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Broadcasting Services Amendment Bill 2000

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1998-1999-2000

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

Broadcasting Services Amendment Bill (No. 4) 1999

 

 

 

(1)     Schedule 1, item 22, page 8 (line 2), omit the heading to Division 1, substitute:

Division 1 Introduction

[Division 1 of Part 8B—nominated broadcaster declarations]

(2)     Schedule 1, item 22, page 8 (after line 24), at the end of section 121F, add:

•      The ABA may make declarations ( nominated broadcaster declarations ) that allow international broadcasting licences and related transmitter licences to be held by different persons, so long as the transmitter licence is held by an Australian company.

•      If a nominated broadcaster declaration is in force:

               (a)     the international broadcasting licence may be issued to a company that is not an Australian company; and

              (b)     the holder of the transmitter licence must keep records of broadcasts for 90 days; and

               (c)     the holder of the transmitter licence may receive notices on behalf of the holder of the international broadcasting licence.

[section 121F—nominated broadcaster declarations]

(3)     Schedule 1, item 22, page 8, after section 121F, insert:

121FAA   Definitions

                   In this Part:

company means a body corporate.

holder , in relation to a nominated broadcaster declaration, means the person who applied for the declaration.

nominated broadcaster declaration means a declaration under section 121FLC.

transmitter licence has the same meaning as in the Radiocommunications Act 1992 .

[section 121FAA—nominated broadcaster declarations]

(4)     Schedule 1, item 22, page 9 (line 5), at the end of subsection (1), add “if no nominated broadcaster declaration is in force in relation to that service”.

[section 121FA—nominated broadcaster declarations]

(5)     Schedule 1, item 22, page 9 (after line 5), after subsection (1), insert:

          (1A)  If a person is the holder of a nominated broadcaster declaration in relation to an international broadcasting service proposed to be provided by another person (the content provider ):

                     (a)  the holder of the declaration may, on behalf of the content provider, apply to the ABA for a licence authorising the content provider to provide the international broadcasting service; and

                     (b)  if an application is made under paragraph (a)—the content provider is taken to be the applicant for the licence.

          (1B)  An application under this section may only be made on the basis of one licence per service.

[section 121FA—nominated broadcaster declarations]

(6)     Schedule 1, item 22, page 9 (line 6), omit “The application”, substitute “An application under this section”.

[section 121FA—nominated broadcaster declarations]

(7)     Schedule 1, item 22, page 9 (line 13), after “applicant”, insert “under subsection 121FA(1)”.

[section 121FB—nominated broadcaster declarations]

(8)     Schedule 1, item 22, page 9 (line 24), after “applicant”, insert “under subsection 121FA(1)”.

[section 121FB—nominated broadcaster declarations]

(9)     Schedule 1, item 22, page 9 (line 27), omit “the applicant”, substitute “an applicant under subsection 121FA(1) for an international broadcasting licence”.

[section 121FB—nominated broadcaster declarations]

(10)   Schedule 1, item 22, page 9 (after line 32), at the end of section 121FB, add:

             (4)  If an application for an international broadcasting licence is made under subsection 121FA(1), the ABA must make reasonable efforts to either:

                     (a)  take action under subsection (1) of this section; or

                     (b)  refuse to allocate the licence;

within 30 days after the application was made.

             (5)  If the ABA:

                     (a)  is satisfied that an applicant under subsection 121FA(1A) for an international broadcasting licence is a company; and

                     (b)  does not decide that subsection 121FC(1) applies to the applicant;

the ABA must:

                     (c)  refer the application to the Minister for Foreign Affairs; and

                     (d)  give the Minister for Foreign Affairs a report about whether the proposed international broadcasting service concerned complies with the international broadcasting guidelines.

             (6)  If the ABA:

                     (a)  is not satisfied that an applicant under subsection 121FA(1A) for an international broadcasting licence is a company; or

                     (b)  decides that subsection 121FC(1) applies to an applicant under subsection 121FA(1A) for an international broadcasting licence;

the ABA must refuse to allocate an international broadcasting licence to the applicant.

             (7)  If, under subsection (6), the ABA refuses to allocate an international broadcasting licence to an applicant, the ABA must give written notice of the refusal to:

                     (a)  the applicant; and

                     (b)  the holder of the nominated broadcaster declaration concerned.

