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Broadcasting Legislation Amendment Bill (No. 2) 2002

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2002

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

BROADCASTING LEGISLATION AMENDMENT BILL (NO. 2) 2002

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Communications, Information Technology and the Arts,

Senator the Honourable Richard Alston) 

 



 

BROADCASTING LEGISLATION AMENDMENT BILL (NO. 2) 2002

 

 

OUTLINE

 

 

The Broadcasting Legislation Amendment Bill (No. 2) 2002 (the Bill) amends the Broadcasting Services Act 1992 (BSA), the Radiocommunications Act 1992 (RA) and the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 to:

 

·          provide for new licensing arrangements for community television (CTV) services (Schedule 1);

 

·          improve licensing arrangements for community broadcasting (Schedule 2); and

 

·          repeal the remaining provisions of the Broadcasting Act 1942 dealing with political advertisements which the High Court held invalid (Schedule 3).

 

Schedule 1 - CTV licences

 

In 1992, the Government asked the Australian Broadcasting Authority (ABA) to conduct a trial of CTV using the vacant sixth television channel (Channel 31) in Australia.  CTV has operated on a trial basis since 1994.

 

A statutory review of CTV, The Future of Community Television , conducted under clause 60C of Schedule 4 to the BSA, was tabled in Parliament in June 2002. 

 

The review took into account:

 

·          a report on the trial of CTV prepared by the ABA;

 

·          submissions received from interested parties following the release of a discussion paper on digital transmission of CTV; and

 

·          a consultant’s analysis of the costs of digital carriage of CTV.

 

The review concluded that:

 

·          an immediate or short-term transition to digital transmission for the CTV sector is not necessary; and

 

·          consideration should be given to providing greater regulatory certainty and stronger accountability and governance measures for the sector.

 

In August 2002, the Department of Communications, Information Technology and the Arts released a discussion paper on a legislative proposal for regulating CTV and related community broadcasting issues.  Responses to this paper indicated general support for the legislative proposals to provide an environment in which the sector will have greater regulatory certainty with stronger accountability and governance arrangements.

 

Schedule 1 of the Bill responds to the issues raised in the review by establishing a new CTV licensing framework in large part based upon that which is currently in place for community broadcasters in Part 6 of the BSA.  The new framework introduces requirements aimed at improving the corporate governance and accountability of CTV licensees.  The new measures are intended to balance the need for ongoing financial viability of the CTV sector with the need to ensure that the sector maintains its community and not-for-profit nature.

 

The proposed amendments would:

 

·          assist the revenue raising ability of the CTV sector by increasing the period for which a community television broadcasting licensee can broadcast sponsorship announcements from 5 to 7 minutes in any hour (item 12 of Schedule 1);

 

·          improve the corporate governance and accountability of CTV licensees by:

 

-     requiring a CTV licensee to be a company limited by guarantee within the meaning of the Corporations Act 2001 (items 4 and 5 of Schedule 1); and

 

-                       enabling the ABA to impose conditions on all CTV licences dealing with matters such as community access to air-time, governance and provision of annual reports to the ABA (items 6 to 8 of Schedule 1);

 

·          make it clear that it is the Parliament’s intention that CTV services are to be regulated in a manner that causes them not to operate in the same way as commercial television broadcasting services (items 6 to 8 of Schedule 1); and

 

·          draw a balance between the revenue raising requirements for the CTV sector and the community and not-for-profit nature of the sector by imposing conditions on CTV licensees in relation to sale of air-time which:

 

-     prohibit sale of more than 2 hours of air-time in any day to an individual business which operates for profit or as part of a profit-making enterprise (unless it assists education or learning);

 

-                       prohibit sale of more than 8 hours of air-time in any day in aggregate to businesses which operate for profit or as part of profit-making enterprises; and

 

-                       prohibit sale of more than 8 hours of air-time in any day to a particular person (items 6 to 8 of Schedule 1).

