after line 32), after section 146C, insert:

146CA  When event or series is eligible for delayed televising in the Central-Western time zones

             (1)  The Minister may, by writing, determine that a specified designated event is eligible for delayed televising in the Central-Western time zones.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

             (2)  The Minister may, by writing, determine that a specified designated series of events is eligible for delayed televising in the Central-Western time zones.

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

             (3)  To avoid doubt, the Minister may make a determination under subsection (1) even if the event concerned is part of a series of events.

             (4)  A determination under this section has effect only for the purposes of paragraphs 146KA(1)(b) and (2)(d) and 146R(1)(b) and (2)(d).

             (5)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

             (6)  A copy of a determination under this section is to be published in the Gazette .

Note:          The following is an example of a situation in which the Minister might make a determination under this section: in a case where a day-night cricket match begins at 2 pm in Sydney, delayed televising of the match in Perth would allow Perth viewers the same evening viewing time as viewers in Sydney.

[Delayed televising in the Central-Western time zones; Section 146CA—when event or series is eligible for delayed televising in the Central-Western time zones]

(4)     Schedule 1, item 1, page 8 (line 14), omit “Note”, substitute “Note 1”.

[Delayed televising in the Central-Western time zones; Section 146E—anti-hoarding rule (licensees)]

(5)     Schedule 1, item 1, page 8 (after line 14), at the end of subsection (1), add:

Note 2:       For delayed televising in the Central-Western time zones, see section 146KA.

[Delayed televising in the Central-Western time zones; Section 146E—anti-hoarding rule (licensees)]

(6)     Schedule 1, item 1, page 13 (after line 2), at the end of subsection (1), add:

Note:          For delayed televising in the Central-Western time zones, see section 146KA.

[Delayed televising in the Central-Western time zones; Section 146K—simultaneous events in a series]

(7)     Schedule 1, item 1, page 13 (after line 2), after subsection (1), insert:

          (1A)  For the purposes of paragraph (1)(c), a licensee is taken to have televised live the whole of an event if the licensee televises live all but an insubstantial proportion of the event.

Note:          For example, interruptions by way of commercial breaks, news breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event being televised.

[Simultaneous events; Section 146K—simultaneous events in a series]

(8)     Schedule 1, item 1, page 13 (after line 25), after section 146K, insert:

146KA  Delayed televising in the Central-Western time zones

             (1)  For the purposes of paragraph 146E(1)(c), if:

                     (a)  a commercial television broadcasting licensee televises, in the licence area for the licence:

                              (i)  a designated event or a designated series of events; or

                             (ii)  a part of a designated event or a part of a designated series of events; and

                     (b)  the event or series is eligible for delayed televising in the Central-Western time zones; and

                     (c)  apart from this subsection, the televising mentioned in paragraph (a) is not live; and

                     (d)  the licence area is wholly or substantially within a particular Central-Western time zone; and

                     (e)  assuming the event or series, or the part of the event or series, as the case may be, had been televised live in Sydney—the event or series, or the part of the event or series, as the case may be, is televised, as mentioned in paragraph (a), not later than the local time in that zone that is equivalent to the time at which the event or series, or the part of the event or series, as the case may be, was televised live in Sydney;

the event or series, or the part of the event or series, as the case may be, is taken to be televised live by the licensee in the licence area.

             (2)  For the purposes of paragraph 146K(1)(c), if:

                     (a)  a commercial television broadcasting licensee has the right to televise live, in the licence area for the licence, a particular designated series of events; and

                     (b)  during a particular period, 2 or more events in that series wholly or partly overlap; and

                     (c)  the licensee televises in the licence area one of those events; and

                     (d)  the series is eligible for delayed televising in the Central-Western time zones; and

                     (e)  apart from this subsection, the televising mentioned in paragraph (c) is not live; and

                      (f)  the licence area is wholly or substantially within a particular Central-Western time zone; and

                     (g)  assuming the event had been televised live in Sydney—the event is televised, as mentioned in paragraph (c), not later than the local time in that zone that is equivalent to the time at which the event was televised live in Sydney;

the event is taken to be televised live by the licensee in the licence area during that period.

             (3)  For the purposes of subsections (1) and (2), a licensee is taken to have televised live the whole of an event, or the whole of a series of events, if the licensee televises all but an insubstantial proportion of the event or series, as the case may be.

Note:          For example, interruptions by way of commercial breaks, news breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event or series being televised.