             (8)  If an application for an international broadcasting licence is made under subsection 121FA(1A), the ABA must make reasonable efforts to either:

                     (a)  take action under subsection (5) of this section; or

                     (b)  refuse to allocate the licence;

within 30 days after the application was made.

[section 121FB—nominated broadcaster declarations]

(11)   Schedule 1, item 22, page 10 (line 28), after “121FB(1)”, insert “or (5)”.

[section 121FD—nominated broadcaster declarations]

(12)   Schedule 1, item 22, page 11 (line 5), after “121FB(1)”, insert “or (5)”.

[section 121FD—nominated broadcaster declarations]

(13)   Schedule 1, item 22, page 11 (line 22), after “121FB(1)”, insert “or (5)”.

[section 121FD—nominated broadcaster declarations]

(14)   Schedule 1, item 22, page 11 (line 27), after “121FB(1)”, insert “or (5)”.

[section 121FD—nominated broadcaster declarations]

(15)   Schedule 1, item 22, page 12 (line 4), omit “direction to the applicant.”, substitute:

direction to:

                     (a)  in all cases—the applicant; and

                     (b)  in the case of an application under subsection 121FA(1A)—the holder of the nominated broadcaster declaration concerned.

[section 121FD—nominated broadcaster declarations]

(16)   Schedule 1, item 22, page 12 (after line 24), at the end of section 121FF, add:

             (2)  This section does not apply to an international broadcasting licence if a nominated broadcaster declaration is in force in relation to the international broadcasting service concerned.

Note:          Corresponding conditions apply to nominated broadcaster declarations—see section 121FLE.

[section 121FF—nominated broadcaster declarations]

(17)   Schedule 1, item 22, page 16 (after line 14), after Division 4, insert:

Division 4A Nominated broadcaster declarations

121FLA   Object of this Division

                   The main object of this Division is to provide for the making of declarations ( nominated broadcaster declarations ) that allow the following licences to be held by different persons:

                     (a)  an international broadcasting licence that authorises the provision of an international broadcasting service;

                     (b)  a transmitter licence for a radiocommunications transmitter that is for use for transmitting the international broadcasting service.

121FLB   Applications for nominated broadcaster declarations

                   If a person (the transmission provider ):

                     (a)  is the licensee of a transmitter licence for a transmitter that is used, or intended for use, for transmitting an international broadcasting service; or

                     (b)  proposes to apply for a transmitter licence for a transmitter that is intended for use for transmitting an international broadcasting service;

the transmission provider may apply to the ABA for a nominated broadcaster declaration in relation to the provision of the international broadcasting service by a particular person (the content provider ).

121FLC   Making a nominated broadcaster declaration

             (1)  After considering the application, the ABA must declare in writing that the provision of the international broadcasting service by the content provider is nominated in relation to the transmitter licence or proposed transmitter licence, if the ABA is satisfied that:

                     (a)  either:

                              (i)  the content provider holds an international broadcasting licence that authorises the provision of the international broadcasting service; or

                             (ii)  the content provider does not hold such a licence but, if the declaration were made, the transmission provider or another person will, within 60 days after the making of the declaration, apply under subsection 121FA(1A), on behalf of the content provider, for an international broadcasting licence that authorises the provision of the international broadcasting service by the content provider; and

                     (b)  the transmission provider intends to transmit the international broadcasting service on behalf of the content provider; and

                     (c)  the transmission provider is a company that is formed in Australia or in an external Territory; and

                     (d)  if the declaration were made, the transmission provider would be in a position to comply with all of the obligations imposed on the transmission provider under section 121FLE.

             (2)  The ABA must give a copy of the declaration to:

                     (a)  the transmission provider; and

                     (b)  the content provider.

             (3)  If the ABA refuses to make a nominated broadcaster declaration, the ABA must give written notice of the refusal to:

                     (a)  the transmission provider; and

                     (b)  the content provider.

             (4)  If an application is made for a nominated broadcaster declaration, the ABA must make reasonable efforts to:

                     (a)  make the declaration under subsection (1); or

                     (b)  refuse to make the declaration;

within 30 days after the application is made.