 

The new licensing framework will also provide more certainty about access to spectrum for CTV licensees than CTV operators have under the trial arrangements.  Spectrum currently used for CTV broadcasting will be able to continue to be used for analog CTV transmission until 31 December 2006 (the end date of the moratorium for the allocation of new commercial licences specified in section 28 of the BSA).  Arrangements for the digital carriage of CTV broadcasting services will be reconsidered prior to the expiration of the moratorium.  The date the relevant spectrum can be used for analog transmission of CTV would be able to be extended by disallowable instrument to deal with a situation where the Government decides, closer to that time, that analog CTV should continue.  These arrangements will ensure that the relevant spectrum currently used for CTV broadcasting services is available for use for other digital services if alternative arrangements for digital carriage of CTV broadcasting services become available and it is appropriate to cease analog transmission.

 

Items 14 and 15 of Schedule 1 give effect to the necessary legislative requirements by amending the Radiocommunications Act 1992 to ensure that a transmitter licence for a CTV service will have effect only until the later of 31 December 2006 or a date specified in a determination by the Minister.

 

Other provisions will:

 

·          exclude community television services provided to remote Indigenous communities from the definition of a CTV licence as these services will not have the resources to meet the higher governance and accountability requirements placed on CTV licensees (items 1 to 3 and 13 of Schedule 1);

 

·          remove the requirement that the ABA must determine standards in relation to children’s programs that are to be observed by community television licensees (items 9, 10 and 16 of Schedule 1);

 

-                       the requirement for such standards is inappropriate for a sector whose programming is developed by community groups of whom none may produce children’s programming; and

 

·          make a minor technical amendment (item 11 of Schedule 1).

 

Schedule 2 - Community broadcasting licences

 

This Schedule contains amendments to improve licensing arrangements for community broadcasting generally.  The main changes are:

 

·          to reinforce the community and not-for-profit nature of the community broadcasting sector by making it a condition of community broadcasting licences that the licensee will provide the service for community purposes and will not operate the service for profit or as part of a profit-making enterprise (item 10 of Schedule 2);

 

·          to provide the Australian Broadcasting Authority (ABA) with more discretion to review community broadcasting licences when deciding whether to renew them by:

 

-     allowing the ABA to take into account on renewal the same matters that it has regard to in deciding whether to allocate a licence (items 4 and 5 of Schedule 2);

 

-     removing the restriction which limits the ABA when considering issues of suitability to only take into account a narrow range of matters relating to business record, trust and candour and prior convictions (item 1 of Schedule 2); and

 

-     enabling the ABA, when renewing a licence, to consider a change to the community interest the licensee is required to represent (item 9 of Schedule 2);

 

·          to require applications for renewal of community broadcasting licences to be made between 26 weeks and one year before expiry (items 2 and 3 of Schedule 2);

 

-                       the ABA will be able to require a particular licensee to lodge an early renewal application to give itself sufficient time to conduct an investigation or hearing;

 

·          to make a minor amendment to the rule defining a “sponsorship announcement” in the BSA to include an acknowledgment of financial support of a program provided on the licensee’s service (item 8 of Schedule 2);

 

-     the amendment would solve a technical legal problem for community radio stations which broadcast syndicated programs carried by the Community Radio Satellite service which include sponsorship announcements in the source programs;

 

·          allow codes of practice to be developed by industry representatives of community broadcasting licensees whose services target remote Indigenous communities (items 6 and 7 of Schedule 2);

 

-     the amendment is necessary because of the large number of licensed remote Indigenous community television services which need to be treated separately to CTV services.

 

Items 11 and 12 of Schedule 2 contain application and transitional provisions which apply to various items in Schedule 2.

 

Schedule 3 - Political advertisements

 

This Schedule contains items that amend section 28 of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 which provides that the Broadcasting Act 1942 is repealed except for certain provisions.  These provisions relate to Part IIID of that Act which prohibited political advertisements during election periods and provided for free election broadcast time.  That Part was held to be invalid by the High Court in Australian Capital Television v Commonwealth (1992) 177 CLR 106.