             (4)  If a commercial television broadcasting licensee has a right to televise live a substantial proportion of a designated event, this section has effect, in relation to the licensee, as if that proportion were a designated event in its own right.

             (5)  If a commercial television broadcasting licensee has a right to televise live a substantial proportion of a designated series of events, this section has effect, in relation to the licensee, as if that proportion were a designated series of events in its own right.

[Delayed televising in the Central-Western time zones; Section 146KA—delayed televising in Central-Western time zones]

(9)     Schedule 1, item 1, page 14 (after line 16), at the end of subsection (2), add:

Note:          For delayed televising in the Central-Western time zones, see section 146R.

[Delayed televising in the Central-Western time zones; Section 146L—anti-hoarding rule)]

(10)   Schedule 1, item 1, page 16 (after line 23), at the end of subsection (1), add:

Note:          For delayed televising in the Central-Western time zones, see section 146R.

[Delayed televising in the Central-Western time zones; Section 146Q—simultaneous events in a series]

(11)   Schedule 1, item 1, page 16 (after line 23), after subsection (1), insert:

          (1A)  For the purposes of paragraph (1)(c), a national broadcaster is taken to have televised live the whole of an event if the broadcaster televises live all but an insubstantial proportion of the event.

Note 1:       For example, in the case of the ABC, interruptions by way of news breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event being televised.

Note 2:       For example, in the case of the SBS, interruptions by way of commercial breaks, news breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event being televised.

[Simultaneous events; Section 146Q—simultaneous events in a series]

(12)   Schedule 1, item 1, page 16 (after line 27), after section 146Q, insert:

146R  Delayed televising in the Central-Western time zones

             (1)  For the purposes of paragraph 146L(2)(c), if:

                     (a)  a national broadcaster televises, in a coverage area:

                              (i)  a designated event or a designated series of events; or

                             (ii)  a part of a designated event or a part of a designated series of events; and

                     (b)  the event or series is eligible for delayed televising in the Central-Western time zones; and

                     (c)  apart from this subsection, the televising mentioned in paragraph (a) is not live; and

                     (d)  the coverage area is wholly or substantially within a particular Central-Western time zone; and

                     (e)  assuming the event or series, or the part of the event or series, as the case may be, had been televised live in Sydney—the event or series, or the part of the event or series, as the case may be, is televised, as mentioned in paragraph (a), not later than the local time in that zone that is equivalent to the time at which the event or series, or the part of the event or series, as the case may be, was televised live in Sydney;

the event or series, or the part of the event or series, as the case may be, is taken to be televised live by the national broadcaster in the coverage area.

             (2)  For the purposes of paragraph 146Q(1)(c), if:

                     (a)  a national broadcaster has the right to televise live, in a coverage area, a particular designated series of events; and

                     (b)  during a particular period, 2 or more events in that series wholly or partly overlap; and

                     (c)  the broadcaster televises in the coverage area one of those events; and

                     (d)  the series is eligible for delayed televising in the Central-Western time zones; and

                     (e)  apart from this subsection, the televising mentioned in paragraph (c) is not live; and

                      (f)  the coverage area is wholly or substantially within a particular Central-Western time zone; and

                     (g)  assuming the event had been televised live in Sydney—the event is televised, as mentioned in paragraph (c), not later than the local time in that zone that is equivalent to the time at which the event was televised live in Sydney;

the event is taken to be televised live by the national broadcaster in the coverage area during that period.

             (3)  For the purposes of subsections (1) and (2), a national broadcaster is taken to have televised live the whole of an event, or the whole of a series of events, if the broadcaster televises all but an insubstantial proportion of the event or series, as the case may be.

Note 1:       For example, in the case of the ABC, interruptions by way of news breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event or series being televised.

Note 2:       For example, in the case of the SBS, interruptions by way of commercial breaks, news breaks, program promotions, announcements or brief crosses to other live events would amount to an insubstantial proportion of the event or series being televised.

             (4)  If a national broadcaster has a right to televise live a substantial proportion of a designated event, this section has effect, in relation to the broadcaster, as if that proportion were a designated event in its own right.

             (5)  If a national broadcaster has a right to televise live a substantial proportion of a designated series of events, this section has effect, in relation to the broadcaster, as if that proportion were a designated series of events in its own right.

[Delayed televising in the Central-Western time zones; Section 146R—delayed televising in Central-Western time zones]

(13)   Schedule 2, item 1, page 18 (line 17), after “more”, insert “consecutive”.