             (5)  This Part does not prevent the ABA 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.

121FLD   Effect of nominated broadcaster declaration

                   If:

                     (a)  a nominated broadcaster declaration is in force in relation to an international broadcasting service; and

                     (b)  the provision of the international broadcasting service is authorised by an international broadcasting licence; and

                     (c)  the holder of the declaration is the licensee of a transmitter licence that authorises the operation of a transmitter for transmitting the international broadcasting service; and

                     (d)  the licensee of the transmitter licence transmits the international broadcasting service on behalf of the licensee of the international broadcasting licence;

then:

                     (e)  for the purposes of the Radiocommunications Act 1992 , the licensee of the international broadcasting licence is taken not to operate the radiocommunications transmitter for any purpose in connection with that transmission; and

                      (f)  for the purposes of this Act:

                              (i)  the licensee of the international broadcasting licence is taken to provide the international broadcasting service; and

                             (ii)  the licensee of the transmitter licence is taken not to provide the international broadcasting service; and

                     (g)  for the purposes of this Act, any programs that are transmitted by the licensee of the transmitter licence on behalf of the licensee of the international broadcasting licence:

                              (i)  are taken to be programs transmitted by the licensee of the international broadcasting licence; and

                             (ii)  are not taken to be programs transmitted by the licensee of the transmitter licence; and

                     (h)  for the purposes of this Part (other than section 121FLG), the ABA is taken to have given a written notice to the licensee of the international broadcasting licence if the ABA gives the notice to the licensee of the transmitter licence.

121FLE   Conditions of nominated broadcaster declarations

             (1)  Each nominated broadcaster declaration is subject to the following conditions:

                     (a)  the holder of the declaration must cause a record of programs broadcast on the international broadcasting service concerned to be made in a form approved in writing by the ABA;

                     (b)  the holder of the declaration must retain in the holder’s custody a record so made for a period of 90 days after the broadcast;

                     (c)  the holder of the declaration must, without charge, make available to the ABA, on request, any specified record made by the holder under paragraph (a) that has been retained by the holder (whether or not the holder is, at the time of the request, under an obligation to retain the record).

             (2)  Subsection (1) does not apply to a nominated broadcaster declaration unless the holder of the declaration is the licensee of a transmitter licence that authorises the operation of a transmitter for transmitting the international broadcasting service concerned.

121FLF   Offence for breach of conditions of nominated broadcaster declaration

                   A person is guilty of an offence if:

                     (a)  the person is the holder of a nominated broadcaster declaration; and

                     (b)  the person intentionally breaches a condition of the declaration.

Penalty:  2,0 00 penalty units.

121FLG   Revocation of nominated broadcaster declaration

             (1)  The ABA must, by writing, revoke a nominated broadcaster declaration relating to the provision of an international broadcasting service by a person (the content provider ) if the ABA is satisfied that:

                     (a)  the holder of the declaration is neither transmitting, nor proposing to transmit, the international broadcasting service on behalf of the content provider; or

                     (b)  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

                     (c)  the holder of the declaration is not a company that is formed in Australia or in an external Territory.

             (2)  The ABA must, by writing, revoke a nominated broadcaster declaration relating to the provision of an international broadcasting service by a person (the content provider ) if the ABA is satisfied that:

                     (a)  at the time the declaration was made, there was no international broadcasting licence that authorised the provision of the international broadcasting service by the content provider; and

                     (b)  either:

                              (i)  no application was made under subsection 121FA(1A) for such a licence within 60 days after the making of the declaration; or

                             (ii)  an application for such a licence was made under subsection 121FA(1A) within 60 days after the making of the declaration, but the application was refused.

             (3)  The ABA must, by writing, revoke a nominated broadcaster declaration relating to the provision of an international broadcasting service by a person (the content provider ) if:

                     (a)  the holder of the declaration; or

                     (b)  the content provider;

gives the ABA a written notice stating that the holder of the declaration, or the content provider, does not consent to the continued operation of the declaration.

             (4)  The ABA must give a copy of the revocation to:

                     (a)  the person who held the declaration; and

                     (b)  the content provider.

             (5)  A revocation under subsection (1), (2) or (3) takes effect on the date specified in the revocation.