 

 

FINANCIAL IMPACT

 

The amendments are expected to have no significant impact on Commonwealth expenditure or revenue.

 



NOTES ON CLAUSES

 

 

Clause 1 - Short title

 

Clause 1 provides for the citation of the Broadcasting Legislation Amendment Act (No. 2) 2002 (the Act).

 

Clause 2 - Commencement

 

Clause 2 of the Bill provides for the commencement of the Act.

 

Schedules 1 and 2, relating to community broadcasting, will commence 28 days after the day on which the Act receives Royal Assent.  Delayed commencement is appropriate for these amendments because the community broadcasting sector and the ABA will need time to prepare for the new licensing arrangements.  In particular, the ABA will need to make an instrument under new section 8B of the BSA determining remote Indigenous communities after Royal Assent, but before Schedules 1 and 2 commence.

 

Schedule 3, and sections 1 to 3 of the Act, will commence on the day the Act receives Royal Assent.

 

Clause 3 - Schedule(s)

 

By virtue of this clause, provisions of the BSA and other Acts are amended as set out in the Schedules to the Bill, and the transitional, application and savings provisions have effect according to their terms.

 

There are three Schedules to the Bill.  The Schedules of the Bill make amendments as follows:

 

·          Schedule 1 - BSA and RA;

 

·          Schedule 2 - BSA;

 

·          Schedule 3 - Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 .

 



Schedule 1 - CTV licences

 

Schedule 1 amends the BSA and the RA to improve the regulatory framework for the community television (CTV) sector.  The new CTV licensing framework will be based on that which is currently in place for community broadcasters in Part 6 of the BSA, with some changes applying specifically to CTV broadcasting licences.

 

More stringent governance and accountability requirements will be imposed on CTV licensees through the imposition of additional licence conditions.  However, these changes will not apply to a licensee providing a community television broadcasting service that targets, to a significant extent, a remote Indigenous community.  New arrangements are provided for program standards and codes of practice for community television broadcasting services.  Provision is also made for changes to be made to planning provisions for broadcasting spectrum in the RA to give CTV broadcasters more certainty than they have under the current trial arrangements.

 

Part 1 - Amendments

 

Broadcasting Services Act 1992

 

Item 1 - Subsection 6(1)

 

Item 1 inserts a definition for the new term, “CTV licence”, in subsection 6(1).  The definition is based on the existing definition of community broadcasting licence, but specifies that the service provides television programs.

 

A service that is targeted, to a significant extent, to one or more “remote Indigenous communities” (see items 2 and 3 below) is excluded from the definition of CTV licence and hence from the amendments relating to CTV licensing.  At present, these do not have the resources to meet the higher governance and accountability requirements placed on CTV licensees. 

 

Item 2 - Subsection 6(1)

 

Item 2 inserts a signpost definition of  “remote Indigenous community”, pointing to new section 8B of the BSA, inserted by item 3.



Item 3 - After section 8A

 

Item 3 inserts new section 8B into the BSA, which defines a “remote Indigenous community”.

 

Subsection 8B(1) provides that a particular Indigenous community is a remote Indigenous community if so determined by the ABA.  The determination must be made in writing. 

 

Subsection 8B(2) provides that a determination made by the ABA under subsection 8B(1) is a disallowable instrument.

 

A large number of television services provided to remote Indigenous communities were developed under the Broadcasting for Remote Aboriginal Communities Scheme.  These services are currently licensed as community television broadcasting services under the BSA.  The instrument under new section 8B will identify the relevant remote communities whose services will not be subject to the more stringent regulatory requirements applying to CTV licensees.

 

Item 4 - Subsection 81(1)

 

Item 4 repeals the existing subsection 81(1), and substitutes new subsection 81(1).