[Pay TV programming in regional areas; Proposed section 121A—simplified outline]

(14)   Schedule 2, item 1, page 21 (line 1), after “more”, insert “consecutive”.

[Pay TV programming in regional areas; Proposed section 121E—ABA permission is required to provide certain television services in regional areas]

(15)   Schedule 3, page 22 (after line 2), after the heading to Schedule 3, insert:

Part 1—Amendments commencing on Royal Assent

[Re-transmission]

(16)   Schedule 3, items 1 to 4, page 22 (line 5) to page 23 (line 16), omit the items.

[Re-transmission]

(17)   Schedule 3, item 5, page 23 (table items relating to section 205P), omit the table items.

[Re-transmission]

(18)   Schedule 3, item 6, page 24 (line 1) to page 46 (line 10), omit the item.

[Re-transmission]

(19)   Schedule 3, item 7, page 46 (lines 11 and 12), omit the item, substitute:

7  Subsection 212(2)

Omit all the words after “subsection (1)”.

7A  At the end of section 212

Add:

             (3)  A reference in this section to a re-transmission does not include a reference to:

                     (a)  a re-transmission by a commercial broadcasting licensee of the programs transmitted by the licensee’s commercial broadcasting service; or

                     (b)  a re-transmission by a community broadcasting licensee of the programs transmitted by the licensee’s community broadcasting service; or

                     (c)  a re-transmission by the Australian Broadcasting Corporation of the programs transmitted by any of its national broadcasting services, being national broadcasting services covered by paragraph 13(1)(a); or

                     (d)  a re-transmission by the Special Broadcasting Service Corporation of the programs transmitted by any of its national broadcasting services.

[Re-transmission]

(20)   Schedule 3, items 14 to 20, page 49 (line 6) to page 55 (line 23), omit the items, substitute:

14  Transitional—re-transmission of programs by licensee outside licence area

(1)       This item applies if:

                     (a)  a permission was given to a commercial broadcasting licensee or a community broadcasting licensee under subparagraph 212(1)(b)(ii) of the Broadcasting Services Act 1992 ; and

                     (b)  the permission was in force immediately before the commencement of this item; and

                     (c)  the permission authorised the licensee to re-transmit, outside the licence area of the licence, programs transmitted by the licensee’s commercial broadcasting service or community broadcasting service, as the case may be.

(2)       If, apart from this subitem, the permission would expire before the end of the period of 12 months beginning at the commencement of this item, the permission is taken to expire at the end of that period.

(3)       Despite the amendments of section 212 of the Broadcasting Services Act 1992 made by this Part, that section continues to apply, after the commencement of this item, in relation to the re-transmission by the licensee of programs as mentioned in paragraph (1)(c) of this item during the period:

                     (a)  beginning at the commencement of this item; and

                     (b)  ending at the expiration of the permission;

as if those amendments had not been made.

15  Transitional—pre-commencement re-transmission of programs

Despite the amendments of section 212 of the Broadcasting Services Act 1992 made by this Part, that section continues to apply, after the commencement of this item, in relation to a re-transmission that occurred before the commencement of this item, as if those amendments had not been made.

[Re-transmission]

(21)   Schedule 3, item 21, page 55 (lines 25 to 28), omit the item, substitute:

21  After subsection 48(4)

Insert:

          (4A)  For the purposes of this section, disregard subsection 212(3) of the Broadcasting Services Act 1992 .

[Re-transmission]

(22)   Schedule 3, item 22, page 55 (lines 29 to 32), omit the item, substitute:

22  After subsection 93(2)

Insert:

          (2A)  For the purposes of this section, disregard subsection 212(3) of the Broadcasting Services Act 1992 .

[Re-transmission]

(23)   Schedule 3, page 55 (after proposed new item 22), at the end of the Schedule, add:

Part 2—Amendments commencing immediately after the commencement of the Copyright Amendment (Digital Agenda) Act 2000

Broadcasting Services Act 1992

23  Subsection 212(1)

Omit “subsection (2)”, substitute “this section”.

24  After subsection 212(2)

Insert:

          (2A)  However, the rule in subsection (2) does not prevent an action, suit or proceeding against a person under the Copyright Act 1968 for infringement of copyright subsisting in a work, a sound recording or a cinematograph film, where:

                     (a)  the infringement is in respect of the re-transmission by the person of programs as mentioned in subsection (1); and

                     (b)  the re-transmission is not provided by a self-help provider.