             (6)  The ABA must not revoke a nominated broadcaster declaration under subsection (1) or (2) unless the ABA has first:

                     (a)  given the holder of the declaration a written notice:

                              (i)  setting out a proposal to revoke the declaration; and

                             (ii)  inviting the holder of the declaration to make a submission to the ABA on the proposal; and

                     (b)  given the content provider a written notice:

                              (i)  setting out a proposal to revoke the declaration; and

                             (ii)  inviting the content provider to make a submission to the ABA on the proposal; and

                     (c)  considered any submission that was received under paragraph (a) or (b) within the time limit specified in the notice concerned.

             (7)  A time limit specified in a notice under subsection (6) must run for at least 7 days.

             (8)  A person must not enter into a contract or arrangement under which the person or another person is:

                     (a)  prevented from giving a notice under subsection (3); or

                     (b)  subject to any restriction in relation to the giving of a notice under subsection (3).

             (9)  A contract or arrangement entered into in contravention of subsection (8) is void.

121FLH   Cancellation of licence if declaration ceases to be in force and licensee is not an Australian company

             (1)  If:

                     (a)  a nominated broadcaster declaration ceases to be in force; and

                     (b)  the provision of the international broadcasting service concerned is authorised by an international broadcasting licence; and

                     (c)  30 days pass, and the ABA is satisfied that:

                              (i)  the international broadcasting licensee is not a company that is formed in Australia or in an external Territory; and

                             (ii)  the international broadcasting licensee has not taken reasonable steps to arrange for the international broadcasting service to be provided by a company that is formed in Australia or in an external Territory;

the ABA must cancel the licence.

             (2)  If:

                     (a)  a nominated broadcaster declaration ceases to be in force; and

                     (b)  the provision of the international broadcasting service concerned is authorised by an international broadcasting licence; and

                     (c)  90 days pass, and the ABA is satisfied that the international broadcasting licensee is not a company that is formed in Australia or in an external Territory;

the ABA must cancel the licence.

             (3)  The ABA may, by written notice given to the licensee, determine that paragraph (2)(c) has effect, in relation to the licensee, as if a reference in that paragraph to 90 days were a reference to such greater number of days as is specified in the notice.

             (4)  The ABA must not notify a greater number of days under subsection (3) unless it is satisfied that there are exceptional circumstances that warrant the greater number of days.

Notice of intention to cancel

             (5)  If the ABA proposes to cancel a licence under subsection (1) or (2), the ABA must give to the licensee:

                     (a)  written notice of its intention; and

                     (b)  a reasonable opportunity to make representations to the ABA in relation to the proposed cancellation.

Cancellation to be notified to the ACA

             (6)  If the ABA cancels a licence under subsection (1) or (2), the ABA must notify the cancellation to the ACA.

121FLJ   Register of nominated broadcaster declarations

             (1)  The ABA is to maintain a register in which the ABA includes particulars of all nominated broadcaster declarations currently in force.

             (2)  The Register may be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the Internet.

[Division 4A of Part 8B—nominated broadcaster declarations]

(18)   Schedule 1, item 22, page 17 (after line 6), at the end of section 121FP, add:

             (3)  International broadcasting guidelines are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901 .

[section 121FP—international broadcasting guidelines]

(19)   Schedule 1, item 22, page 17 (after line 19), at the end of Part 8B, add:

121FS   Statements about decisions of the Minister for Foreign Affairs

             (1)  If:

                     (a)  the Minister for Foreign Affairs makes a decision under subsection 121FD(1) or 121FL(3) or (5); and

                     (b)  a person is entitled to make an application to the Federal Court or the Federal Magistrates Court under section 5 of the Administrative Decisions (Judicial Review) Act 1977 in relation to the decision;

the person may, by written notice given to the Minister for Foreign Affairs, request the Minister for Foreign Affairs to give the person a written statement setting out the reasons for the decision.

             (2)  If a person makes a request under subsection (1) in relation to a decision, the Minister for Foreign Affairs must either:

                     (a)  as soon as practicable, and in any event within 28 days, after receiving the request:

                              (i)  prepare a written statement setting out the reasons for the decision; and

                             (ii)  give the statement to the person; or

                     (b)  both:

                              (i)  as soon as practicable, and in any event within 28 days, after receiving the request, prepare a statement about the decision; and

                             (ii)  cause a copy of the statement to be laid before each House of the Parliament within 15 sitting days of that House after the completion of the preparation of the statement.