 

The substantive difference between the existing and new provisions is new paragraph 81(1)(a), which has the effect that a CTV licence can only be issued to a company limited by guarantee (within the meaning of the Corporations Act 2001 ).  This will ensure that CTV licensees are subject to appropriate accountability and reporting requirements imposed by the Corporations Act 2001 .

 

New paragraph 81(1)(b) effectively re-enacts the existing suitability requirements.  It provides that a licence will not be issued if the ABA decides that subsection 83(2) applies to the applicant.  Under subsection 83(2), if the ABA is satisfied that allowing a particular company to provide community broadcasting services would lead to a significant risk of an offence against the BSA or the regulations, or a breach of a licence condition, the community broadcasting licence will not be issued.

 

Item 5 - Subsection 81(2)

 

Item 5 makes a minor technical amendment to subsection 81(2) as a consequence of item 4 above.

 

Item 6 - At the end of section 86

 

Item 6 inserts new subsection 86(2).

 

Existing section 86 provides that each community broadcasting licence is subject to the conditions set out in Part 5 of Schedule 2 (paragraph 86(a)), and any other conditions imposed under section 87 (paragraph 86(b)).

 

New subsection 86(2) provides that in addition to the above conditions, a CTV licensee will also be subject to any conditions imposed under the new section 87A (see item 8 of this Schedule).

 

Item 7 - At the end of subsection 87(5)

 

Item 7 inserts new paragraph 87(5)(c).

 

Existing subsection 87(1) provides that the ABA may, by notice in writing, vary or revoke a condition of the licence, or impose an additional condition on a particular community broadcasting licence.

 

Existing subsection 87(5) provides that a notice given under subsection 87(1) must not be inconsistent with determinations and clarifications under section 19 (paragraph 87(5)(a)), or standard conditions set out in Part 5 of Schedule 2 of the BSA (paragraph 87(5)(b)).

 

New paragraph 87(5)(c) provides that where the licence is a CTV licence, a determination made under subsection 87(1) must not be inconsistent with any conditions imposed under new section 87A (see item 8 of this Schedule).

 

Item 8 - After section 87

 

Item 8 inserts new section 87A into the BSA.

 

Section 87A imposes additional conditions on all CTV licensees and provides a mechanism for the ABA to impose further conditions.  New subsection 87A(1) makes it clear that it is the Parliament’s intention that CTV services are to be regulated in a manner that causes them not to operate in the same way as commercial television broadcasting services. 

 

Additional standard conditions relating to sale of access to air-time

 

The ABA would have regard to the Parliament’s intention as expressed in new subsection 87A(1) in exercising its powers under new section 87A.

 

The conditions relating to sale of access to air-time imposed by new subsections 87A(2) to (5) are intended to draw a balance between the revenue raising requirements for the CTV sector and the community and not-for-profit nature of the sector.

 

New subsection 87A(2) imposes a condition on all CTV licences preventing a licensee from selling access to more than 2 hours of air-time per day to any person who operates a business for profit or as part of a profit-making enterprise.  The condition in subsection (2) does not apply to sale of air-time to a company that has a sole or dominant purpose of assisting a person in education or learning.  This is intended to allow the sale of more than 2 hours of air-time per day by CTV licensees to commercial subsidiaries of universities and other educational institutions.

 

New subsection (3) imposes a condition on all CTV licences preventing a licensee from selling access to a combined total of more than 8 hours of air-time per day to people who operate businesses for profit or as part of a profit-making enterprise.

 

New subsection (4) imposes an additional condition on all CTV licenses preventing a licensee from selling access to more than 8 hours of air-time per day to a particular person.

 

New subsection (5) is an anti-avoidance measure.  It is aimed at preventing businesses from entering into contrived arrangements to purchase air-time from CTV licensees in excess of the limits by splitting purchases amongst related companies or amongst persons in a position to exercise control of the company such as directors or senior executives.  For the purposes of subsections (2) to (4), subsection (5) treats sale of access to air-time to a person who is in a position to exercise control of the company as sale to the company itself.  The existing control provisions (the definition of “control” in section 6, and Schedule 1) will apply here.  Subsection (5) also treats sale of access to air-time to a “related body corporate” (within the meaning of the Corporations Act 2001 ) as sale to the company itself.