25  At the end of subsection 212

Add:

             (4)  In this section:

cinematograph film has the same meaning as in the Copyright Act 1968 .

self-help provider has the meaning given by section 212A.

sound recording has the same meaning as in the Copyright Act 1968 .

work has the same meaning as in the Copyright Act 1968 .

[Re-transmission]

(24)   Schedule 3, page 55 (after proposed new item 25), at the end of the Schedule, add:

26  After section 212

Insert:

212A  Self-help providers

             (1)  For the purposes of the application of section 212 to a particular re-transmission of programs, a self-help provider is:

                     (a)  a non-profit body which provides the re-transmission for the sole or principal purpose of obtaining or improving reception in a small community; or

                     (b)  a local government body which provides the re-transmission for the sole or principal purpose of obtaining or improving reception in a community located in the area served by the body; or

                     (c)  a company which operates a mine and/or related infrastructure at an isolated location and which provides the re-transmission for the sole or principal purpose of obtaining or improving reception in a community:

                              (i)  that is located in the vicinity of the mine or infrastructure, as the case may be; and

                             (ii)  that accommodates the whole or a part of the workforce for the mine or infrastructure, as the case may be; or

                     (d)  a company which operates a petroleum, oil or gas installation and/or related infrastructure at an isolated location and which provides the re-transmission for the sole or principal purpose of obtaining or improving reception in a community:

                              (i)  that is located in the vicinity of the installation or infrastructure, as the case may be; and

                             (ii)  that accommodates the whole or a part of the workforce for the installation or infrastructure, as the case may be; or

                     (e)  a person who provides the re-transmission within a building or structure for the sole or principal purpose of obtaining or improving reception for persons in the building or structure, as the case may be; or

                      (f)  a person who provides the re-transmission within one or more places that are all in the same area (within the meaning of section 36 of the Telecommunications Act 1997 ) for the sole or principal purpose of obtaining or improving reception for persons in those places; or

                     (g)  a person who is a declared self-help provider in relation to the re-transmission;

other than:

                     (h)  a subscription television broadcasting licensee; or

                      (i)  a related body corporate of a subscription television broadcasting licensee; or

                      (j)  a person who is an excluded provider in relation to the re-transmission.

             (2)  Nothing in subsection (1) limits the generality of anything else in subsection (1).

             (3)  Subsection (1) does not limit the generality of anything in section 212B.

             (4)  In this section:

declared self-help provider has the meaning given by section 212B.

excluded provider has the meaning given by section 212B.

isolated location means a place in a State or Territory that is not at a location in, or adjacent to, an eligible urban area (within the meaning of section 140 of the Fringe Benefits Tax Assessment Act 1986 ).

non-profit body means an incorporated body that:

                     (a)  is not carried on for the purposes of profit or gain to its individual members; and

                     (b)  is prohibited by its constituent document from making any distribution of money or property to its individual members.

related body corporate has the same meaning as in the Corporations Law.

(25)   Schedule 3, page 55 (after proposed new item 26), at the end of the Schedule, add:

27  Before section 213

Insert:

212B  Declared self-help providers and excluded providers

Declared self-help providers

             (1)  The Minister may, by writing, determine that a specified person who provides a re-transmission of programs for the sole or principal purpose of obtaining or improving reception is a declared self-help provider in relation to the re-transmission for the purposes of section 212A.

             (2)  The Minister may, by writing, determine that a specified person who provides a re-transmission of programs for the sole or principal purpose of obtaining or improving reception in specified circumstances is a declared self-help provider in relation to the re-transmission for the purposes of section 212A.

Excluded providers

             (3)  The Minister may, by writing, determine that a specified person who provides a re-transmission of programs is an excluded provider in relation to the re-transmission for the purposes of section 212A.

             (4)  The Minister may, by writing, determine that a specified person who provides a re-transmission of programs in specified circumstances is an excluded provider in relation to the re-transmission for the purposes of section 212A.

Determination has effect

             (5)  A determination under this section has effect accordingly.

Disallowable instrument

             (6)  A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

Note:          For specification by class, see subsection 46(2) of the Acts Interpretation Act 1901 .

[Re-transmission]

(26)   Schedule 3, page 55 (after proposed new item 27), at the end of the Schedule, add:

28  Transitional—pre-commencement re-transmission of programs

Despite the amendments of section 212 of the Broadcasting Services Act 1992 made by this Part, that section continues to apply, after the commencement of this item, in relation to a re-transmission that occurred before the commencement of this item, as if those amendments had not been made.

[Re-transmission]