[section 121FS—international broadcasting—statements about decisions of the Minister for Foreign Affairs]

(20)   Schedule 1, item 23, page 17, after the table row relating to cancellation of an international broadcasting licence, insert:

Refusal to make a nominated broadcaster declaration

Section 121FLC

The transmission provider or the content provider

Revocation of a nominated broadcaster declaration

Section 121FLG

The holder of the declaration, or the content provider

Cancellation of an international broadcasting licence

Section 121FLH

The licensee

[section 204—nominated broadcaster declarations]

(21)   Schedule 1, page 18 (after line 18), after item 28, insert:

28A  Section 5

Insert:

provisional international broadcasting certificate means a provisional international broadcasting certificate issued under section 131AF.

[section 5—provisional international broadcasting certificates]

(22)   Schedule 1, item 29, page 18 (after line 25), after subsection (3B), insert:

          (3C)  If:

                     (a)  a provisional international broadcasting certificate is in force in relation to an application for a transmitter licence; and

                     (b)  the application for the licence is made by the holder of the certificate; and

                     (c)  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.

[section 100—provisional international broadcasting certificates]

(23)   Schedule 1, page 19 (after line 26), after item 34, insert:

34A  At the end of Part 3.3

Add:

Division 10 Provisional international broadcasting certificates

131AE   Applications for certificates

             (1)  If a person proposes to make an application for a transmitter licence authorising operation of a radiocommunications transmitter for transmitting an international broadcasting service, the person may apply in writing to the ACA for a provisional international broadcasting certificate in relation to the proposed application for the transmitter licence.

             (2)  An application under subsection (1) must be in a form approved by the ACA.

131AF   Issuing certificates

             (1)  After considering an application under section 131AE, the ACA may issue to the applicant a provisional international broadcasting certificate in relation to the proposed application for the transmitter licence.

             (2)  The certificate must state that, if the following conditions are satisfied:

                     (a)  the applicant applies for the transmitter licence when the certificate is in force;

                     (b)  at the time when the application for the transmitter licence is made:

                              (i)  there is in force an international broadcasting licence that authorises the provision of the international broadcasting service concerned; and

                             (ii)  spectrum is available for use for the provision of that service;

                     (c)  such other conditions (if any) as are specified in the certificate;

the ACA will be disposed to issue the transmitter licence.

             (3)  In deciding whether to issue a provisional international broadcasting certificate, the ACA:

                     (a)  must have regard to all of the matters to which it would be required to have regard when deciding whether to issue the transmitter licence concerned (other than the matter mentioned in subsection 100(3B)); and

                     (b)  may have regard to:

                              (i)  any other matters to which it would be permitted to have regard when deciding whether to issue the transmitter licence concerned; and

                             (ii)  such other matters as the ACA considers relevant.

             (4)  If the ACA refuses to issue a provisional international broadcasting certificate to a person, the ACA must give written notice of the refusal to the person, together with a statement of its reasons.

131AG   Duration of certificates

             (1)  A provisional international broadcasting certificate comes into force on the day on which it was issued and remains in force for 240 days.

             (2)  If a provisional international broadcasting certificate expires, subsection (1) does not prevent the making of a fresh application for a new certificate.

[Division 10 of Part 3.3—provisional international broadcasting certificates]

(24)   Schedule 1, page 19 (after line 28), after item 35, insert:

35A  After paragraph 285(ma)

Insert:

                  (mb)  refusal to issue a provisional international broadcasting certificate under section 131AF;

[section 285—provisional international broadcasting certificates]

(25)   Schedule 1, item 36, page 20 (line 21), after “121FB(3)”, insert “or (7)”.

[item 36—nominated broadcaster declarations

(26)   Schedule 1, item 36, page 20 (after line 27), after subitem (1), insert:

(1A)     For the purposes of subitem (1), if an application for an international broadcasting licence is made on behalf of a person (the content provider ) under subsection 121FA(1A) of the Broadcasting Services Act 1992 , the content provider is taken to have made the application.

[item 36—nominated broadcaster declarations]