 

New subsection (12) defines the terms “sell”, “access” and “air-time” so that in effect sale of access to air-time means a licensee entering into an arrangement under which a person (usually the licensee) receives consideration in cash or kind in return for providing a third party the right to select or provide programs to be broadcast on the licensee’s service during a period of time.

 

Additional conditions imposed by the ABA relating to sale of access to air-time

 

New subsection (6) allows the ABA to impose, by written determination, other conditions relating to sale of access to air-time on all CTV licences.  This power would need to be exercised if, over time, CTV licensees were to become too commercial in character as a result of sale of air-time activities.

 

Additional conditions imposed by the ABA relating to other matters

 

New subsection (7) allows the ABA to impose, by disallowable instrument, other conditions on all CTV licences.  The ABA may, for example, impose conditions relating to:

 

a)         community access to air-time;

 

b)         the governance of CTV licensees; and

 

c)         the provision of annual reports to the ABA.

 

Paragraph 87A(7)(a), which refers to community access to air-time, enables minimum obligations for community access to be set.  The ABA may seek to impose minimum access and programming obligations to ensure that relevant community stakeholders have sufficient access to air time on the service.

 

Paragraph 87A(7)(b) refers to conditions relating to the governance of a licensee.  An example of a condition which could be imposed in relation to governance of a CTV licence is a requirement to include provisions in the constitution of the company which require members of the company to be not-for-profit organisations.

 

Paragraph 87A(7)(c) specifically allows the ABA to require the provision of annual reports, and to require that reports be provided in an approved form.  This is intended to ensure the ABA can effectively monitor the management of the CTV service and the CTV licensee’s compliance with licence conditions.

 

These examples do not limit the conditions which may be imposed under subsection (7).

 

Changes to conditions

 

New subsection 87A(8) provides that the ABA may, by written determination, vary or revoke any condition imposed by or under section 87A.

 

This power extends to the conditions relating to sale of access to air-time imposed by subsections (2) to (5) above.  This flexibility is important so that the ABA is able to adjust the conditions as appropriate in light of its experience of their operation and the needs of the sector.  In particular, the conditions may need to be varied if it becomes apparent that businesses are entering into contrived arrangements to avoid their operation and the non-commercial nature of the sector is consequently put at risk.

 

New subsection 87A(9) provides that the ABA must, before taking any action in relation to licence conditions under subsection (6), (7) or (8), seek public comment on the proposed action.

 

New subsection 87A(10) provides that any action taken by the ABA under subsection (6), (7) or (8) must not be inconsistent with determinations and clarifications under section 19 (paragraph 87A(10)(a)), or conditions set out in Part 5 of Schedule 2 of the BSA (paragraph 87A(10)(b)).  This provision ensures that any additional conditions imposed by the ABA on CTV licensees will not conflict with the standard conditions applying to all community broadcasters.

 

The ABA would be expected to take into account the general policy underlying section 87A, set out in subsection 87A(1) above, when it considers either the desirability of taking action under subsection (6), (7) or (8) to change the section 87A conditions, or the detail of any proposed changes to the conditions.

 

Any action by the ABA under subsection (6), (7) or (8) would also be subject to Parliamentary scrutiny through the disallowance process (see new subsection (11)).

 

Item 9 - Subsection 122(1)

 

Item 10 - Subsection 122(3)

 

The substantive effect of the amendments made by items 9 and 10 is to remove the obligation on the ABA to determine mandatory standards for community television broadcasters relating to children’s programs (see existing paragraph 122(1)(b) and subsection 122(3)).  The requirement for such standards is inappropriate for a sector whose programming is developed by community groups of whom none may produce children’s programming.

 

The existing requirements in section 122 for standards for commercial television relating to children’s programs and Australian content are unaffected.

 

Item 11 - Paragraph 9(1)(b) of Schedule 2

 

Item 11 makes a technical correction to paragraph 9(1)(b) of Schedule 2 of the BSA.

 

Item 12 - Subclause 9(3) of Schedule 2

 

Item 12 provides that subclause 9(3) of Schedule 2 of the BSA is repealed, and new subclause 9(3) of Schedule 2 is substituted. 

 

The substantive difference between the existing and the new provision is to increase the maximum amount of sponsorship announcements which may be broadcast by community television broadcasting licensees from 5 minutes per hour to 7 minutes per hour.  This is intended to assist the revenue raising ability of the CTV sector. 

 

Item 13 - Subclause 9(6) of Schedule 2

 

Item 13 amends subclause 9(6) of Schedule 2 as a consequence of the new provisions which exclude remote Indigenous community services from the new CTV licensing arrangements (see items 1 to 3 above).

 

Radiocommunications Act 1992

 

Item 14 - Subsection 103(4)

 

Item 15 - After subsection 103(4)

 

The amendments made by items 14 and 15 will provide more certainty about access to spectrum for CTV licensees than CTV operators have under the trial arrangements. 

 

Items 14 and 15 amend section 103 of the Radiocommunications Act 1992 .  The significant substantive difference between the existing and new provision is new paragraph 103(4A)(c).  (New paragraphs 103(4A)(a) and (b) correspond to the existing provisions in paragraphs 103(4)(a) and (b).) 

 

The effect of the amendments is that spectrum currently used for CTV broadcasting will be able to continue to be used for analog CTV transmission until 31 December 2006, which is the end date of the moratorium for the allocation of new commercial licences specified in section 28 of the BSA (see new subparagraph 103(4A)(c)(i)).  Arrangements for the digital carriage of CTV broadcasting services will be reconsidered prior to the expiration of the moratorium. 

 

The date the relevant spectrum can be used for analog transmission of CTV will be able to be extended by disallowable instrument to deal with a situation where the Government decides, closer to that time, that analog CTV should continue (see new subparagraph 103(4A)(c)(ii) and subsection 103(4B)). 

 

These arrangements will ensure that the relevant spectrum currently used for CTV broadcasting services is available for use for other digital services if alternative arrangements for digital carriage of CTV broadcasting services become available and it is appropriate to cease analog transmission.

 

Part 2 - Saving provision

 

Item 16 - Saving provision relating to item 9

 

Item 16 is a saving provision related to item 9, which amends the standard-setting power in section 122 of the BSA.  Item 16 ensures the continued validity of standards made by the ABA under section 122 before commencement. 

 



Schedule 2 - Community broadcasting licences

 

Part 1 - Amendments

 

Broadcasting Services Act 1992

 

Item 1 - Subsection 83(3)

 

Item 1 amends subsection 83(3) so that the ABA, when considering whether or not an applicant is a suitable company for allocation of a community broadcasting licence, is not limited to considering only the narrow range of matters relating to business record, trust and candour and prior convictions set out in that subsection.

 

The amendment will make section 83 consistent with section 41, which is the equivalent provision for commercial broadcasting licences. 

 

Item 2 - Subsection 90(1)

 

Item 3 - After subsection 90(1)

 

Section 90 currently requires an application for renewal of a community broadcasting licence to be made between 20 weeks and one year before expiry.  Items 2 and 3 amend section 90 to require the renewal application to be made between 26 weeks and one year before expiry (see new paragraph 90(1A)(a)).

 

The ABA will be able to require a particular licensee to lodge an early renewal application (see new paragraph 90(1A)(b)).

 

It is expected that the ABA would choose to notify an applicant that an application for renewal will be due earlier than the due date where the ABA is aware of concerns about the operation of a service and decides that a renewal investigation or hearing will be necessary.  Specific criteria are not imposed to limit the exercise of the power to alter the renewal date as it is intended that the ABA have administrative flexibility in determining when an early application for renewal is warranted. 

 

It is not proposed to grant a licensee a right to merits review in respect of the decision to require a renewal application to be made by an earlier date specified by the ABA.  The decision to move the closing date for applications forward is a procedural matter, and providing a right to merits review in respect of this decision would potentially frustrate and delay the administrative process.  The rights of the licensee to adequate notice of the change are protected by the requirement that at least 4 weeks notice be given by the ABA (see new subsection 90(1B)).  This will give the licensee sufficient time to comply with the new deadline.

 

Item 4 - Subsection 91(1)

 

Item 5 - After subsection 91(2)

 

Items 4 and 5 amend section 91 of the BSA to allow the ABA to take into account on renewal the same matters that it has regard to under subsection 84(2) in deciding whether to allocate a licence (see in particular new subsection 91(2A)). 

 

The amendments thus allow the ABA to refuse to renew a licence where the applicant no longer meets the criteria set out in subsection 84(2).  For example, the ABA may refuse to renew a licence where the licensee no longer has the capacity to provide the service (paragraph 84(2)(c)).

 

It will not be mandatory for the ABA to give detailed consideration to every licence renewal application against the criteria in subsection 84(2).  Rather, the ABA will have a discretion as to whether it conducts a renewal inquiry, and as to the matters it considers in any inquiry.  For most community licence renewals, it is expected that the ABA will not have received substantial complaints about the service and will not consider it necessary to have regard to the matters in paragraphs 84(2)(a) to (f).

 

It is not proposed to provide a licensee seeking renewal of a licence with a right to seek merits review where the ABA exercises its power to refuse to renew a licence.  A decision made by the ABA under subsection 84(2) of the BSA to allocate a licence is not subject to merits review (section 84(2) is not listed in section 204 of the BSA, which sets out those matters which may be appealed to the Administrative Appeals Tribunal).  As the allocation decision is not reviewable, it would not be appropriate for the corresponding decision on renewal of the licence to be reviewable.



Item 6 - Paragraph 123(1)(b)

 

Item 7 - After paragraph 123(1)(b)

 

The amendments to section 123 made by items 6 and 7 allow separate codes of practice to be developed under new paragraph 123(1)(ba) by industry representatives of community broadcasting licensees whose services target remote Indigenous communities.  This is necessary because of the large number of remote Indigenous community television services which need to be treated differently to CTV services.  The amendments will give remote Indigenous community broadcasters the flexibility to develop codes that better meet their circumstances.

 

Item 8 - Paragraph 2(2)(b) of Schedule 2

 

Item 8 makes a minor amendment to the provision which defines a “sponsorship announcement” so that it includes an acknowledgment of financial support of a program provided on the licensee’s service.  Currently a sponsorship announcement must acknowledge financial support of the licensee.

 

The amendment will solve a technical legal problem for community radio stations which broadcast syndicated programs carried by the Community Radio Satellite service.  Some of these syndicated programs include sponsorship announcements acknowledging support of the station that produced the source program, rather than the station retransmitting the program. 

 

Item 9 - Paragraph 9(2)(b) of Schedule 2

 

The licence condition in existing paragraph 9(2)(b) of Schedule 2 requires a community broadcasting licensee to continue to represent the community interest that it represented when the licence was allocated. 

 

Item 9 amends that condition so that it requires the licensee to continue to represent the community interest that it represented when the license was allocated or last renewed.  This will enable the ABA, when renewing a licence, to consider a change to the community interest that the licensee is required to represent.  The amendment recognises that a community broadcasting service should be able to evolve with the community, and would allow the ABA to consider a submission from a licensee that the community interest it represents has evolved since the licence was allocated. 

 

Item 10 - At the end of subclause 9(2) of Schedule 2

 

Existing subclause 9(2) of Schedule 2 of the BSA sets out standard licence conditions applying to all community broadcasting licensees.  Item 10 adds new standard licence conditions to subclause 9(2) of Schedule 2 (new paragraphs 9(2)(d) and 9(2)(e)).

 

Paragraph 9(2)(d) obliges the community broadcasting licensee to provide the broadcasting service for community purposes.  Paragraph 9(2)(e) requires the licensee not to operate the service for profit or as part of a profit-making enterprise. 

 

Both of these additional licence conditions are intended to reinforce the community and not-for-profit nature of the community broadcasting sector, consistently with the definition of “community broadcasting services” in paragraphs 15(a) and (b) of the BSA.  The licence conditions reinforce the distinction between community broadcasting and commercial broadcasting, and ensure that the licensee is focused on servicing the needs of the relevant community.

 

Part 2 - Application and transitional provisions

 

Item 11 - Application of items 2 and 3

 

Item 11 covers the circumstance where a licensee is less than 30 weeks away from the expiry of its licence at the time the amendments commence. 

 

This item provides that in these situations, existing section 90 will apply, giving the licensee until 20 weeks before expiry to make its renewal application.

 

Item 12 - Transitional provision relating to items 6 and 7

 

Item 12 is a transitional provision which relates to items 6 and 7, the items amending section 123 of the BSA, which deals with codes of practice for classes of licensees.

 

An existing registered code of practice applicable to all community radio broadcasting licensees will continue to apply until:

 

·          in the case of non-Indigenous community radio broadcasters, either:

 

-         a code for non-Indigenous community radio broadcasters is registered (see subitem 12(1) and paragraph 12(2)(a)); or

 

-         a general replacement code for all community radio broadcasters is registered within 3 months of the commencement of the Act (see subitem 12(1), paragraph 12(2)(b) and subitem 12(7)); and

 

·          in the case of Indigenous community radio broadcasters, either:

 

-         a code for Indigenous community radio broadcasters is registered (see subitem 12(1) and paragraph 12(3)(a)); or

 

-         a general replacement code for all community radio broadcasters is registered within 3 months of the commencement of the Act (see subitem 12(1), paragraph 12(3)(b) and subitem 12(7)). 

 

If a general replacement code for all community radio broadcasters is registered within 3 months of the commencement of the Act, that general replacement code will operate as if the amendments to section 123 had not been made (see subitems 12(4) and 12(7)), until:

 

·          in the case of non-Indigenous community radio broadcasters, a code for non-Indigenous community radio broadcasters is registered (see subitem 12(5)); and

 

·          in the case of Indigenous community radio broadcasters, a code for Indigenous community radio broadcasters is registered (see subitem 12(6)).

 

This provision ensures the continued operation of the existing community radio broadcasting code, and allows a replacement code to be registered to govern the broadcasting operations of all community radio licensees for the duration of the period from the commencement of the Act until the registration of separate codes of practice for Indigenous and non-Indigenous community broadcasting licensees under the new paragraphs 123(b) and 123(ba) of the BSA.  Such a replacement code would continue in force until such time as codes of practice were developed for those subclasses under the new provisions, and these codes were included on the Register of codes of practice. 

 



Schedule 3 - Political advertisements

 

Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992

 

Item 1 - Subsection 28(1)

 

Item 2 - Subsections 28(2) and (3)

 

This Schedule contains items that amend section 28 of the Broadcasting Services (Transitional Provisions and Consequential Amendments) Act 1992 (the Transitional Act).  Section 28 of the Transitional Act provides that the Broadcasting Act 1942 (the 1942 Act) is repealed except for certain provisions.  The provisions which were not repealed relate to Part IIID of the 1942 Act, which prohibited political advertisements during election periods and provided for free election broadcast time.  That Part was held to be invalid by the High Court in Australian Capital Television v Commonwealth (1992) 177 CLR 106.

 

Items 1 and 2 amend section 28 of the Transitional Act so that the remaining provisions of the 1942 Act are repealed.